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Appeal No. 51 of 1972.
(From the judgment and order dated the 16th Oct., 1970 of the.
Gujarat High Court in I.T. Ref.
No. 4 of 1967) 221 V.S. Desai, J. Ramamurthi and Girish Chandra, for the appel lant.
B. Sen, Mrs. ,4.
K. Verma, K.J. John and Shri Narain for the respondents.
Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the judgment of Gujarat High Court whereby the High Court an swered the following question referred to it under section 256(1) of the Income tax Act, 1961 (hereinafter referred to as the Act of 1961) in favour of the assessee respondent and against the revenue: "Whether on the facts and in the circumstances of the case, there was a transfer of a capital asset within the meaning of section 45 read with section 2(47) of the Income tax Act, 1961 ?" The matter relates to the assessment year 1962 63, for which the accounting previous year was calendar year 1961.
The assessee who is an individual held 192 shares of Kawelengoji Ginneries Ltd., Kampala, a private limited company incorporated in Uganda (hereinafter referred to as the Uganda company).
Those shares were acquired by the assessee sometimes before January 1, 1954 and he paid Sh.
1000 for each share.
The amount thus paid by the assessee for the 192 shares was Sh.
1,92,000, equivalent to Rs.28,000.
The said company went into voluntary liquidation as per special resolution dated July 10, 1961.
The liquida tors sold the assets of the company in due course and the liquidators account was finally drawn up on July 31, 1961.
As per this account, the assessee became entitled to receive Sh.
4,68,489 at the rate of Sh.
2440.0493 per share as return of capital.
The above amount was equivalent to Rs.3,12,326.
There was thus an excess of Rs.1,84,326.
This amount was received by the assessee during the accounting year.
The Income tax Officer treated the amount of Rs.1,84,326 as capital gains liable to tax within the meaning of section 45 of the Act of 1961.
It was pointed out by him that the Uganda company was not a company within the meaning of section 2(17) of the Act of 1961 and the shareholders thereof could not be said to be entitled to the benefit provided under section 46(2) of the Act of 1961.
Accord ingly, the entire amount was liable to be taxed as above.
On appeal before the Appellate Assistant Commissioner refer ence was made on behalf of the assessee to the definition of the word "transfer" in section 2(47) of the Act of 1961.
according to which transfer in relation to a capital asset includes the sale, exchange or relinquishment of the asset or the extinguishment of any rights therein or the compulsory acquisition thereof under any law.
There was no dispute that the present was not a case of sale, exchange or compulsory acquisition of capital asset within the meaning of section 2(47) of the Act of 1961.
The only question was whether there was "relinquishment of the asset or the extinguishment of any rights therein".
The Appellate Assistant Commissioner held that for the relinquishment of an asset, the asset must 222 continue to be in existence.
Applying that criterion, the Appellate Assistant Commissioner held that there was no relinquishment of the asset.
There was, however, in the opinion of the Appellate Assistant Commissioner, extinguish ment of the rights in the capital assets as represented by the shares and therefore the amount was liable to be taxed to capital gains tax.
The appeal of the assessee was ac cordingly dismissed.
On second appeal the assessee, apart from contesting the taxability of the amount of Rs.1,84,326 as capital gains, raised two other contentions.
One of those contentions was that in any event the capital gains should have been computed by deducting the fair market value of the asset as on January 1, 1954 from the amount received by the assessee.
The other contention was that having regard to the provisions of section 114 of the Act of 1961 the levy of capital gains tax should have been much less than the amount actually calculated by the Income tax Officer.
We are in the present case not concerned with the second con tention.
The first of these two contentions was, however, accepted and it was held that taking into account the value of the shares as on January 1, 1954 the capital gain, if chargeable, would work out to be Rs.1,23,590.
The Tribunal then went into the question as to whether there was transfer of capital assets and came to the conclusion that there was no such transfer within the meaning of section 2(47) of the Act of 1961.
The contention of the revenue that there had been extinguishment of the rights of the assessee was re pelled.
In the result the appeal of the assessee was ac cepted.
On the application made by the appellant, the question reproduced above was then referred to the High Court.
The High Court in answering the question referred to it in the negative, held that the transfer contemplated by section 45 should be one as a result of which consideration is received by the assessee or accrues to him.
When a shareholder receives moneys representing his share on dis tribution of the net assets of the company in liquidation, he, in the opinion of the High Court, receives such moneys in satisfaction of the right which belongs to him by virtue of his holding the share and not by way of consideration for the extinguishment of his right in the share.
The High Court accordingly concluded that when a shareholder receives his share on final distribution of the assets of the company in liquidation, there is no transfer of capital assets by him which would attract the charge of capital gains tax.
The judgment of the High Court is reported in Before proceeding further, we may mention that tax on capital gains was charged for the first time by the Income tax and Excess Profits Tax (Amendment)Act, 1947 (Act 22 of 1947) which inserted section 12 B in the Indian Income tax Act, 1922.
It taxed capital gains arising after March 31, 1946.
The tax on capital gains was virtually abolished by the Indian Finance Act, 1949 which confined the operation of section 12 B to capital gains arising before April 1, 1948.
Capital gains tax was.
however.
revived with effect from April 1. 1957 by the Finance (No. which insert ed new section 12 B instead of the old section 12 B in the Act of 1922.
223 In the present appeal we are, however, concerned with the Act of 1961.
It may be appropriate at this stage to refer to the relevant provisions of that Act at the material time.
Section 2(14) of the Act defined capital assets to mean property of any kind held by an assessee, whether or not connected with his business or profession, but does not include certain categories of property which need not be mentioned as we are not concerned with them.
It is the common case of the parties that the shares held by the assessee in the Uganda company constituted capital asset.
"Company" has been defined in Section 2(17) of the Act to mean (i) any Indian company, or (ii) any association, whether incorporated or not and whether Indian or non Indian, which is or was assesable or was assessed under the Indian Income tax Act, 1922 (XI of 1922), as a company for the assessment year commencing_from the 1st day of April, 1947, o.r which is declared by general of special order of the Board to be a company for the purposes of the Act.
The learned counsel for the parties are agreed that the Uganda company was not a company within the meaning of the word "company" as given in the above provision.
Transfer in relation to a capital asset has been defined in clause (47) of section 2 of the Act, and the definition reads as under: "(47) 'transfer ' in relation to a capi tal asset, includes the sale, exchange or relinquishment of the asset or the extin guishment of any rights therein or the compulsory acquisition thereof under any law;" Section 45 deals with the levy of tax on capital gains, and reads as under: "45 Capital gains.
Any profits o.r gains 'arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in section 53 and 54, be chargeable to income tax under the head 'Capital gains ' and shall be deemed to be the income of the previous year in which the transfer took place.
" Section 45 deals with the levy of tax on capital gains, and reads as by companies in liquidation reads as under: "46.
Capital gains on distribution of assets by companies in liquidation. (1) Notwithstanding anything contained in section 45, where the assets of a company are dis tributed to its shareholders on its liquida tion, such distribution shall not be regarded as a transfer by the company for the purposes of section 45.
(2) Where a shareholder on the liquidi sation of a company receives any money or other assets from the company, he shall be chargeable to income tax under the head 'Capital gains ', in respect of the money so received or the market 224 value of the other assets on the date of distribution, as reduced by the amount assessed as dividend within the meaning of sub clause (c) of clause (22) of section 2 and the sum so arrived at shall be deemed to be the full value of tire consideration for the purposes of section 48.
" Section 47 specifies some of the transactions which shall not be regarded as transfers.
Section 48 prescribes the mode of computation and deductions in the matter of tax on capital gains.
There can be no dispute that the amount received by the assessee in respect of the 192 shares of the Uganda company held by him in excess of the cost of acquisition of those shares constituted profits or gains.
The question with which we are concerned is whether those profits or gains arose from a transfer of the capital assets.
The argument of Mr. Desai, learned counsel for the appellant, is that when the assessee received the sum of Sh.
4,68,489 in lieu of the 192 shares held by him in the Uganda company, he received that amount as a result of transfer.
The word "transfer" in relation to a capital asset.
according to the learned counsel, includes extinguishment of any rights therein.
The words "extinguishment of any rights therein", it is submitted, would cover the case of the assessee when he received the amount mentioned above on account of the shares held by him in the Uganda company.
The above conten tion has been controverted by Mr. Sen who was urged that there was no transfer contemplated by law as to attract the levy of tax on capital gains.
After giving the matter our earnest consideration, we are of the opinion that the con tention of Mr. Sen is well founded.
The question as to whether the distribution of assets of a company has gone into voluntary liquidation to its share holder would amount to sale, exchange, relinquishment or transfer within the meaning of section 12 B of the Act of 1922 as amended in 1956 was considered by this Court in the case of Commissioner of Income tax, Madras vs Madurai Mills Co. Ltd.(1) While answering that question in the negative, this Court held that the act of the liquidators in distrib uting the assets of the company which had gone into volun tary liquidation did not result in the creation of new rights.
It merely entailed recognition of the legal rights which were in existence prior to the distribution.
This Court further observed "When a shareholder receives money representing his share on distribution of the net assets of the company in liquidation.
he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer.
" The above observations, though made in the context of sec tion 12 B of the Act of 1922 which related to capital gains in respect of profits or gains arising from sale, exchange.
relinquishment or transfer of capital assets, in our opin ion, would also cover the case of extinguishment of any rights in capital assets.
(1) 225 The matter can also be looked at from another angle.
In the case of Indian companies and the other companies falling within the definition of company, as given in section 2(17) of the Act of 1961, the legislature, has made.
express provision in sub section (2) of section 46 of the Act that where a shareholder on the liquidation of a company receives any money or other assets from the company, he shall be chargeable.
to income tax under the head "Capital gains" in respect of the money so received or the market value of the other assets on the date of distribution as reduced by certain amounts which need not be specified.
But for this provision, it would not have been possible, in our opinion, to charge tax under the head "Capital gains" on the money or other assets of a company received by its shareholder on its liquidation.
The provisions of sub section (2) of section 46, as already mentioned, apply only to the distribution of assets by such companies in liquidation as are covered by the definition of the word "company" in section 2(17) of the Act.
The legislature having made no similar provision in respect of companies other than those which fall within the definition contained in section 2(17), we find it difficult to sustain the levy of tax on capital gains when such other companies distribute assets on liquidation to share holders.
We are not impressed by the argument of Mr. Desai that section 46(2) does not create liability of a share holder to pay tax on capital gains which liability, according to the learned counsel, arises because of section 45, but was enacted with a view to prescribe the mode of calculating capital gains in the event of distribution of the assets of a company in liquidation to its share holders.
The afore said section, in our view, was enacted.
both with a view to make shareholders liable for payment of tax on capital gains as well as to prescribe the mode of calculating the capital gains to the shareholders on the distribution assets by a company in liquidation.
But for that sub section, as already mentioned, it would have been difficult to.
levy tax on capital gains to the shareholders on distribution of assets by a company in liquidation.
Mr. Desai took us through the legislative history of the provisions relating to the levy of tax on capital gains.
A similar attempt was made by the learned counsel for the revenue in the case.
of Madurai Mills (supra) and this Court observed that consideration stemming from legislative histo ry cannot be allowed to override the plain words of a stat ute.
As a result of the above, we dismiss the appeal with costs.
P.H.P. Appeal dismissed.
| IN-Abs | The respondent assessee acquired before 1 1 1954 certain shares in a private limited company incorporated in Uganda for Sh.
192002 Rs.1,28,000/ .
The said company went into voluntary liquidation in the year 1961.
The liquidators, sold the assets of the company and the assessee received an amount equivalent to Rs.3,12,326/ .
The Income Tax Officer treated the difference between the amount received on liqui dation and the amount paid by the assessee for the acquisi tion of shares as capital gains liable to tax within section 45 of the Income Tax Act, 1961.
The Income Tax Officer held that since the Uganda company was not a company within the meaning of section 2(17) of the Act, the assessee was not enti tled to the benefit of section 46(2) and, therefore, the entire amount was liable to.
be taxed.
On an.
appeal, the AAC held that the transaction amounted to a transfer within the meaning of section 2(47) because there was extinguishment of the rights in the capital assets as represented by the shares.
The Tribunal held that it was not transfer within the mean ing of section 2(47).
The High Court decided the reference in favour of the assessee on the ground that when a shareholder received monies representing his share on distribution of the net assets of the company in liquidation, he receives such monies in satisfaction of the right which belongs to him by virtue of his holding the share and not by way of consideration for the extinguishment of his right in the share.
Dismissing the appeal by certificate, HELD: (1) The Uganda company is not a company within the meaning of section 2(17).
There was no transfer as contemplated by the Act to attract the.
levy of capital gain tax.
This Court in the case of Madurai Mills has already held that the act of liquidation in distributing the assets of the company which.
had gone into voluntary liquidation did not result in the creation of new rights.
It merely entailed recognition of the legal rights which were in existence prior to the distribution.
[223 C, 224 E F] Commissioner of Income tax, Madras vs Madurai Mills Co. Ltd., , followed.
(2) The legislature made express provisions in section 46(2) for levying capital gains tax in respect of distribution of assets of a company.
But for the said provision distribution of assets on the liquidation of a company would not attract the capital gains tax under section 45.
Since the Uganda company is not a company within the meaning of the Act the provi sions of section 46(2) do not apply to it.
The said distribu tion, therefore, does not attract capital gains tax.
Section 46(2) creates the liabality of a shareholder to pay the tax on capital gains and also prescribes the mode of calculat ing the capital gains.
[225 A F]
|
Appeal No. 297 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 16 10 74 of the Allahabad High Court in Special Appeal No. 169/72.
S.T. Desai, M.K. Garg, K.B. Rohtagi, V.K. Jain and M.M. Kashyap, for the Appellant.
O.P. Rana for Respondents 1 4.
V.M. Tarkunde, Pramod Swarup and R.S. Verma for Respond ent No. 5.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave is against the judgment of a Division Bench of the Allahabad High Court, reversing on appeal the decision of learned single Judge, whereby notification dated April 23, 1966 issued by the State Government under section 7(1) of the U.P. Land Acqui sition (Rehabilitation of Refugees) Act, 1948 (hereinafter referred to as the Act) had been quashed.
As a result of the decision of the Division Bench, the writ petition filed by the appellants to quash that notification stood dis missed.
The Sufferers ' Co operative Housing Society, Jaunpur, respondent, applied to the Uttar Pradesh Government in 1955 for acquiring four acres of land for the purpose of erecting houses, shops and workshops for the rehabilitation of the refugees who were members of that society.
At the instance of the State Government, the society deposited a sum of Rs.15,000 towards the cost of the land to be acquired.
In 1964, the society entered into an agreement with the State Government under section 6 of the Act.
The State Government thereafter published on April 23, 1966, the impugned notifi cation and the same reads as under: "Under sub section (1 ) of section 7 of the U.P. Land Acquisition (Rehabilitation of Refugees) Act No. XXVI of 1948, the Governor of Uttar Pradesh is pleased to declare that he is satisfied that the land mentioned in the Schedule is needed and is suitable for the erection of houses, shops and 228 workshops for the rehabilitation of displaced persons and/ or for the provision of amenities directly connected therewith.
All the persons interested in the land in question are, therefore, required to appear personally or by duly autho rised agent before the Compensation Officer of the Distt.
at Jaunpur on the twenty seventh day of April 1966, with neces sary documentary or other evidence for the determination of the amount of compensation under section 11 of the Act.
The Collector of Jaunpur is directed to take possession of the aforesaid land fourteen days after the publication of this notice in the official gazette.
Upon the publication of this notice, the aforesaid land shall be deemed to have been acquired permanently and shall vest absolutely in the State Government free from all encum brances from.
the beginning of the day on which the notice is so published.
SCHEDULE Distt.
Pargana Mauza Municipality PlotNo.
Area Cantonment, Town area or Notified area 154 Mohalla Diwan Shah Kabir alias 152/1 1,00 Tartala Pargana Haveli, Tahsil 152/2 Jaunpur Municipal Area 149 Jaunpur 153 2 shops No. 6 and 7 For what purpose required: for the rehabilitation of displaced persons.
Note: A copy of the site plan may be inspected at the office of the Collector, Jaunpur.
" Subsequent to that notification, the Land Acquisition Offi cer determined the amount of compensation for the land and shops to be acquired at a little over rupees forty one thousand.
The balance of the amount to be paid as compensa tion was thereafter deposited by the society.
On April 10, 1970 the appellants, claiming to be the owners of a part of the land sought to be acquired, fried petition under article 226 of the Constitution of India in the Allahabad High Court with a prayer for quashing the impugned notification.
The notification was assailed on the following three grounds: (1) The notification did not properly specify the lands sought to be acquired; (2) The notification was ultra vires the Act inasmuch as it sought to acquire lands for the rehabilitation of the displaced persons and not for the rehabilitation of refugees; and (3) The notification was not in accordance with the provisions of section 7(1) of the Act.
229 The learned single Judge, while allowing the writ peti tion, did not go into the first ground.
He, however, accepted the second and third grounds and in the result quashed the notification.
On the second ground, the learned Judge referred to the definition in section 2(7) of the Act, according to which refugee means any person who was a resident in any place forming part of Pakistan and who, on account of partition of civil disturbances or the fear of such disturbance, has on or after the first day of March 1947 migrated to any place in the U.P. and has been since residing there.
It was observed that there was nothing to show that the displaced persons for whose benefit the land in question was being acquired had settled in Uttar Pradesh.
Regarding the third ground, the learned Judge expressed the view that the notification under section 7(1) of the Act required that the State Government should indicate in the notification that it had decided to acquire the land.
As the word "decided" was not mentioned in the notification, the notification was held to be not in accordance with law.
On appeal, the Division Bench of the High Court disagreed with the learned single Judge on both the grounds on which he had quashed the notification.
It was held that the notification was substantially in accordance with section 7(1) of the Act.
It was further observed that the society for whose benefit the land was being acquired consisted of refugees.
Dealing with the first ground, namely, that the notification was vague as it did not properly specify the land sought to be acquired, the Division Bench held that all the necessary particulars in respect of the land sought to be acquired had been given.
In the result, the appeal was allowed and the writ petition was dismissed.
In appeal before us, Mr. Desai has assailed the decision of the Division Bench on all the three grounds and has urged that the impugned notification is liable to be quashed on each of those grounds.
We shall accordingly deal with those grounds.
So far as the ground is concerned that the persons for whose rehabilitation the land is sought to be acquired are not refugees, Mr. Desai could not in spite of our query refer us to any paragraph in the writ petition wherein the above ground had been taken.
All the same, he submitted that as the question had been allowed to be agitated before the High Court, we should not debar the appellants from advancing arguments on that score.
The submission made by the learned counsel in this behalf is that there is nothing to show that the persons for whose benefit the land is being acquired arc settled in Uttar Pradesh.
In this respect we are of the view that the question as to whether those per sons are settled in Uttar Pradesh or not is essentially one of fact.
In the absence of any averment in the writ peti tion that the person concerned were not settled in Uttar Pradesh, it is obvious that the material facts having bear ing on this point could not be brought on record.
A party seeking to challenge the validity of a notification on a ground involving questions of fact should make necessary averments of fact before it can assail the notification on that ground.
As such we find it difficult to sustain the contention of Mr. Desai that the persons for whose benefit the land is being acquired were not settled in Uttar Pra desh.
Apart from that, we find that 230 ground No. 13 taken in the writ petition proceeds upon the assumption that the persons for whose benefit the land was being acquired were in fact refugees.
It further appears from the judgment of the Division Bench that there was hardly any dispute before the Division Bench on the point that the respondent society, namely, Sufferers ' Co opera tive Housing Society, consists of refugees and has refugees as its members.
Coming to the second ground taken by the appellants that the notification was not in conformity with section 7(1) of the Act inasmuch.
as it did not state that the State Gov ernment had decided to acquire the land in dispute, we are of the opinion that a reading of the notification which has been reproduced above leaves no manner of doubt that the State Government had decided to acquire the land.
It is stated in the notification that the Governor of Uttar Pra desh is pleased to declare that he is satisfied that the land mentioned in the schedule is needed and is suitable for the erection of houses, shops and workshops for the rehabil itation of displaced persons and/or for the provision of amenities directly connected therewith.
The notification further proceeds to state that the land in question shall be deemed to have been acquired permanently and shall vest absolutely in the State Government free from all encum brances from the date of the notification.
The recital in the earlier part of the notification as well as the opera tive part of the notification that the land shall be deemed to have been acquired permanently and shall vest in the State Government lend clear support for the conclusion that the State Government decided to acquire the land and the order of acquisition was merely an implementation of that decision.
The fact that the word "decided" has not been used in the notification would not prove fatal when the entire tenor of the notification reveals the decision of the State Government to acquire the land and is consistent only with the hypothesis of such a decision having been arrived at.
The courts should be averse to strike down a notification for acquisition of land on fanciful grounds based on hypertechnicality.
What is needed is substantial compliance with law.
The impugned notification, in our opinion, clearly satisfies that requirement.
Lastly, we may deal with the contention advanced on behalf of the appellants that the notification in question is vague.
It is pointed out by Mr. Desai that the total area of the land comprised in field numbers mentioned in the notification is 1.26 acres, while the actual area which is sought to be acquired is one acre.
The learned counsel accordingly urges that it is not possible to find out the particular portions of those fields which are sought to be acquired.
As such, the notification is stated to be vague and thus not in conformity with law.
Our attention has also been invited by Mr. Desaid to the report dated June 23, 1971 of the Tehsildar, who was deputed to deliver possession of the acquired land to the society.
In the said report the Tehsildar stated that he found it difficult to find out as to which part of the fields mentioned in the notification were acquired.
In this respect we find that the report of the Tehsilder itself indicates that when he went to the spot to deliver possession of the acquired 231 land, he did not take with, him the correct plan of the said land.
The impugned notification makes an express reference to the site plan.
An affidavit has been filed on behalf of the society and that affidavit makes it plain that the area of the land which has been acquired comes to exactly one acre.
There appears to be no cogent ground to interfere with the finding of the Division Bench of the High Court that the impugned notification has not been shown to be vague.
We, therefore, find no infirmity in the impugned notification.
The appeal fails and is dismissed but in the circumstances with no order as to costs.
Before we conclude, we would like to observe that the case before us tells a sad tale of delays in a matter which on sheer humanitarian grounds needed to be attended to with expedition.
The case, as would appear from the above, pertains to the acquisition of land with a view to rehabili tate refugees who were uprooted from their hearths and homes in areas now in Pakistan because of disturbances and fear of disturbances which marred the partition of the country.
The refugees for this purpose formed a society, and applied to the administration in 1955 for acquisition of land so that they could erect shops and workshops on that land with a view to earn their livelihood.
It took the administra tion 11 years thereafter to issue necessary notification for the acquisition of the land in dispute.
Four years were thereafter spent because possession of the land could not be delivered.
The only attempt made to deliver possession proved infructuous as the Tehsildar entrusted with this task took a wrong plan.
From 1970 till today the delivery of possession remained stayed because of the writ proceedings initiated by the appellants.
One can only hope that now that the final curtain has been dropped, the matter would be attended to with the necessary promptitude.
P.H.P. Appeal dismissed.
| IN-Abs | U.P. Government issued a notification under Section 7(1) of the U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948 for acquiring the land belonging to the appellant for the purpose of Sufferers Cooperative Housing Society.
The Society entered into an agreement with the Government under section 6 of the Act.
The Land Acquisition Officer determined the amount of compensation for the acquired land.
The appellants challenged the validity of the said notifica tion on the following grounds: 1.
The notification did not properly speci fy the land sought to be acquired.
The notification was ultra vires the Act because it sought to acquire land for the rehabilitation of displaced persons and not for the rehabilitation of refugees.
The notification was not in accordance with the provisions of section 7(1) of the Act.
The single Judge of the High Court did not go into the first ground but accepted the second and third grounds and quashed the notification.
He held that according to the definition of refugees in section 2(7) a refugee is a person who has migrated from Pakistan to any place in the U.P. and has been since then residing in U.P. and that there was nothing to show that the displaced persons who are the members of the Society had settled in U.P. While accepting the third ground the learned Judge held that section 7(1) requires to indicate in the notification that it had decid ed to acquire the land.
However, the notification did not mention the expression "decided".
On an appeal, the Division Bench disagreed with the conclusions of the Single Judge and allowed the appeal.
The Division Bench held that the notification was substantially in accordance with the sect.ion 7( 1 ) and that the members of the Society consisted of refugees.
The Division Bench also held that the notification was not vague and it proper ly specified the land sought to be acquired.
In an appeal by Special Leave the appellants repeated the 3 grounds.
Dismissing the appeal HELD: 1.
The ground about the members of the Society not being refugees has not been taken in the Writ Petition at all.
The question whether those members have settled in U.P. is essentially one of fact.
In the absence of any averment in the writ petition the material facts having bearing on the point could not be brought on record.
A party seeking to challenge the validity of a notifi cation on a ground involving questions of fact should make necessary averments of fact before it can assail the notification on that ground.
[229 F H] 227 2.
The recital in the earlier part of the notification as well as the operative part of the notification that the land shall be deemed to have been acquired permanently and shall vest in the State Government lends clear support to the conclusion that the State Government decided to acquire the land and the order of acquisition was merely an implementa tion of that decision.
The fact that the word decided has not been used in the notification would not prove fatal when the entire tenor of the notification reveals the decision of the State Govt.
to acquire land.
The court would not strike down a notification for acquisition on hypertechnicality; what is needed is sub stantial compliance with law and the impugned notification clearly satisfies that require ment.
[230 D F] 3.
The contention that the notification in question is vague is not substantiated.
The notification makes an express reference to the site plan.
[230 G 231 A]
|
il Appeal No. 71 of 1972.
(From the Judgment and Order dated the 18th December, 1964 the Calcutta High Court in Matter No. 199/61).
T.A. Ramachandran and D.N. Gupta, for the appellant.
B.B. Ahuja and R.N. Sachthey, for respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the judgment of the Calcutta High Court whereby the High Court answered the following question referred to it under section 27 of the Wealth Tax Act in favour of the revenue and against the assessee appellant: "Whether on the facts and in the circum stances of the case, the provision of Rs.49,19,520/ made by the assessee for its tax liability less the amount of the last instalment of advance tax constituted a debt owed by the assessee within the meaning of clause (m) of section 2 of the Wealth Tax Act on the relevant valuation date ?" The matter relates to the assessment year 1958 59, the relevant valuation date for which was December 31, 1957.
A sum of Rs.49,19,520/ was provided for in the books of the appellant for the dis 3 1546 SCI/76 296 charge of its tax liabilities.
The appellant claimed the amount as a deduction in the computation of the net wealth.
The claim was disallowed by the wealth tax officer, the Appellate Assistant Commissioner of Wealth Tax and the Tribunal.
On an application filed by the appellant, the Tribunal referred the question reproduced above to the High Court.
The High Court, while answering the question in favour of the revenue and against the assessee appellant, relied upon its earlier decision in the case of Assam Oil Co. Ltd. vs Commissioner of Wealth Tax, Central Calcutta(1).
The decision in the case of Assam Oil Co, Ltd. relied upon by the High Court was reversed on appeal by this Court.
Naturally therefore at the hearing of the appeal, Mr. Rama chandran, learned counsel for the appellant, has drawn our attention to that decision of this Court in the case of Assam Oil Co. vs Commissioner of Wealth Tax, Central Calcut ta(2).
It was held in that case by majority that the amount set apart by the appellant company in its balance sheet as on December 31, 1956 as an estimated provision for meeting its tax liability, less the last instalment of the demand of the advance tax, was a debt owed by the appellant company on December 31, 1956, the relevant valuation date, within the meaning of section 2(m) of the Wealth Tax Act, 1957, and was deductible in computing its net wealth as on that date.
Following that decision, we are of the view that the answer to the question referred by the Tribunal to the High Court should be in the affirmative in favour of the assessee appellant and against the revenue.
Mr. Ahuja submits that the view taken by the majority in the case of Assam Oil Co. Ltd. needs reconsideration.
This Bench, however, is bound by that decision.
Following that decision, we accept the appeal, set aside the judgment of the High Court and answer the question referred by the Tribunal in the affirmative in favour of the assessee appellant and against the revenue.
The parties in the circumstances shall bear their own costs of this Court as well as of the High Court.
P.H.P. Appeal allowed.
| IN-Abs | The appellant made a provision for a sum of Rs.49,19,520/ in his books of account for the discharge of its tax liabil ities.
The appellant claimed deduction of the said amount for computation of his net wealth on the ground that it was a debt owed by the assessee within the meaning of section 2(m) of the Wealth Tax Act.
The claim was disallowed by the Wealth Tax Officer, the Appellate Asstt.
Commissioner of Wealth Tax and the Tribunal.
The High Court of Calcutta answered the reference in favour of the revenue and against the assessee relying on its earlier decision in the ease of Assam Oil Co. Ltd. Allowing the appeal by certificate, HELD: This Court has reversed the decision of Calcutta High Court in the case of Assam Oil Co. Ltd. In that case this Court held by majority that the amount set apart by an assessee in his balance sheet on the valuation date as an estimated provision for meeting its tax liability less the last instalment of the payment of the advance tax was a debt owed by the assessee within the meaning of section 2(m) of the Wealth Tax Act, 1957 and was deductible in computing its net wealth as on that date.
The Court followed the said deci sion.
[296C G] Assam Oil Co. vs Commissioner of Wealth Tax, Central Calcut ta, followed.
|
Appeal No. 473 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 26 2 1976 of the Allahabad High Court in Second Appeal No. 2068/75).
D.P. Singh, R.P. Singh, L.R. Singh, Rajev Dutta and P.K. Jain, for the appellants and R. 2. 214 D. Mukherjee and Amlan Ghosh, for respondent No. 1.
The Judgment of the Court was delivered by BEG, J.
The respondent was initially appointed as an Ac countant 10th July, 1969, in the Varanasaya Sanskrit Vishwavidyalaya Varanasi (hereinafter referred to as the University ').
On 4th December, 1969, he was transferred to another post, that of a "Senior Assistant".
In January, 1970, Dr. Shambhu Nath Singh, who was the permanent Lecturer in Hindi in the University proceeded on long leave, and the plaintiff respondent, being already in the service of the University, was asked to teach classes for the time being Applications 'were invited for filling up the, post of Dr. Singh.
The advertisement said that the appointment was to be temporary but likely to be made permanent later.
The plain tiff respondent, who was already officiating, also applied.
He was temporarily appointed on 25th February, 1970.
On 23rd April, 1970, the Registrar of the University gave the plaintiff[respondent a notice that his temporary appointment would terminate on 30th April, 1970.
The plaintiff respond ent promptly brought his first suit in the Court of Munsif City, Varanasi, to restrain the University from appointing any one else in his place; but, this suit was ultimately dismissed.
On 15th July, 1970, Dr. Singh had resigned from his post so that the permanent vacancy was there to be filled up.
At that time, the plaintiff 's suit, mentioned above, was still pending.
A Selection Committee of the University interviewed candidates, including the plaintiff respondent on 2nd November, 1970, and submitted a list of names for appointment to the post.
In this list, the plain tiff respondents name was placed first.
As the Executive Committee of the University was not in session, it appears that the Vice Chancellor appointed the plaintiff on 1st February, 1971, on the basis of the recommendations of the Selection Committee.
The Vice Chancellor purported to act under Section 13, sub.
section (7) of the Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956 (hereinafter referred to as 'the Act ').
The Executive Committee of ' the University then passed a resolution on 17th or 18th March, 1971, approv ing what it assumed to be the recommendation of the Selec tion Committee to appoint the plaintiff respondent tempo rarily.
It also decided to advertise for the post again.
On 10th April, 1971, the plaintiff respondent was informed by the Registrar of the University, communicating the decision of the Executive Committee, that his appointment was to continue only, upto the end of the current academic session.
On 15th May, 1971, the plaintiff respondent filed his second suit, now before us, for a permanent injunction to restrain the appellant University from terminating his services.
This suit was dismissed by an Additional Civil Judge.
On an appeal it was decreed by the Additional District and Ses sions Judge of Varanasi.
The High Court of Allahabad, in second appeal, affirmed the judgment and order under appeal before it.
The defendant University is now before this Court by grant of special leave to appeal.
The case of the plaintiff respondent was: firstly, that the vacancy in which he was to be appointed being permanent and the procedure of appointment through a Selection Commit tee being meant for permanent appointments, the plaintiff respondent was actually recommended for 215 a permanent appointment, but, there had been an alteration and interpolation in the recommendation of the Selection Committee so as to make it appear that the recommendation was only for a temporary appointment secondly, that the Vice Chancellor, in any case, had the power to make a permanent appointment under Section 13, sub.
section (7) of the Act and he had done so, thirdly, that the plaintiff respondent 's ap pointment being complete and permanent, the Executive Com mittee of the University had no power left to nullify it; and lastly, that the authorities of the University, that is to say the Vice Chancellor and the Executive Committee, had (in the words used by the plaintiff respondent): "xx xx in collusion with one another with a view to put an end to the plaintiff 's services as Lecturer in Hindi in utter disre gard of the statutes and rules and the ap pointment letter issued by the then Vice Chancellor have collusively arranged and made manipulation in the report of Selection Com mittee and resolution of the Executive Commit tee for an order dated 10th April, 1971, and, in colourable exercise of power, are threaten ing to treat the plaintiff 's appointment as continuing till the end of Session but the plaintiff is continuing to discharge his function as permanent lecturer in Hindi and on account of interim injunction granted in suit No. 289 of 1971 for permanent injunction restraining the defendants terminating the services of the plaintiff the defendants have not been able to do any act adverse to the interest of the plaintiff".
The Trial Court had held that, even if there had been an interpolation of the word temporary in the recommendation of the Selection Committee for a proposed appointment, it did not affect the result because the Vice Chancellor had nei ther the power to make a permanent appointment nor had he done so by means of his order dated 1 st February, 1971, which merely said that the plaintiff respondent was appoint ed to lecture without specifying whether the appointment was to be temporary or permanent.
It appears to us that the Appellate District Court had been very much carried away by the fact that there had been, in its opinion, an alteration or interpolation in the recom mendation of the Selection Committee although the Committee had no power whatsoever to determine the nature of the appointment of the plaintiff respondent.
The Appellate Court had, therefore, reached the conclusion, which did not really follow from this finding, that the appointment of the plaintiff respondent was permanent in the eye of law.
It also held that the Executive Committee had no power whatso ever to alter or touch the terms of the appointment made by the Vice Chancellor, which amounted to an appointment on probation for two years.
It reached this surprising conclu sion despite the complete absence in the Vice Chancellor 's order of any mention of a probation.
The Appellate Court had granted an injunction in the following terms: "The defendants respondents are perma nently restrained from advertising the post of Lecturer in Hindi and from caus 216 ing any interference in the plaintiff 's dis charge of his duties as lecturer in Hindi in the Varanasaya Sanskrit Vishwavidyala by terminating his services or from withholding his salary in pursuance of resolution No. 44 dated 17/18 3 1971 passed by the Karya Kariti ni Parishad of the Varanasaya Sanskrit Vish wavidyalaya and order No. 3 dated 10 4 1971 (exhibit 1 ) passed by the defendant respondent No. 3".
The High Court, in agreement with the first Appellate Court, had interpreted Section 13(7) of the Act as confer ring the power of absolute appointment to a permanent vacan cy upon the Vice Chancellor.
It had repelled the contention that Section 23(1)(g) of the Act gives exclusive powers to the Executive Committee to make appointments of teachers because that power is: "Subject to the provisions of this Act and the Statutes".
The power is "23 (1) (g) to appoint the officers, teachers and other servants of the Vishva Vidyalaya, to define their duties and the conditions of their service and to provide for the filling of casual vacancies in their posts," The High Court sustained the injunction, but had modified it considerably by what it called a clarification in the following words: "xxx as it is not a yet certain whether the position of the plaintiff respondent at present is that of probationer or a permanent employee, if for any valid reason the services of the plaintiff are terminated hereafter, the permanent injunctions granted to the plain tiff respondent by the lower appellate court shall become inoperative and unenforceable".
After the High Court had diluted the injunction in a type of case in which the desirability of granting such a relief was very doubtful, it was perhaps not very necessary for this Court to consider the matter under Article 136 of the Constitution.
Nevertheless, as this Court had thought fit to grant special leave in this case and the High Court 's findings are not unequivocal, we propose to decide the question of interpretation of Section 13 (7) of the Act and other questions which appear to us to have a bearing on the question whether it is desirable for Courts to interfere by means of an injunction in the affairs of educational institutions.
The High Court itself has held that the ordinary power of making appointments of teachers of the University and of defining the nature of appointments and specifying condi tions of service in such cases is vested in the Executive Committee.
The emergency powers under Section 13 (7 ) of the Act are obviously intended for certain emergent situa tions necessitating "immediate action".
Before they can be exercised it must appear that there is, in fact, such a situation as to warrant the exercise of extraordinary powers conferred under Section 13 ( 7 ) of the Act.
It is apparent that the Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter".
It seems to us to be rather extraordinary that despite these clear indications of the situation in which 217 and the extent to which the Vice Chancellor may exercise his emergency powers, it should have been held by the first Appellate Court and affirmed by the High Court that the Vice Chancellor had a power to make an absolute or clear appoint ment without any restriction or obligation to place the matter before the Executive Committee for confirmation.
We find that the Appellate Court had gone to the extent of saying that the Executive Committee had "no jurisdiction" or power left to consider the case.
We think that this is an impossible view to take in view of the clear meaning of the words used in Section 13(7) of the Act.
The object of the provision for reporting the matter to the body which deals with it in the ordinary course could only be to leave the final decision to that body when it does meet.
In other words, the powers of the Vice Chancellor was, in our opin ion, confined to making a tentative decision which, whether he meant the appointment to be temporary or permanent, was subject to confirmation by the Executive Committee.
Until then it was not final.
When that body refused to treat the appointment as permanent and to re advertise the post, it clearly indicated its ;intention to specify the nature of the plaintiff respondent 's appointment which it alone could do.
Although we are not satisfied that circumstances existed which justified the use of emergency powers of the Vice Chancellor under Section 13(7) of the Act, yet, we do not think it possible to enter upon this enquiry as no argument seems to us to have been advanced on this aspect in the High Court or in the District Courts.
We, however, think that the first Appellate Court had much too lightly believed that the plaintiff appellant had been a victim of some kind of fraud, when no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI, Rule 4, Civil Procedure Code, which lays down: "In all cases in which the party plead ing relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms, aforesaid, particulars (with dates and items if neces sary) shall be stated in the pleading".
We do not think it is enough to state in general terms that there was "collusion" without more particulars.
This Court said in Bishundeo Narain & Anr.
vs Seogeni Rai & Ors.
C) (at p.556) as under: "General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influ ence and coercion".
We have already set out the general allegations of alleged collusion by which the plaintiff respondent seemed to imply some kind of fraud.
He indicated no reason for this and made no specific allegation against any particular person.
(1) ; , 556 218 Apart from some suspicion surrounding the alleged alter ations in the recommendation of the Selection Committee, which did not have as the Appellate Court rightly held the power to determine the nature of appointment of the plain tiff respondent, nothing more seems to have been proved here at all on the findings of fact recorded.
It is in evidence that the Selection Committee itself was presided over by the Vice Chancellor.
It is true that the alterations have not been initialed.
But, considering the most unsatisfactory and haphazard manner in which the records of this University had been kept (we have examined the original records), we would not be surprised if the actual proceedings were, quite honestly, recorded in this fashion.
If the Vice Chancellor, who presided, had any actual prejudice or animus against petitioner, he would not be a party to placing the plain tiff 's name first let alone the recommendation for a tempo rary appointment of an employee whose worth must be known to him.
There was nothing to prevent a Selection Committee from making a particular recommendation of this kind.
It certainly had no power to make the appointment which vested only with the Executive Committee.
But, its powers of recom mendation were not fettered.
At any rate, no rule was shown to us as to how it should send its report.
Furthermore, if the Vice Chancellor was prejudiced against the plaintiff respondent and had even altered records, he could not have passed an order of appointment without even clearly specify ing that the appointment was temporary.
The original order on the record shows that the petitioner was appointed with out specifying whether he was being appointed permanently or temporarily.
Obviously, if the Vice Chancellor did not have the power to make a permanent appointment, as we think he did not, we do not think that it would have made a differ ence even if he had purported to make a permanent appoint ment which would have been invalid.
However, on the exact terms of the order of the Vice Chancellor, it could not be said that he had passed any order for a permanent appoint ment.
The resolution of the Executive Committee, which was also presided over by the Vice Chancellor, could not be said to be dishonest or collusive.
We think that the first Appellate Court was unduly swayed by what it thought was a dishonest interpolation in the report of the Selection Committee.
The result of the consideration of the applicable provi sions and the pleadings and findings of fact in the case before us is that we think that the plaintiff respondent has failed completely to show that the resolution of 17 18th March, 1972, of the Executive Committee, which had the final power to appoint and to specify conditions of service, under Section 23(1)(g) of the Act, could be said to be either collusive or inoperative.
We would also like to observe that, in a matter touching either the discipline or the administration of the internal affairs of a University, Courts should be most reluctant to interfere.
They should refuse to grant an injuction unless a fairly good prima facie case is made out for interference with the internal affairs of an educational institutions.
We presume that the plaintiff respondent has been work ing as a result of the injunction granted to him.
We, however, see no justification for continuing the injunction.
We, therefore, allow this appeal to the 219 extent that we withdraw the injunction.
This means that the parties are left free to adjust their differences.
If, upon the strength of any facts subsequent to the institution of the suit now before us, the plaintiff has acquired any new rights which have been infringed he is free to seek relief.
We make this observation as it was stated on his behalf that he claims some rights on the strength of subsequent facts too.
As those are not before us, we can say nothing about them.
The result is that we allow this appeal and set aside the decree and order of the High Court and restore those of the Trial Court.
The parties will bear their own costs throughout.
M.R. Appeal allowed.
| IN-Abs | A permanent lecturer 's post fell vacant in the appellant University, and the Executive Committee which ordinarily made the appointment under section 23(1) (g) of the Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956, not being in session, the Vice Chancellor exercised his emergency powers under section 13(7) of the Act to appoint the respondent on the recommendation of a Selection Committee of the University.
Later, the Executive Committee, when apprised of the ap pointment, refused to treat it as permanent and decided to re advertise the post.
The respondent 's suit for permanent injunction against the termination of his services was dismissed by the Trial Court but decreed on appeal.
On second appeal, the High Court upheld the decree.
The respondent contended that his appointment by the Vice Chancellor, made under section 13(7), was permanent and could not be nullified by the Executive Committee as its resolution was collusive and inoperative.
Allowing the appeal, the Court, HELD: (1) The extraordinary power under section 13(7) of the Act are intended for certain emergent situations necessitat ing "immediate action.
" The Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter" The object of such a report is to leave the final decision to that body when it does meet.
The Executive Committee had the final power to appoint and to specify conditions of service under section 23(1)(g) of the Act.
The powers of the Vice Chancellor were confined to making a tentative decision which was subject to confirmation by the Executive Commit tee.
[216 G H, 217 B C] (2) It is not enough to state, in general terms, that there was "collusion" without particulars.
By general allegations of alleged collusion, the plaintiff respondent seemed to imply some kind of fraud, but no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI Rule 4, Civil Procedure Code.
[217 E F] Bishundeo Narain & .Anr.
vs Seogeni Rai & Ors.
; at 556, applied.
|
ON: Criminal Appeal No. 383 of 1976.
(With Criminal Misc.
Petitions Nos. 62 and 380 of 1976.) (Appeal by Special Leave from the Judgment and Order dated 22 8 1975 of the Delhi High Court in Crl.
Writ Peti tion No. 135/75).
241 S.K. Sinha, for the Appellant.
V.P. Raman and Girish Chandra, for the Re spondents.
Tek Chand Chanana (In person) for the appli cant Intervener.
The Judgment of the Court was delivered by BEG J.
A petition under Article 226 of the Constitution was fled in the High Court of Delhi, seeking a writ in the nature of Mandamus "or any other appropriate Writ, direction or order", to restrain the respondents from carrying out the sentence of death passed against Amrit Bhushan Gupta, a person condemned to death for having com mitted culpable homicide amounting to murder.
The petition was flied by Smt.
Shanti Devi, purporting to act on behalf of her son Amrit Bhushan Gupta, who was alleged to be insane.
A Division Bench of the Delhi High Court passed the following order on it: "We have no doubt in our minds that if the petitioner is really insane, as stated in the petition, the appropriate authorities will take necessary action.
This petition, at this stage, we feel, does not justify invocation of the powers of this Court under Article 226 of the Constitution.
Criminal Writ is dismissed.
" Before the grant of special leave to the petitioner on 27th August, 1976 an application for intervention in the matter had been filed by Tek Chand Chanana supported by an affidavit stating the following facts which have not been controverted: "Amrit Bhushan Gupta was sentenced to death for burning alive three innocent sleep ing children aged 14, 8 and 5 years at Srini was Puri on the midnight of 21st June, 1968 by the learned Dist.
& Sessions Judge Delhi under Section 302 and 7 years R.I. section 307 for attempting to murder Tek Chand Chanana (Peti tioner) on 6th June, 1969 with the remarks 'even the extreme penalty of death may appear too mild for the gruesome murder of three children by burning them alive. ' Delhi High Court confirmed the death sentence on 23rd September, 1969.
Amrit Bhushan Gupta 's relatives made the plea of insanity to the High Court but the Hon 'ble High Court refused even to entertain this petition of the ac cused, some dates are given below: Writ petition dismissed on 20th July, 1971 . .
Petition dismissed . . 20th August, 1975.
Supreme Court had dismissed the var ious petitions of Amrit Bhuahan Gupta noted below: 17 1458SCI/76 242 Special leave petition dismissed on 3rd April, 1970.
Petition dismissed on 12th Sept. 1970.
Petition dismissed on 30th April, 1971.
Writ Petition filed on 11 May 1971 was withdrawn on 2nd August, 1976.
Petition dismissed on 8th January, 1976 Rashtrapati had also rejected several mercy petitions of the accused some dates are given below: 1.
10th August, 1970.
6th December, 1970.
8th November, 1971.
February, 1972.
Government of India had fixed various dates for execution, details given below: 1.18th December, 1970.
25th August, 1975 and 19th December, 1975.
Amrit Bhushan Gupta and his relatives have been delay ing the matter on one excuse, or the other.
Their latest plea is nothing new.
It is repetition of their modus operandi.
The petitioner and his wife have been under constant torment since the day their three innocent child ren were gruesomely murdered in 1968 and the punishment awarded to the accused in 1969 is being postponed on the making of the accused.
" This Court when granting special leave in this case was obviously not aware of the facts stated above which were concealed.
Learned Counsel for the appellant, when asked to state the question of law which called for the invocation of the jurisdiction of this Court under Article 136 of the Constitution, could only submit that the provisions of Section 30 of the Prison ers Act, 1900, should be applied to the petitioner.
This section reads as follows: "30.
Lunatic Prisoners how to be dealt with. (1) Where it appears to the State Government that any person detained or imprisoned under any order or sentence of any Court is of unsound mind, the State Government may, by a warrant setting forth the grounds of belief that the person is of unsound mind, order his removal to a lunatic asylum or other place of safe custody within the State there to be kept and treated as the State Government directs during the remainder of the term for which he has been ordered or sentenced to be detained or imprisoned, or, if on the expira tion of that term it is certified by a medical officer that it is necessary for the safety of the prisoner or others that he should be further detained under medical care or treat ment, then until he is discharged according to law.
243 (2) Where it appears to the State Gov ernment that the prisoner has become of sound mind, the State Government shall, by a warrant directed to the person having charge of the prisoner, if still liable to be kept in custody, remand him to the prison from which he was removed, or to another prison within the State, or if the prisoner is no longer liable to be kept in custody, order him to be discharged.
(3) The provisions of Section 9 of the Luna tic Asylums Act, 1858, shall apply to every person confined in a lunatic asylum under sub section (1) after the expiration of the term for which he was ordered or sentenced to be detained or imprisoned; and the time during which a prisoner is confined in a lunatic asylum under that sub section shall be reck oned as part of the term of detention of imprisonment which he may have been ordered or sentenced by the Court to undergo.
(4) In any case in which the State Government is competent under sub section (1) to order the removal of a prisoner to a lunatic asylum or other place of safe custody within the State, the State Government may order his removal to any such asylum or place within any other State or within any part of India to Which this Act does not extend by agree ment with the State Government of such other State; and the provisions of this section respecting the custody, detention, remand and discharge of a prisoner ' removed under sub section (1) shall, so far as they can be made applicable, apply to a prisoner removed under this sub section." Thus, at the very outset, the section invoked relates to the powers of the State Government.
It has nothing to do with powers of Courts.
It only regulates the place and manner of the confinement of a person, who appears to be a lunatic, when his detention or imprisonment ' is either during the trial or during the period when, after the sentence, he is undergoing imprisonment.
In the case of a person condemned to death no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution.
A special provision for a person sentenced to death is to be found in Section 30 of the , which lays down: "30.
Prisoners under sentence of death. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence be searched by, or by order of, the Jailor and all articles shall be taken from him which the Jailor deems it dangerous or inexpediem to leave in his possession.
(2) Every such prisoner shall be con fined in a cell apart from all other pris oners, and shall be placed by day and by night under the charge of a guard.
" 244 The whole objection of the proceedings in the High Court and now before us seems to be to delay execution of the sentence of death: passed upon the appellant.
In view of the number of times the appellant has unsuccessfully ap plied, there can be little doubt that the powers of the High Court and of this Court ought not to have been invoked again.
The repeated applications constitute a gross abuse of the processes of Court of which we would have taken more serious notice if we were not disposed to make some allow ance for the lapses of those who, possibly out of misguided zeal or for some other reason, may be labouring under the belief that they were helping an unfortunate individual desperately struggling for his life which deserves to be preserved.
A bench of this Court 100 was persuaded to pass orders for observation of the convict and obtaining certificates of experts on the mental condition of the convict.
Dr. P.B. Buckshey, Medical Superintendent and Senior Psychiatrist, Hospital for Mental Diseases, Shahdata Delhi, certified as follows: "After careful consideration of the entire mental state of the accused, including his behaviour, I am of opinion that Shri Amrit Bhushan Gupta is a person of unsound mind suffering from Schizophrenia.
Schizophrenia is a basically incurable type of insanity characterised by remissions and relapses at varying intervals.
Shri Gupta was also severely and over whelmingly depressed and appeared to have lost interest in life." Dr. S.C. Malik, Assistant Professor of Psychiatry, G. B. Pant Hospital, New Delhi, gave a more detailed certificate as follows: "Amrit Bhushan Gupta remained mute throughout the ten days period of observation.
He however started communicating to me through writing on 3rd day of encounter.
He exhibits gross disturbance in thinking and his emotion al life appears to be disorganised.
He is suffering from delusion that he is the incarnation of Christ and that I come to his kingdom or 'Palace '.
He does not mutter to himself but at times keeps on staring vacantly in space.
He is unable to write coherent meaningful sentences.
He coins new words and when asked to explain he says it is 'Technologem of myself as CHRIST '.
He also had hallucinations e.g. that Russian planes are shooting his Bunkers and that I should be helping him to drive them away.
He exhibited depressive and suicidal I tendencies towards later period of my observation period and broke off all communication as I did not give him potassium Cyanide 'Poison ' so that he (Christ) may go back to his Kingdom.
In my opinion he is suffering from 'SCHIZO PHRENIA ' (Chronic) which is a serious mental derangement.
He is thus considered to be of unsound mind under the Indian Lunacy Act.
" 245 We have not even got any appeal from a conviction and sentence before us.
We assume that, at the time of the trial of the appellant, he was given proper legal aid and assistance and that he did not suffer from legal insanity either during his trial or at the time of the commission of the offence.
Insanity, to be recognised as an exception to criminal liability, must be such as to disable an accused person from knowing the character of the act he was commit ting when he commits a criminal act.
Section 84 of the Indian Penal Code contains a principle which was laid down in England in the form of Macnaughten Rules.
The section provides: "84.
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
" If at the time of the commission of the offence, the appellant knew the nature of the act he was committing, as we assume he did, he could not be absolved of responsibility for the grave offence of murder.
A Constitution Bench of this Court has upheld the Constitutional validity of the death penalty in Jagmohan Singh vs The State of U.P. (1).
We have to assume that the appellant was rightly convicted because he knew the nature Of his acts when he committed the offences with which he was charged.
The legality or cor rectness of the sentence of death passed upon him cannot be questioned before us now.
So far as the prerogative power of granting a pardon or of remitting the sentence is con cerned, it lies elsewhere.
We cannot even examine the facts of the case in the proceedings now before us and make any recommendation or reduce the sentence to one of life impris onment.
The contention which has been pressed before us, with some vehemence, by learned Counsel for the appellant, is that a convicted person who becomes insane after his convic tion and sentence cannot be executed at all at least until he regains sanity.
In support of this contention learned Counsel has quoted the following passage from Hale 's Pleas of the Crown Vol.
I p. 33: "If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment; and this holds as well in cases of treason, as felony, even the delinquent in his sound mind were examined, and confessed the offence before his arraignment; and this appears by the Statute of 33 H. 8 Cap. 20 which enacted a trial in case of treason after examination in the absence of the party; but this statute stands repealed by the statute of 1 and 2 Phil & Mr. cap.
10 cv.
P.C.p. 6 And, if such person after his plea, and before his trial, become of non sane memory, he [1) ; , 0+ * 246 shall not be tried, or, if after his trial he becomes of non sane memory he shah not receive judgment; or, if after judgment he becomes of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execu tion".
He also cited a passage from Coke 's Insti tutes, Vol.
III, p. 6, which runs as follows: "It was further provided by the said act of 33 H.S. that if a man attained of treason became mad, that notwithstanding he should be executed; which cruel and inhuman law lived not long, but was repelled, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos, metus and omnes perveniat, as before is said; but so it is not when a mad man is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be no example to others".
The following passage from Blackstone 's Com mentaries on the Laws England VoL IV, page 18 and 19 was also placed before us : "The second case of a deficiency in will, which excuses: from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic.
For the rule of law as to the latter, which may easily be adapted also to the former, is that 'furiosus furore solum punitur '.
In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for ,treason itself.
Also, if a man in his sound 'mind ' commits an offence, and before arraignment for it he becomes mad, he ought not to be 'called on to plead to it, because he is unable to do so ' with that advice and caution that he ought.
And, if after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence ? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment, he becomes of non sane memory, execution shall be stayed; for parad venture, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judg ment or execution.
Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos roentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if h6 were of perfect memory.
But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M.c. 10.
For, as is observed by Sir Edward Coke 'the execution of an offender is, for example, ut poena ad paucos, metus ad omnes perveniat; but so it is not a miserable spectable, both against law, and of extreme inhumanity and cruelty. and can be of no example to others".
247 A passage from a modern work, 'An Introduction to Criminal Law", by Rupert Cross, (1959), p. 67, was also read.
It reads as follows: "In conclusion it may be observed that there are two other periods in the history of a person charged with a crime at which his sanity may be relevant.
First, although there may be no doubt 'that he was sane when he did the act charged, he may be too insane to stand a trial in which case he will be detained during the Queen 's pleasure under the Crimi nal Lunatics Act, 1800 and 1883, pending his recovery.
Secondly, if he becomes insane after sentence of death he cannot be hanged until he has recovered.
In each of these cases.
the question of sanity is entirely a medical question of fact and is in no way dependent on the principles laid down in M 'Naghten 's case.
The rule that insanity at the time of the criminal act should be a defence is attributable to the fact that the idea of punishing a man for that which was due to his misfortune is revolting to the moral sense of most of the community.
The rule that the accused must be fit to plead is based on the undesirability of trying someone who is unable to conduct his defence, or give instructions on the subject.
The basis of the rule that an insane person should not be executed is less clear.
Occasionally, the rule is said to be founded on theological grounds.
A man should not be deprived of the possibility of a sane approach to his last hours.
Sometimes, the rule is said to be based on the fact that condemned men must not be denied the opportu nity of showing cause by why they should not be reprieved".
Shri S.K. Sinha, learned Counsel for the appellant, has, industriously, collected a number of statements of the position in English law from the abovementioned and other works of several authorities such as Theobald on Lunacy (p. 254), and Kenny 's Criminal Law (p. 74).
On the other hand, learned Additional Solicitor General has relied on the following statement of a modern point of view contained in a book by Mr. Nigel Walker on "Crime and Insanity in England" (Vol.
I: The Historical Perspective) at p. 213 214: "Home Secretaries have been even more cautious in offering justifications for the practice of reprieving the certifiably insane or the mentally abnormal.
Shortt, though he cited Coke, Hale, Hawkins, Blackstone, Hawles, and Stephen to prove that he was bound by the common law, refrained from dwelling on their explanations of it.
which are, as we have seen, far from impressive.
The Atkin Committee, being lawyers, were more respectful to the institutional writers, and argued that 'many (sic) of the reasons given for the merciful view of the common law continue to have force even under modern conditions.
Everyone would revolt from dragging a gibber ing maniac to the gallows '.
If 248 they had reflected they would Surely have conceded that 'modern conditions ' greatly weakened two out of the three traditional reasons.
The abolition of public executions made Coke 's argument irrelevant as well as illogical; and Hale 's argument that if sane the condemned man might be able to produce a sound reason why he should not be hanged was greatly weakened now that the condemned man 's interests were so well looked after by his lawyerS.
As for Hawles ' argument that an insane man was spiritually unready for the next world (which not even Hawles regarded as the main objection) were the Committee such devout Christians that they set store by it ? Equally odd was their remark that 'everyone would revolt from dragging a gibbering maniac to the gallows ', which sounded as if it was meant as an endorsement of one or more of the traditional justifications, but if so could hardly have been more unfortunately phrased.
Why should it be more revolting to hang a 'maniac ' than a woman, a seventeen year old boy or a decrepit old man ? Must the maniac be 'gibbering ' before it becomes revolting ? A more logical justification was sug gested by Lord Hewart, who opposed Lord Darling 's attempt to legislate on the lines recommended by the Atkin Committee (see Chap ter 6).
Lord Hewart suggested that the medi cal inquiry should be concerned only with a single, simple question: 'If this condemned person is now hanged, is there any reason to suppose from the state of his mind that he will not understand why he is being hanged ? ' Although this Suggestion would have appealed to Covarrubias, it had little attraction either for the Home Office or for humanitar ians in general, for it was clearly intended to.
reduce the number of cases in which the inquiry led to a reprieve.
Nevertheless, given certain assumptions about the purpose of the death penalty, it was at least more logical than the traditional justifications which the Atkin Committee had so piously.
repeated.
If, as Covarrubias and Hewart no doubt believed, the primary aim of a penalty was retributive punishment, it could well be argued that the penalty would achieve its aim only if the offender understood why it was being imposed.
This argument is not open, however, to someone who believes that the primary aim of a penalty such as hanging is the protection of society by deterrence or elimination.
The Atkin Committee would have been more realistic if they had contented themselves with the obser vation that for at least four hundred years it had been accepted that common law forbade the execution of a mad man, although the institutional writers ' explanations were obviously speculative and odd: and that since 1884 certifiable insanity had been accepted as the modern equivalent of 'madness '.
Any fur ther attempt to justify the practice would have involved them in one sort of difficulty or another.
as Lord Goddard was to argue to the Gowers Commission".
249 Interesting as the statements on and origins of the Common Law rules on the subject in England, against the execution of an insane person, may be, we, in this country, are gov erned entirely by our statute law on such a matter.
The Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the Common Law of England against the execution of an insane person sen tenced to death or some theological, religious, or moral objection to it.
Our statute law on the subject is based entirely on secular considerations which place the protec tion and welfare of society in the forefront.
What the statute law does not prohibit or enjoin 'cannot be enforced, by means of a writ of Mandamus under Article 226 of the Constitution, so as to set at naught a duly passed sentence of a Court of justice.
The question whether, on that facts and circumstances of a particular ease, a convict, alleged to have became insane, appears to be so dangerous that he ,must not be let loose upon society, lest he commits similar crimes against other innocent persons when released, or, because of his anteced ents and character, or, for some other reason, he deserves a different treatment, are matters for other authorities to ,consider after a Court has duly passed its sentence.
As we have already indicated, even the circumstances in which the appellant committed the murders of which he was convicted are not before us.
As the High Court rightly observed, the authorities concerned are expected to look into matters which lie within their powers.
And, as the President of India has already rejected the appellant 's mercy petitions, we presume that all relevant facts have received due consid eration in appropriate quarters.
We think that the application to the High Court and the special leave petition to this.
Court, in the circumstances mentioned above, were misconceived.
Accordingly, we dismiss this appeal.
We also dismiss Criminal Miscellaneous Petition No. 62 of 1976, an application for summoning of the original re cord, as it could be of no use, but we allow Criminal Mis cellaneous Petition No. 380 of 1976, the application for intervention, whose contents we have quoted above.
Stay of execution order is vacated.
P.B.R. Appeal dis missed.
| IN-Abs | A petition under article 226 of the Constitution was filed in the High Court on behalf of the.
appellant, who was sen tenced to death, praying that, since the appellant was insane the State should be restrained from carrying out the sentence.
The High Court dismissed the petition holding that if the appellant were really insane, the appropriate authorities would take necessary action.
In appeal to this Court, it was contended that convicted person who became insane after conviction and sentence could not be executed until he regained sanity.
Dismissing the appeal, HELD: (1) (a) Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the common law of England against the execution of an insane person sentenced to death or for some theological religions or moral objection to it.
Our statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the fore front.
[249 B] (b) What the statute law does not prohibit or enjoin cannot be enforced, by means of a writ of mandamus under article 226 of the Constitution, so as to set at naught a duly passed sentence of a court of justice.
[249 C] (2) (a) Section 30 of the Prisoners Act, 1900 has nothing to do with the powers of courts.
It only regulates the place and manner of confinement of a person, who appears to be a lunatic, when his detention or imprisonment is either during the trial or during the period when, after the sentence, he is undergoing imprisonment.
In the case of a person condemned to death, no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution.
[243 F] (b) Insanity, to be recognised as an exception to crimi nal liability must be such as to disable an accused person from knowing the character of the act he was committing when he commits a criminal act.
If, at the time of the commis sion of the offence, the appellant knew the nature of the act he was committing, he could not be absolved of responsi bility for the grave offence of murder.
[245 B D] Jagmohan Singh vs The State of U.P. ; referred to.
In the instant case, the whole object.
of the proceed ings in the High Court and before this Court seems to be to delay execution of the sentence.
In view of the number of times the appellant had unsuccessfully applied the powers of the High Court and of this Court ought not to have been invoked again.
[244 A]
|
Appeal No. 2471 of 1972.
Appeal by Special Leave from the Judgment and Order dated the 28th March 1972 of the Delhi High Court in Civil Writ No. 179/72.
M.K. Ramamurthi, K.B. Rohatagi, V.K. Jain and M.M. Kashyap, for the Appellant.
S.N. Andley, B.P. Maheshwari and Suresh Sethi, for the Respondents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is di rected against the judgment and order dated March 28, 1972 of the High Court of Delhi dismissing in limine the writ petition filed by the appellant herein.
The facts essential for the purpose of this appeal are: The appellant was appointed as an Assistant Teacher on temporary basis in the pay scale of Rs. 68 170, which was subsequently revised to Rs. 118 225, in the Primary School, Northern Railway Colony II run by the Education Department of the Municipal Corporation of Delhi, with effect from October 1, 1958.
He was confirmed on the said post on September 30, 1959.
On August 28, 1964, he was transferred to the Senior Basic Middle School of the Corporation in Panna Mamirpur, Narela 11.
In September, 1967, he was assigned the work of teaching certain subjects to both the sections of Class V. In section A of Class V, there 200 was at that time a student named Surinder Kumar, son of Dhan Raj.
On September 6, 1967, Dhan Raj made a written complaint to the Education Officer of the Corporation, a copy of which he endorsed to the Head Master of the School, alleging therein that the appellant bad sensually misbehaved with his son, Surinder Kumar in the School Premises during the recess time on 2nd and 4th September, 1967.
On October 5, 1967, the Education Officer suspended the appellant.
On April 15, 1968, the Assistant Education Officer, Rural North Zone, was directed by his superior to prepare a charge sheet against the appellant whereupon a charge sheet was drawn up and served on the latter on November '16, 1968.
Therefore, the Director of Inquiries, who was deputed to enquire into the matter proceeded to hold the enquiry and on consideration of the evidence adduced before him, he submitted a report on May 20, 1969, holding that the charge levelled against the appellant had been established.
On receipt of the report and perusal thereof, the Deputy Commissioner, Education of the Corporation passed the following order on May 20, 1969: "I have gone through the report of the Inquiry Officer and agree with his findings.
The Inquiry Officer has held the charge of committing an immoral act with a student of Class V, levelled against Shri Tara Chand Khatri, A/T (Respondent) as proved.
Such an act on the part of a teacher is most unbecoming, serious and reprehensible.
I propose to impose the penalty of 'dismissal ' from service which shall be a disqualification for future employment on the respondent." Consequent upon the passing of this order, a notice was issued to the appellant requiring him to show cause why the penalty of dismissal from service be not imposed on him.
On July 11, 1969, the appellant submitted his representation in reply to the show cause notice.
By order dated July 30, 1968, the Deputy Commissioner, rejected the representation of the appellant and imposed the penalty of dismissal from service upon him.
Aggrieved by this order, the appellant preferred an appeal to the Commissioner of the Corporation on August 29, 1969, under regulation 11 of the Delhi Munici pal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as 'the Regulations ') Which was rejected by the Commissioner on September 13, 1969.
On October 11, 1971, the appellant filed Civil Writ Petition No. 1032 of 1969 in the High Court of Delhi challenging the aforesaid order of his dismissal from service. 'The High Court allowed the petition on the ground that the order of the Appellate Authority was made in violation of the re quirements of regulation 15 of the Regulations and directed the Appellate ' Authority to dispose of the appeal afresh on merits keeping in view all the facts and circumstances of the case as also the requirements of Regulation 15 of ' the Regulation.
While disposing of the writ petition, the learned Judge added that if the appellant still felt ag grieved by the decision of the Appellate Authority he would be at liberty in appropriate proceedings not only to chal lenge the order of the Appellate Authority but the order of the disciplinary authority as well.
On remand, the Commis sioner of the Corporation who happened to be an officer different from the.
one who rejected the appellant 's appeal on the former occasion heard the appe 201 llant at considerable length but rejected the appeal by an elaborate order dated January 5, 1972.
The appellant thereupon filed writ petition No. 179 of 1972 in the High Court of Delhi challenging the order dated July 30, 1969 of the Deputy Commissioner, Education, as well as the order of the Appellate Authority dated January 5, 1972.
This petition was, as already stated, summarily dismissed without the issue of a notice to the respondents.
The appellant then made an application to the High Court for leave to appeal to this Court but the same was also rejected.
Appearing in support of the appeal, Mr. Ramamurthi has vehemently contended that the appointing authority of the appellant being the Commissioner under section 92 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act '), his dismissal from service by the Deputy Commissioner (Education) an authority subordinate to the Commissioner is illegal.
The counsel has next urged that regulation 7 of the Regulations and the Schedule referred to therein conferring power on the Deputy Commissioner to dismiss a municipal officer or other employee drawing a monthly salary of less than Rs. 350/ being inconsistent with section 95 of the Act is void and consequently the impugned order of the appellant 's dismissal from service passed in exercise of that power is also illegal and invalid.
The counsel has further contended that the impugned order of the appellant 's dismissal from service being a quasi judicial order is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order.
The counsel has lastly urged that the High Court ought not.
to have dismissed the petition in limine without calling upon the respondents to file the return as it raised not only arguable points of law but also contained allegations of male fides against the respondents.
We shall deal with these points seriatim.
But before embarking on that task, we consider it apposite to, refer to a few provisions of the Act and regulations which have an important bearing on the case.
Under section 92(1)(b) of the Act, as in force at the relevant time the power of appointing municipal officers and other municipal employees whether temporary or permanent, to posts carrying a minimum monthly salary (exclusive of allow ances) of less than three hundred and fifty rupees was vested in the Commissioner.
Subsection (1)of section 95 of the Act provided that every municipal officer or other municipal employee shall be liable . . to be cen sured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be.
pre scribed by regulations.
The first proviso.
to this sub section, however, contained the following rider: "Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed.
" 202 Section 491 of the Act which is in the nature of an enabling provision provided as under: "The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any officer or other municipal employee specified in the order.
" It is admitted by the appellant that in: exercise of the power conferred on him under section 491 of the Act, the Commissioner had vide his order No. (1)58 Law Corp 1 dated April 7, 1958, directed that all the powers conferred on him under the various provisions of.
the Act would be exercised also by the Deputy Commissioner subject to his supervision, control and revision.
Regulation 7 of the Regulations and the Schedule referred to therein read as under: "Regulation 7: The authority specified in column 1 of the Schedule may impose on any of the municipal officers.
or other municipal employees specified there against in column 2 thereof any of the penalties specified there against in column 3 thereof.
Any such officer or employee may appeal against the order imposing upon him any of those penalties to the authority specified in column 4 of the said Schedule." SCHEDULE Description of posts Authority Penalties Appellate competent Authority to impose penalties Posts whose minimum Deputy All Commissioner monthly salary (exclu Commissioner sive of allowances) is less than three hund red and fifty rupees.
Any municipal officer (i) & (ii) Deputy Co or employee mmissioner to whom po wers to im pose penal ties is de legated under section 491.
It would also be advantageous to refer to regulation 8 of the Regulations in so far as it is relevant for the purpose of this appeal.
"Regulation 8: . . . 203 (9) The Disciplinary Authority, shall, if it is not the Inquiring Authority, consider the record ' of inquiry and record its findings on each charge.
(10) If the Disciplinary Authority, having regard to its findings on the charges, is.
of the opinion that any of the penalties specified in regulation 6 should be imposed, it shall : (a) furnish to the municipal officer or other municipal employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and, (b) give him a notice stating the action proposed to.
be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action.
(11) The Disciplinary Authority shall consider the representation, if any, made by the municipal officer or other municipal employee in response to the notice under subregulation (10) and determine what penalty, if any, should be imposed on the municipal officer or other municipal employee and pass appropriate orders on the case.
(12) Orders passed by the Disciplinary Authority shall be communicated to the municipal officer or other municipal employee who shall also be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him.
" Having noticed the relevant provisions, we now pass on to.
consider the contentions raised on behalf of the appel lant.
Adverting to the first two contentions raised before us on behalf of the appellant, it may be stated that neither of them appear from the record to have been raised before the High Court.
It was not the case of the appellant in the petition filed, by him under Article 226 of the Consti tution that since his appointment as an Assistant Teacher was actually made by the Commissioner, the Deputy Commis sioner was.
not competent to dismiss him from service.
What was asserted by him at that stage is contained in ground No. VI of the petition and ' may be reproduced below for facility of reference: "Because in any.
case, respondent No. 3 has no jurisdiction to hear the appeal.
Under section 92 of the Delhi Municipal Corporation Act, 1957, the petitioner could be 204 appointed only by the Commissioner and under section 95 of the said Act, he should be the dismissing authority.
In the present case, however, the Commissioner had by notification under section 491 of the said Act, delegated his power to the Deputy Commissioner under Circular NO.
4(1)/8 Law Corp. 1 dated 7.4.1958.
The dismissing order was made by the Deputy Commissioner as delegatee i.e. as exercising the powers of the Commissioner.
The Commissioner, therefore, could not sit in appeal on such an order.
Only the Standing Committee of the Corporation could have heard the appeal.
" The omission to make the aforesaid averments in the writ petition regarding the incompetence of the Deputy Commis sioner to pass the impugned order of dismissal from service and invalidity.
of regulation 7 of the Regulations appears to be due to the.
fact that the appellant fully realised that none of these pleas could be tenable in view of the aforesaid order No. (1) 58 Law Corp. 1 dated April 7, 1958 made by the Commissioner delegating all his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regulation 7 of the Regulations which far from being repugnant to section,, 95 of the Act is perfectly consistent with it as sub section (1 ) of that section itself makes a municipal employee liable to be compulsorily retired, removed or dismissed etc.
by such authority as may be prescribed by the Regulation.
The prohibition contained in the first proviso to this Sub section is confined in its operation only to a case where an officer or employee of the Corporation is retired, re moved or dismissed by an authority subordinate to that by which he was appointed.
In the instant case, 'the appel lant 's appointment having been made by the Deputy Commis sioner, who possessed plenary powers in., that behalf by virtue of the aforesaid delegation order, there was; neither any legal bar to the appellant 's dismissal from service by that very authority nor a breach of the first proviso to sub section (1 ) of section 95 of the Act.
The decision of this Court in The Management of D.T.U.v.
Shri B.B.L. Halelay & Anr.(1) sought to be relied upon by Mr. Ramamurthi related to an appointment which rested on a deeming provision and is not at all helpful to the appel lant.
Rospondent No. 2 in that case was Originally employed as a driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950.
By section 516(1)(a) of the Delhi Municipal Corporation Act,1957 which came into force in January, 1958, the Delhi Road Transport Authority Act, 1950, was repealed and the functions of the Delhi Road Transport Authority were taken over by the Corporation by virtue of several other provisions of the Act.
Under section 511 of that Act i.e. the Delhi Municipal Corporation Act, 1957, every officer and employee of the Transport Authority including respondent No,. 2 stood transferred and become an officer and employee of the Corporation and under section 92(1) (b) read with section 516(2) (a) of the Act, the said respondent was (1) ; 205 to be deemed to have been appointed by the General Manager (Transport).
The respondent in that case thus being re quired by fiction of law to b,e taken to have been appointed by the General Manager, he could not have been removed from service in May, 1963 by the Assistant General Manager an authority subordinate to the General Manager in view of the first.proviso to sub section (1) of section 95 of the Act despite the fact that the functions of the General Manager had been delegated to the Assistant General Manager in May, 1961.
In that case, it was made clear by this Court that the only consequence of the delegation order was that if after 1961, the Assistant General Manager had made the appointment of respondent No. 2, he would have no doubt been entitled to remove him from service but the position had to be deter mined with reference to the time, when he was absorbed in the Corporation which was in January, 1958.
The judgment of this Court in.
Municipal Corporation of Delhi vs Ram Pratap Singh(1) is also not helpful to the appellant as in that case, the appointment was in fact made by the Commissioner white the dismissal was by the Deputy Commissioner.
In view of the foregoing discussion, the first two contentions raised on behalf of the appellant which are totally misconceived are repelled.
The third contention advanced by Mr. Ramamurthi that the impugned order of the appellant 's dismissal from service is vitiated 'as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order cannot also, be countenanced as.
it overlooks the decisions of this Court, which fully cover the case.
Regarding the first limb of the contention, it may be stated that although it may be necessary for the discipli nary authority to record.
its provisional conclusions in the notice calling upto the delinquent officer to, show cause why the.
proposed punishment be not imposed upon him if it differs from the findings arrived at b,y the enquiring officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer.
We are supported in this view by two decisions of this Court in State of Orissa vs Govinddas Panda(2) and State of Assam & Anr.
vs Bimal Kumar Pandit(3).
In Govinddas Panda 's case (supra) where the notice issued under ' Article 311(2) did not expressly state.
that the State Government had accepted the findings record ed by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on.
him was not specifi cally and clearly indicated, this Court while reversing the conclusions of the Orissa, High Court that the notice was defective and so that provisions of Article 311(2) had been contravened observed: (1) C.A. No. 2249 (N.) of 1969 decided on 8 1 1976.
(2) C.A. No. 412 of 1958 decided on 10 12 1962.
(3) ; 206 "In the context, it must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment.
On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." In Bimal Kumar Pandit 's case (supra) while, reversing the judgment and order of the High Court allowing the writ petition filed by the respondent against his reduction in rank on the ground that the notice served upon him under Article 311 (2) of the Constitution was void as it did not expressly and specifically indicate either the conclusions of the dismissing authority or the findings recorded by the enquiring officer or that the dismissing authority accepted the findings of the enquiring officer and unless that course was adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusion both in regard to the guilt of the public officer and the punishment which his misconduct deserved the Constitution Bench of this Court observed: "It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under Article 311(2).
But the question which calls for our decision is it the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer, does that introduce such an infirmity in the proceedings as to make the final order invalid ? We are not prepared to answer this question in the affirmative.
It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the punishment that should be imposed on him obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority; otherwise there would be no sense or purpose in issuing the notice under Article 311(2).
" At another place, the Court observed: "We ought, however, to all that if, the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice.
It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2).
In 207 such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer.
Without such an express statement in the notice, it would be impossible to issue the notice at all.
There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues.
That is precisely what has happened in the present case.
If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing au thority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice.
In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved.
In order to give the delinquent officer a reasonable opportunity to show cause under article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the. notice.
But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority must say that it has so accepted the report.
As we have already indicated, it is desirable that even in such.
cases a statement to that effect should be made.
But we do not think that the words in article 311 (2) justify the view that the failure to make such a statement amounts to.
contravention of article 311(2) . .
There is no doubt that after the report is received, appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not.
It is only if the findings recorded in the report against the Government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him.
But this does not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer.
" In the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed 208 by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer.
Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved.
The second limb of the third contention raised on behalf of the appellant which also overlooks the decisions of the Constitution Bench this Court does not commend itself to us.
In this connection, we would like to make it clear that while it may be necessary for a disciplinary or admin istrative authority exercising quasi judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons.
It cannot also, in our opinion, be laid down as a general rule that an order is a non speaking order simply because it is brief and not daborate.
Every case, we think, has to be judged in the light of its own facts and circumstances.
Reference in this connection may be made with advantage to a catena of decisions.
In Bimal Kurnar Pandit 's case (supra) it was categorically laid down by the Constitution Bench of this Court that it was not a requirement of Article 311(2) that in every case, the punishing authority should in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion.
In that case, it was clarified that the view is not justified that the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delin quent Government servant.
In State of Madras vs A.R. Srinivasan(1) the Constitution Bench this Court while repelling the contention advanced on behalf of the respondent that the State Government 's order compulsorily retiring him from service was bad as it did not give reasons for accepting the findings.
of the enquiring tribunal and imposing the penalty of compulsory retirement observed as follows: "Mr. Setalvad for the respondent attempted to argue that the impugned order gives no reasons why the appellant accepted the findings of the Tribunal.
Disciplinary proceedings taken against the respondent, says Mr. Setalvad, are in the nature of quasi judicial proceedings and when the appellant passed the impugned order against the respondent, it was acting in a quasi judicial character.
That being so, the appellant should have indicated some reasons as to why it accepted the findings of the Tribunal, and since no reasons are given, the order should be struck down on that ground alone.
We are not prepared to accept the argument.
In dealing with the question as to whether it is obligatory on the (1) A.I.R. 1966 S.C. 1827=(1966) 2 S.C.W.R. 524.
209 State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf.
That enquiry is followed by a report and the Public Service Commission is consulted where necessary.
Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal.
It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate.
But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it.
The proceedings are, no doubt, quasi judicial, but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on ' the State Government to record reasons in every case." In Som Datt Datta vs Union of India & Ors.
(1) while approv ing the English law and practice and overruling 1he conten tion advanced on behalf of the petitioner that the orders of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the Army Act and the order of the Central Government dismissing the appeal of the petitioner under section 165 of the Army Act were illegal and ultra vires as they did not give reasons in support Of the orders, the Constitution Bench of this Court summed up the legal position as follows : Apart from any requirement imposed by the statute or statutory rule either expressly or 'by necessary implication, there is no legal obligation that the statutory tribunal should give reasons for its decision.
There is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.
In Madhya Pradesh Industries Ltd. vs Union of India & Ors.(2) this Court repelled the contention of counsel for the appellant that every order appealable under Article 1,36 of the Constitution must be a speak (1) [1969] S.C.R. 176.
S.C.R. 466 A.I.R. 1458SCI/76 210 ing order and the omission to give reasons for the decision is of itself a sufficient ground for quashing it and held that an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for rejection.
While distinguishing the case of Harinagar Sugar Mills Ltd. vs Shyam Sunder Jhunjhunwala(1) where the Central Government reversed the decision of the State Government without giving reasons for reversal, this Court pointed out that there was a vital difference between the order of reversal by the appellate authority and the order of affirmance by the revising authority and that if the revising authority re jects a revision application stating that there was no valid ground for interference with the order of the subordinate authority in such a case, it could not be held that the order was arbitrary or that there was no trial of the revi sion application.
Subba Rao, J. (as he then was) speaking for himself in that case observed : "Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons." In Judicial Review of Administrative Action (Second Edition), Prof. S.A. de Smith has observed at page 418 as follows : "If the record is incomplete (e.g. because reasons or findings of material fact are omitted), has the court power to order the tribunal to complete its record? It is common ground that the court has no inherent power to compel a tribunal to give reasons for its decisions . .
If, of course, a tribunal is required by statute to declare its reasons or its findings on the material facts, an order of mandamus may be obtained to compel the tribunal to perform its legal duty .
Where a tribunal that is not expressly obliged to give reasons for its decisions chooses not to give any reasons for a particular decision, it is not permissible to infer on that ground alone that its reasons for that decision were bad in law.
Even if it gives reasons, which are ex facie insufficient in law to support its decision, the court will not necessarily assume that these are the sole reasons on which the tribunal has based its decision.
(See Cf.
Davies vs Price at 440 and R.v.
Minister of Housing and Local Government, ex.
P. Chichester R.D.C.
Before concluding the discussion in regard to the third contention, we may point out that none of the decisions viz. Sardar Govindrao & Ors.
vs State of Madhya Pradesh(2) Bhagat Raja vs The Union of India & Ors.
(3) Travancore Rayon Ltd. vs Union of India(4) Mahabir Prasad Santosh Kumar vs State of U.P. & Ors.(5)Rangnath vs Daulat Rao & Ors.
(6) and Siemens Engineering & Manufacturing Company of India Ltd. vs The Union of India(7) on which Mr. Ramamurthi has (1) ; (2) [1965] 1 S.C.R.678.
(3) ; (4) ; (5) ; (6) ; (7) ; 211 heavily leaned has anything to do with disciplinary proceed ings.
At such, they have little bearing on the point with which we are at present concerned.
We would also like to point out that the observations in Travancore Rayon Ltd. vs Union of India (supra) that in Bhagat Raja vs The Union of India & Ors.
(supra).
, this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Ltd. vs Union of India & Ors.
(supra) seem to have crept therein through some oversight.
A careful perusal of the decision in Bhagat Raja vs The Union of India & Ors.
(supra) would show that this Court did not make any observations therein which can be interpreted as overruling the. majority judgment in Madhya Pradesh Industries Ltd. vs Union of1 India & Ors.
(supra).
It is also worthy of note that in Bhagat Raja 's case (Supra), the amendment of rule 55 of the Mineral Concession Rules,1960 introduced in July, 1965 laid down a special procedure in regard to revisions.
It required the Central Government to send copies of the application for revision to all the impleaded parties including the person to whom a lease had been granted calling upon them to make such comments as they might like to make within three months from the date of the issue of the communication and on receipt of the comments from any party to send copies thereof to the other parties calling upon them to make further comments as they might like to make within one month from the date of the issue of the communication.
It also provided that the revision appli cation, the communications containing comments and counter comments referred to above would constitute the record of the case.
Thus under the amended rule, the party whose application was rejected got an ample opportunity of showing to the Central Government by reference not only to the record which was before the State Government but by refer ence to the fresh material as well that the State Government was misled in its consideration of the matter or that its decision was based on irrelevant considerations.
This is evident from the following observations made in Bhagat Raja vs The Union of India & Ors.
(supra): "The old rule 55 was replaced by a new rule which came into force on 19th July, 1965.
Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only, the new rule is aimed at calling upon all the parties including the State Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others.
In effect, the parties are given a right to bring forth material which was not before the State Government.
It is easy to see that an unsuccessful party may challenge the gram of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government.
The order in this case does not even purport to ' show that the comments and counter comments which were before the Central Government in this case, had been considered.
" The above observations leave no manner of doubt that it was in view of the amendment in rule 55 of the Mineral Concession Rules, 212 1960 that the decision in Bhagat Raja vs The Union of India & Ors.
(supra) was different from Madhya Pradesh Industries Ltd. vs Union of India & Ors.
(supra) which had been ren dered on the unamended rule 55 of the said Rules.
In our opinion, therefore, the observations made in Madhya Pradesh Industries Ltd. vs Union of India & Ors.
(supra) contain a correct statement of law.
In view of the foregoing, we do not find any merit in the third contention raised on behalf of the appellant.
This brings us to the last contention raised by Mr. Ramamurthi that the writ petition should not have been dismissed by the High Court in limine in view of the fact that it contained allegations of mala fides against the respondents.
We are unable to accept this contention.
It has been held time and again by this Court that the High Court would be justified in refusing to carry on investiga tion into the allegations of mala fides if necessary partic ulars of the charge making out a prima facie case are not given in the writ petition.
Keeping in view the well estab lished rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus.
The High Court was, therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | The appellant, a school teacher under the Delhi Munici pal Corporation.
was dismissed from service by the Deputy Commissioner (Education) after following the procedure prescribed under the Regulations.
His appeal to the Commis sioner of the Corporation was dismissed and his writ peti tion was dismissed in limine by the High Court.
On further appeal to this Court it was contended that (I ) the order of dismissal was invalid for the reason that the Commissioner being the appointing authority, the Deputy Commissioner was incompetent to dismiss him and the regulation conferring power on the Deputy Commissioner to dismiss a municipal employee drawing less than Rs. 350 being inconsistent with section 95 of the Delhi Municipal Corporation Act 1957 is void; (2) since the disciplinary authority had neither recorded its findings nor given its reasons in the order of dismissal it is vitiated and (3) the petition should not have been dismissed in limine by the High Court.
Dismissing the appeal, HELD: (1 ) The appellant 's appointment having been made by the Deputy Commissioner, who possessed plenary powers in that behalf by virtue of the delegation of power to him, there was neither any legal bar to 'his dismissal by that authority nor a breach of the first proviso to section 95(1).
In his writ petition before the High Court the appellant failed to make any averment regarding the incompetence of the Deputy Commissioner to pass the impugned order and the invalidity of the regulation.
None of his pleas was tenable in view of the order of the Commissioner delegating his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regula tion 7 being consistent with section 95(1) of the Act.
[204 E&C] The Managment of D.T.U. vs Shri B.B.L. Hajeley & Ant. ; and Municipal Corporation of Delhi vs Ram Partap Singh (Civil Appeal No. 2449(N) of 1969 delivered on January 8, 1976), held inapplicable.
(2)(a) Although it may be necessary for the disciplinary authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him if it dif fers from the findings arrived at by the enquiry officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer.
[205 F] In the instant case it is apparent from the order of the Deputy Commissioner that he agreed with the findings of the Enquiring Officer.
[208 A] State of Orissa vs Govinddas Pande (Civil Appeal No. 412 of 1958 decided on December 10, 1962) and State of Assam & Anr.
vs Vimal Kumar Pandit A.I.R followed.
(b) While it may be necessary for a disciplinary or administrative authority exercising quasi judicial functions to state the reasons, in support of its order if it differs from the conclusions arrived at and the recommendations made by 199 the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons.
it cannot be laid down as a general rule that an order is a non speaking order simply because it is brief and not elabo rate.
Every case has to be judged in the light of its own facts.
[208 B] Sardar Govindrao & Ors.
vs State of Madhya Pradesh ; , Bhagat Raja vs The Union of India & Ors. ; , Travancore Rayon Ltd. vs Union of India ; ; Mahabir Prasad Santosh Kumar vs State of U.P. & Ors.
; , Rangnath vs Daula trao & Ors. ; and The Siemens Engineering & Manufacturing Co. of India Ltd. vs TIre Union of India & Anr. ; , inapplicable.
(c) M.P. Industries Ltd. vs Union of India ; contains a correct statement of law.
In Bhagat Raja vs The Union of India, ; this Court did not make any observations which can be interpreted as overruling the majority judgment in the former case.
In view of the amendment of r. 55 of the ' Mineral Concession Rules, 1960 the decision in Bhagat Raja 's case was differ ent from M.P. Industries case which had been rendered on the unamended r. 55 of the Rules.
[212 A; 211 B] (3) The High Court was not wrong in dismissing the writ petition.
in limine because a prima jacie case requiring investigation had not been made out by the appellant.
The High Court would be justified in refusing to carry on inves tigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the petition.
Since the burden of establishing mala fides lies very heavily on the person who alleges them and the allegations made.
in regard thereto, in the writ petition were not sufficient to establish malus animus.
The High Court was justified in dismissing the petition without issuing notice to the other side.
[212 C D]
|
Appeals Nos. 1944 1946/ 67.
(From the Judgments and Decrees dated the 20th July, 1964 of the Punjab High Court in L.P.As.
23 to 25 of 1960).
M.L. Sethi and Harder Singh, for the appellants.
S.K. Mehta and section Ranga Raju, for Respondents No.s.
The Judgment of A.N. Ray, C.J. and Jaswant Singh J. was delivered by Jaswant Singh, J.M.H. Beg, J. gave a dissenting opinion.
JASWANT SINGH, J.
These three Appeals Nos.
1944, 1945 and 1946 of 1967 by certificate which are directed against the common judgment and decree dated July 29, 1964 of a Division Bench of the High Court of Punjab and Haryana at Chandigarh involving a question of limitation shall be disposed of by this judgment.
The facts leading to these appeals are: As appears from the pedigree table referred to in the judg ment under appeal, Chuhar Singh, a descendant of Amrika, son of Har Lal, sold land admeasuring 167 kanals and 10 marlas situate in village Dhugga, Tahsil Hoshiarpur, to Bhagwan Singh, the grandfather of defendants Nos. 1 to 6, for Rs.23/8/ vide a registered sale deed dated June 20, 1885.
After the aforesaid alienation, one Hamira, a collat eral of Chuhar Singh, filed a suit for possession by pre emption of 52 kanals, 13 marlas out of the aforesaid area which was decreed in his favour on April 29, 1889 on payment of 671/ .
The mutation in respect of the remainder of the land admeasuring 114 kanals and 17 marlas was attested in favour of Bhagwan Singh on May 4, 1890.
Hamira did not retain the property which he secured by pre emption and sold it back to Bhagwan Singh on September 20, 1890, with the result that Bhagwan Singh again became the owner of the entire land which was originally sold tO him by Chuhar Singh who died in 1896.
On July 19, 1898, Jiwan, Bela, Jawahar and Jawala, descendants of Bharimian, another son of Har Lal, filed a representative suit for declaration to the effect that the aforesaid sale by Chuhar Singh in favour of Bhagwan Singh would not affect their reversionary rights as the aforesaid land was ancestral and the sale thereof was with out 18 1458sc//76 258 consideration and legal necessity.
A Division Bench of the Punjab Chief Court finally disposed of the said suit by judgment dated July 29, 1902 declaring that upon the death of Alla Singh, adopted son of Chuhar Singh, and extinction of his line, the aforesaid sale of 1885 would not affect the reversionary interests of Bela and Jawahar.
This declaration was made subject to the condition that before these plain tiffs or their successors in interest would take possession of their share of the laud sold, they would pay to Bhagwan Singh or his successors in interest a sum bearing the same proportion of Rs.1611/ i.e. Rs.2378 minus 767/ ) as their share in the land sold bore to the Whole area sold.
On the death of Alia Singh, Kishan Singh, his only sou, succeeded him.
On December 18, 1943, Jawahar Singh and Bela Singh brought a suit for possession of land admeasuring 113 kanals and 18 marlas situate in village Dhugga alleging that Kishan Singh having died on August 15, 1945, and the line of Alia Singh having become extinct, they were entitled to posses sion of the land in accordance with the aforesaid decree of the Punjab Chief Court.
This suit was followed by two more suits of identical nature for the remainder of the land by two other sets of collaterals of Bhagwan Singh, one by Waryam Singh and his three brothers who claimed half of the entire holding and the other by Khazan Singh and Jagat Singh, who claimed one fourth share of the holding.
The Trial Court consolidated all these three suits and proceeded to try them together, Eventually it decreed the first two suits in favour of the plaintiffs pursuant to the aforesaid decree of the Chief Court of Punjab holding that Kishan Singh had died on August 15, 1945.
It, however, dismissed the suit brought by Khazan Singh and Jagat Singh on the ground that they being the successors in interest of Hamira, who had brought the aforesaid pre emption suit, were stopped from claiming possession of the land.
On appeal, the Dis trict Judge, Hoshiarpur, dismissed all the three suits as premature holding that the factum of Kishan Singh 's death not been established.
The decision of the District Judge was affirmed in appeal by a Single Judge of the Punjab High Court by his judgment and decree dated August 3, 1951.
The plaintiff 's in the last mentioned suits, viz. Waryam Singh and his three brothers, Jawahar Singh and Bela Singh, and Khazan Singh and Jagat Singh again instituted three sepa rate suits (out of which the present appeals have arisen) on October 28, 1952, December 16, 1952, and May 12, 1953, respectively for the same relief which was sought by them in the previous suits.
In these suits, the plaintiffs averted as follows with regard to the cause of action : "5.
After Alia, adopted son of Chuhar Singh, deceased, his son Kishan Singh became his heir and representative.
Now the where abouts of Kishan Singh aforesaid, have not been traceable for more than seven years.
Since the 15th Aug., 1945, no information or intimation that he is alive has been received by any of his relative or any other concerned person.
Hence.
he is considered as dead and his suit is being filed.
The line of Alia has become extinct.
Under these circumstances, the plaintiffs being collaterals of Chuhar Singh, deceased vide the pedigree table given 259 above, are entitled to get possession of the laud of half share, the sale of which has been cancelled vide the decree granted by the Chief Court, subject to payment of Rs.805/8/ of their proportionate share.
Hence, we have filed this suit.
The parties are governed by the Zamindara custom in the matters of succession.
Prior to it, the plaintiffs had filed a suit for possession of this property (land) on the 18th December, 1945, in the Civil Court at Hoshiarpur, alleging that Kishan Singh, son of Alia who was the last man of the line of Alia, has died on 15th August, 1945 . . 7.
The suit of the plaintiffs, detailed in para No. 6 above was based upon the factum of the death of Kishan Singh.
The plaintiffs had no personal knowledge about this fact, rather it was based on mere hearsay, but this event of the 15th of August, 1945, came out to be false and such a decision was passed in the previous suit between the parties and the parties are bound by the same.
But the where abouts of Kishan Singh, aforesaid, have not been traceable since the 15th August, 1945, according to the above facts mentioned in para No. 5.
After the 15th of August, 1952, (1945 ?) the event of his death is to be determined according to law (under section 108) and facts (under section 114) Evidence Act.
According ly, Kishan Singh is to be considered as dead after the 15th of August 1952(?) and he is not alive.
Two months prior to the 15th of Au gust, 1945, he had been residing sometime at Mauza Dhugga, District Hoshiarpur and sometime at Mauza Sonion, District Jullundur, perma nently.
Thereafter, he went outside towards Ahmedabad for searching some job and earning his livelihood.
The last information about his presence in Ahmedabad was received on the 5th of August, 1945 and since then his where abouts have not been available. ". 10.
The right to sue has accrued against defendants Nos. 1 to 6 within the jurisdiction of his district after the 16th of August, 1952, in the beginning of the months of October, 1952 viz., after a period of seven years since the whereabouts of Kishan Singh have not been traceable and since he is con sidered to be dead according to law and so the Civil Court of this District is competent to try this suit .
At any rate, Kishan Singh died within a period of three years from the date of filing the suit and so this suit is within time.
At any rate, the entire aforesaid period mentioned in para No. 6 from 18 12 45 to 3 8 51 is liable to be deducted according to law and facts.
" These suits which were resisted by the contesting de fendants on a number of grounds, were eventually dismissed by the Trial Court as time barred with the finding that though Kishan Singh had not been heard for 'seven years before the institution of the suits, the actual date 260 of this death had not been proved.
The trial Court, however, held that the decree of the Punjab Chief Court enured for the benefit of the entire body of reversioners and not exclusively for the benefit of Jawahar Singh and Bela Singh.
On appeal, the District Judge upheld the dismissal of the suits adding that Hamira having successfully brought a suit for pre emption in respect of a portion of the sale precluded not only himself but his successors as well from acquiring the property.
In this view of the matter, he opined that Jagat Singh and Khazan Singh were not entitled to any share at all in the land.
On further appeal, a Single Judge of the Punjab High Court decreed all the three suits by his judgment dated October 28, 1959, holding that Kishan Singh having been treated as alive by.
the High Court when it passed the previous judgment dated August 3, 1951, the conclusion of the courts below that Kishan Singh had been dead seven years before the institution of the present suits could not be sustained.
While computing the period of limitation, the Single Judge also excluded the time spent on the previous litigation from 1945 to 1951 under section 14(1) of the Limitation Act.
It would be advantageous to reproduce the observations made in this behalf by the.
Single Judge: "Till 3rd of August, 1951, when the judgment (of the High Court in the previous suits) was delivered, the position was that the death of Kishan Singh had not been established.
Admittedly, the whereabouts of Kishan Singh are still not known and, in my opinion, there can be no escape from the conelusion on these facts that the death of Kishan Singh must be presumed under section 108 of the Indian Evidence Act as he had not been heard of for a period of seven years,.
The present suits were brought between 28th of October, 1952 and 12th of May, 1953.
The correct ap proach to reach a solution of the present problem is to give allowance to the plain tiffs, if found necessary, for the period which they spent in previous litigation that is to say, from the years 1945 to 1951.
Under sub section (1) of section 14 of the Indian Limitation Act, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be ex cluded, where the proceeding is found upon the same cause of.
action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it . .
Both the previous litigation and the present are found on the same cause of action.
The previous litigation ended with the judgment of the Punjab High Court in which it was held that the suit was premature, the plaintiffs having failed to establish the death of Kishan Singh . .
The plain fact of the matter is that no proof is forthcoming of Kishan Singh continued existence since 1945.
Since the judgment of the High Court in 1951, where it was held that the death of Kishan Singh had not been proved 8 years have elapsed.
There can be no escape from the conclusion 261 now that Kishan Singh 's death must be pre sumed.
The decision of the High Court in 1951 should provide a suitable ground for extension of time under provisions of section 14 of the Indian Limitation Act.
The whole basis of the judgment of the courts below, in my opinion, is erroneous.
It is not a requirement of section 108 of the Indian Evidence Act that the date of death of the person whose death is to be presumed must be established.
All that is said is that if a person is not heard of for a period of seven years, his death maybe presumed." The contesting defendants then took the matter in Let ters Patent Appeal to a Division Bench of the High Court which by its Judgment dated July 29, 1964 set aside the afore Said judgment and decree of the Single Judge holding that the Single Judge was in error in excluding.the time spent on the previous litigation by the plaintiffs by apply ing section 14(1) of the Limitation Act.
Relying on the decision of the Full Bench of the Lahore High Court in Bhai Jai Kishan Singh vs People Bank of Northern India, I.L.R. , the Division Bench held that the words. "or other cause of a like nature" occurring in section 14(1) of the Limitation Act had to be read ejusdem generis with the preceding words "relating to defect of jurisdiction" and that it was not possible to give the benefit of that provi sion to the plaintiffs as it could not be regarded that the court was unable to entertain the previous suits because of any defect of jurisdiction or other cause of a like nature merely because of the fact that the court came to the con clusion that the cause of action had not yet arisen.
Ag grieved by this judgement, the plaintiffs have come up in appeal to this Court as already stated.
Before adverting to the contentions raised before us on behalf of the appellants, we must first dispose of the preliminary objection raised by Mr. Mehta, counsel for the contesting respondents, regarding the maintainability of the appeals.
According to Mr. Mehta, the said appeals have been rendered untenable and have to be dismissed in view of the amendment introduced in section 7 of the Punjab Custom (Power to Contest) Act, 1920 (Act 2 of 1920) by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) which has been given a retrospective operation by sub section (2) of section 1 of the Amending Act.
This contention is, in our opinion, wholly misconceived and cannot be allowed to prevail as it overlooks the savings clause contained in section 4 of the Punjab Custom (Power to Contest) Act, 1920 (Act 2 of 1920) which has been left untouched by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) and runs thus: "4.
Savings This Act shall not affect any right to contest 'any alienation or ap pointment of an heir made before the date on which this Act comes into force.
" The alienation in question was admittedly made by Chuhar Singh in favour of Bhagwan Singh in 1885 i.e. long before the 28th day of May, 1920 the date on which the Punjab Custom (Power to Con 262 test) Act 1920 (Act 2 of 1920) came into force.
It was, therefore, not at all affected by Act 2 of 1920.
In this view of the matter, it is not necessary to go into the other contention raised by Mr. I Sethi, counsel for the appellants, to the effect that in any event the preliminary objection raised by Mr. Mehta is not tenable as the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) had not the effect of abrogating the declaratory decree already obtained by predecessors in interest of his clients prior to the coming into force of the Amending Act.
Having disposed of the preliminary objection, we now proceed to consider the contentions that have been pressed for our consideration by Mr. Sethi, counsel for the appel lants.
He has strenuously urged that section 14(1) of the Limitation Act was applicable to the facts and circumstances of the present case and that the Division Bench of the High Court has grossly erred in not giving the benefit of the provision to the appellants which would have entitled them to the exclusion of the time from October 10, 1945 to August 3, 1951 spent in prosecuting with due diligence and in good faith the previous suits in the court of first instance and in the courts of appeal which expressed their inability to entertain the suits on the ground that they were premature.
There is no force in these contentions.
It cannot be and has not been disputed that the present suits are governed by Article 2 of the Schedule annexed to the Punjab Limitation (Customs) Act, 1920 (Act 1 of 1920) which provides as follows : Description of suit Period of Time from which period limitation begins to run 2.
A suit for poss ession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the pla intiff according to custom (a) if no declar atory decree of the 6 years First : If the alienation nature referred is by a registered deed, to in Article 1 is the date of registration obtained.
of such deed.
Secondly If the aliena tion is not by a regis tered deed (a) if an entry regarding the alienation in the Register of Mutation has been attested by a Revenue Officer under the Punjab Land Revenue Act, 1887, the date on which the entry is attested.
263 (1) (2) (3) (b) if such entry has not been attested, the date on which the alienee takes physical posses sion of the whole or part of the property alienated in pursuance of such alienation.
(c) in all other cases, the date on which the alienation co mes to the know ledge of the plaintiff.
(b) if such declaratory 3 years The date on which the decree is obtained.
right to sue accrues or the date on which de claratory decree is ob tained, whichever is later As the plaintiffs had already obtained a declaratory decree, they had to, in order to be able to succeed, bring their suits within three yers of the accrual of the right to sue (which according to the well settled judicial opinion means the accrual of the right to seek relief) viz. within three years of the death of Kishan Singh when the line of Alia Singh became extinct.
They had to prove affirmatively that the death of Kishan Singh took place within three years of the institution of the suits.
The contention of counsel for the plaintiffs is, however, that Kishan Singh not having been heard of for more, than seven years since August 15, 1945, a presumption of the factum or his death has to be drawn at the expiration of seven years from that date in terms of section 108 of the Evidence Act.
We find it diffi cult to accept this contention.
Granting that Kishan Singh has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within seven years lies upon the person who claim a right for the establishment of which the proof of that fact is essential.
The plaintiffs had not only, there fore, to prove that Kishan Singh had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within seven years when Kishan Singh 's death occurred.
This they have miserably failed to prove.
In the absence of such proof, it cannot be held that the present suits had been brought within three years of the accrual of the right to sue.
We are supported in this view by a catena of au thorities.
In Nepean vs Doe D. Knight ; 7L J Ex 335 Lord Denman delivering the judgment of the Court observed : "The doctrine laid down is, that where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period 264 during those seven years; that if it be.
important to anyone to establish the precise time of such person 's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of.
Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, which would manifestly be contrary to the fact in almost all instances.
" This case was followed by a Division Bench of the Bombay High Court as far back as 1916 in Jayawant Jivanrao Desh pande vs Ramchandra Narayan Joshi (A.I.R. 1916 Bom.
300) A similar view was taken by the Privy Council in Lalchand Marwari vs Ramrup Gir (LIII I.A. 24: A.I.R. 1926 P.C. 9) where it was observed : "Under the Indian Evidence.
Act, 1872, section 108, when the Court has to determine the date of the death of a person who has not been heard of for a period of more than seven years, there is no presumption that he died at the end of the first seven years, or at any particular date." Another case in point is jiwan Singh vs Kuar Reoti Singh & Anr.
(A.I.R. 1930 All. 427), where it was held : "The presumption raised by section 108 is confined to the factum of death and not the exact time when death may have occurred.
Where a party affirms that a certain person died on or before a particular date, that fact has to be established by positive evidence.
" Similar view was expressed in Kottapalli Venkateswarlu vs Kottapali Bupayya & Ors.
(A.I.R. 1957 A.P. 380).
In Punjab & Ors.v.
Natha & Ors.
(A.I.R. 1931 Lab. 582).
a Full Bench of the Lahore High Court observed : "Where a person has not been heard of for seven years when a suit is instituted, section 108 comes into operation and raises a presump tion that at the institution of the suit he was dead, but no presumption arises as to the date of his death, which has to be proved in the same way as any other relevant fact in the case." Again in Ram Kali & Ors.
vs Narain Singh (A.I.R. 1934 Oudh 298 F.B.) it was laid down: "If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential." 265 In the instant cases, assuming that Kishan Singh died within seven years of the institution of the suits out of which the present appeals have arisen, even then the benefit of the section 14 cannot be allowed to the appellants.
This provision in so far as it is material for our purpose runs as follows : "14(1).
In computing the period of limitation prescribed for any suit the time, during which the plaintiff has been prosecut ing with due diligence another civil proceed ing, whether in a court of first instance or in a Court of Appeal, against the defendant shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it . . " It would be noticed that three important conditions have to be satisfied before the section can be pressed into service.
These three conditions are (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prose cuted in good faith in a court which from defect of juris diction or other cause of a like nature was unable to enter tain it and (3) the earlier proceeding and the later pro ceeding must be based on the same cause of action.
Now the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important.
Their scope has to be determined according to the rule of ejusdem generis.
Ac cording to that rule, they take their colour from the pre ceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit.
A Full Bench of the Lahore High Court consisting of Hatties C.J., Abdur Rahman, J and Mahajan J. (as he then was) expressed a simi lar view in Bhai Jai Kishan Singh vs People Bank of Northern India (supra).
In the instant cases, it is not denied by the ' plaintiffs that the Court which tried the previous suits was not pre cluded from entertaining them because of any defect of jurisdiction.
We have, therefore, only to see whether the said court was unable to entertain the former suits on account of any defect of an analogous character.
Even a most liberal approach to the question does not impel us to hold that the court trying the earlier suits was unable to entertain them on any ground analogous to the defect of jurisdiction.
In Dwarkanath Chakravarti vs Atul Chandra Chakravarti (I.L.R. where the court trying the previous suit had refused to entertain a claim for rent because it was premature, it was held that in a subsequent suit for the aforesaid rent, the plaintiff could not rely upon the provisions of section 14(1) of the Limitation Act and say that the time did not run against him while those proceedings were being prosecuted.
Again in Palla Pattabhi ramayya & Ors.
vs Velaga Narayana Rao (A.I.R. it was held that the fact that the previous suit was dis missed as the plaintiff had no cause of action was not a ground which was covered by section 14 (1).
266 Thus it could not be held that the court which tried the previous suits but eventually threw them out as.
premature suffered from inability or incapacity to entertain the suits on the ground of lack of jurisdiction or any other defect of the like character.
Accordingly the exclusion of the period from December 18, 1945 to August 3, 1951 sought by the appellants cannot be legitimately allowed to them while computing the period of limitation.
There is also another factor which prevents us from granting the benefit of section 14(1) of the Limitation Act to the appellants.
It would be seen that in the previous suits, the plaintiffs had averted that the cause of action accrued to them on the death of Kishan Singh which had occurred on August 15, 1945.
They have, however, as already indicated by reference to the averments made in paragraphs 5, 6, 8, 9, and 10 of the petition of plaint based the present suits on a different cause of action.
It is, however, not necessary to dilate upon this aspect of the matter in view of our categoric finding that the earlier suits did not suffer from any defect of jurisdiction or any other defect of the like character which could have preclud ed the court from entertaining them.
It is also significant that the protection of section 14(1) of the Limitation Act was not claimed by the plain tiffs either in the Trial Court or in the first appellate court.
Assuming, therefore, that Kishan Singh died within seven years of the institution of the suits.
out of which the present appeals have arisen even then the protection of section 14(1) cannot be allowed to the appellants and.
the suits have to be dismissed as time barred in terms of sec tion 5 of the Punjab Limitation (Customs) Act, 1920, (Act 1 of 1920) which is reproduced below for facility of reference : "5.
Dismissal of suits of the descrip tion specified in the act if instituted after the period of limitation herein prescribed has expired.
Subject to the provisions con tained in sections 4 to.
25 (inclusive) of the Indian Limitation Act 1903, and notwithstand ing anything to the contrary contained in the first schedule of the said Act, every suit, of any description specified in the schedule annexed to this Act, instituted after the period of limitation prescribed therefor in the schedule shall be dismissed, although limitation has not been set up as a defence.
" As a result of the foregoing discussion, the appeals fail and are hereby dismissed.
In view, however, of the circumstance of the case, the parties are left to pay and bear their own costs in these appeals.
BEG, J.
The question before us is: Were the three suits, the first instituted on 21st October, 1952, the second on 18th December, 1952, and the third on 5th May, 1953, tried and heard together, cut of which the three appeals before us arise, filed within time, and if they were filed beyond time, whether the plaintiffs in each suit were entitled to the benefit of Section 14 of the Limitation Act ? 267 Plaintiffs in the three suits instituted in circum stances explained fully by my learned brother Jaswant Singh, included all those persons who could sue as reversioners of Kishan Singh if it was proved that he was dead or presumed to be dead; and, they are all appellants before us.
It is evident from a bare statement of the case set up in each of the identically similar plaints in the suits now before us that, as three previous suits filed by these very plaintiffs in 1945 for the same reliefs had failed against the same defendants for want of proof of date of death of Kishan Singh, the suits now before us were based on somewhat dif ferent allegations setting up a new cause of action.
Other wise obviously, they would have been barred by res judicata.
As the learned Single Judge, before whom the three cases now before us first came up in the High Court, had pointed out, the earlier suits had failed because they were held to.
be pre mature so.
far as the cause of action now before us is concerned and for want of proof of the date of death of Kishan Singh so far as the actual cause of action set up there was concerned.
We also indicated, quite clearly, how the causes of action in the earlier and later sets of liti gation were quite different.
and why the new cause of action arose within three years before the filing of the suits.
Considerable confusion seems to have been caused by the prolixity of pleadings in the case so that, although the plaintiffs asserted clearly the accrual of a new cause of action, with the aid of a presumption, they were saddled with the responsibility to discharge another onus tied to the proof of a particular date which had been abandoned by them after their dismal failure in the earlier litigation to prove the actual date of death of Kishan Singh who.
had disappeared.
Could they fail again for the same reason although the cause of action they set up is fresh and dif ferent and arose within three years before filing of the suits ? That is the real question we have to answer.
Perhaps the way in which I look at the question and have stated it makes.
an answer in the negative unavoidable.
Hence, my inability, with great respect, to concur with another view put forward by my learned brother Jaswant Singh.
I think that the learned Single Judge, dealing with the question of limitation in the High Court, had correctly summarised the.
whole position and found as follows even without going into the question of burden of proof of date of death of Kishan Singh: "All the three sets of plaintiffs have come up in second appeal to this Court and Mr. M.L. Sethi has addressed a very persuasive argument on the question of limitation which in reality is now the only substantial matter in dispute.
He has pointedly brought to my notice the anomalous and baffling situation in which the plaintiffs have been placed.
According to the judgment of the High Court of 3rd August, 1951, it was found that the death of Kishan Singh had not been proved.
In other words, Kishan Singh was deemed to have been alive at the time when the High Court decree was passed on 3rd of August, 1951.
If that position is accepted, as indeed it must, the conclusion of the 268 Courts below, that Kishan Singh had been dead seven years before the institution of the present suits, cannot be sustained.
To this position there is the added complication of the defendant 's own admission that Kishan Singh was alive at the time when the statement was made by their counsel Milkhi Ram on 27th of April, 1953.
I find myself unable to assent to the proposition on which both the, courts below have founded their conclusions that suits must be.
regarded as barred by time as the date of death of Kishan Singh had not been proved.
The District Judge has arrived at his conclusion because in the previous suits it was asserted that Kishan Singh had died on 15th of August, 1945.
As the death of Kishan Singh had not been proved, the suits were dismissed up in the High Court being premature.
It passes my comprehension how it can now be said that Kishan Singh died some time before 1945 and the suits having been brought more than three years after his death are now barred by statute.
The previous suits filed by the three different sets Of plain tiffs were founded on the allegation that Kishan Singh had died in Ahmedabad some where in August 1945.
A good deal of oral and documentary evidence was led in support of Kishan Singh 's death.
The conclusion of the learned District Judge (Mr. Chhakan Lal) was that the plaintiffs had not succeeded in establishing the death of Kishan Singh and it could not, there, be held that the line of Alia had become extinct.
In the judgment, in second appeal, of Harnam Singh J., the only question which, was discussed was whether the death of Kishan Singh had been proved.
It is pertinent to observe ' that in the High Court it was common ground between both the parties that the: case did not fall under section 108 of the Indian Evidence Act.
Like the District Judge, Harnam Singh J. discussed the oral and documentary evidence, which had been adduced by the parties and agreed with the finding of the lower appellate Court.
Till 3rd of Au gust, 1951, when the judgment (of the HC in the previous suits) was delivered.
posi tion was that the death of Kishan Singh had not been established".
It seems to me that the learned Single Judge had suffi ciently indicared that the cause of action in the previous litigation was different from the one now before us inasmuch as the facts now proved indisputably, showing that Kishan Singh must be presumed to be dead, could not be and were not set up in the.
earlier suits.
In 1945, this cause of action had not accrued.
As the learned Single Judge held, the effect of the judgment in the formed suits was that those suits were premature.
This could not be said of the suits now before us in appeal.
It is true that the learned Single Judge had thought that, alternatively, Section 14 of the Limitation Act could apply inasmuch as the causes of action in the previous litigation as well as in the present litigation were identi cal.
In so far as the learned Single Judge postulated though for a limited purpose, an identity of causes of action of the previous and the present sets of suits, the assumption was inconsis 269 tent with his own emphatically expressed opinion revealing the difference in the causes of action.
The plaints in the suits before us set out the history of the whole litigation and clearly set up a case founded on new facts, not in existence at the time of the earlier litigation, and ex pressly state why the plaintiffs now rely on the presumption of death of Kishan Singh.
The identically similar plaints of the plaintiffs now before us were not based upon any assertion or plea of their own dispossession.
For such suits the period oil limitation was given in Article 2 to the schedule of the Punjab Limita tion (Customs) Act of 1920.
The provisions are set out in the judgment of my learned brother Jaswant Singh.
The period of limitation for such suits is three years from "the date on which right to sue accrues or the date on which declaratory decree is obtained, whichever is later".
If the previous suits were dismissed, as it seems to me that they were, on the ground inter alia, that they were premature, the cause of action could only be said to have accrued after their institution.
It seems to me that the learned District Judge, the fianl Court of facts in the suits now before us, had failed to determine the question whether Section 108 of the Evi dence Act could come to the aid of the plaintiffs on the erroneous assumption that, in any case, the plaintiffs ' suits would be barred by time as the plaintiffs had not proved when Kishan Singh had died.
The learned District Judge seemed to hold the view that not only would the plain tiffs ' suits be barred by limitation, because the plaintiffs could not prove the actual date of Kishan Singh 's death, but also that the presumption under section 108 itself will not be available to a party which could not prove the date of death of the person to be presumed to be dead.
At any rate, the learned District_ Judge was far from clear on the ques tion whether Section 108 would apply to the case.
He re corded his conclusion as follows: "So, it is clear from the above discussion that the plaintiffs appellants have failed to show that their suits are within time from the date of the death of Kishan Singh.
No doubt the presumption is there that Kishan Singh is not heard of for the last 7 years but the date of death was very necessary to be proved and this has not been done by any of the witness es".
If the date of death of Kishan Singh had to be proved by the plaintiffs, no question of invoking the aid of a pre sumption to prove death could arise.
Proof of death would dispense with the need reply on any mere presumption of death.
The result of the District Judge 's failure was that the Single Judge of the Punjab High Court had to record essential findings of fact on this crucial question.
of availability of the presumption of death.
These indicated, beyond the shadow of doubt, that the plaintiffs were enti tled to the benefit of the presumption laid down by Section 108 of the Evidence Act.
This meant that, on new facts asserted and proved, Kishan Singh could be presumed to be dead when the suits now before us were instituted in 270 1952 and 1953.
And, this presumption of the death of Kishan Singh having become available to the plaintiffs within three years of the suits and not before, no occasion for applying Section 14 Limitation Act could arise.
The defendants, while pleading the bar of limitation to the suits had, quite inconsistently, also tried to suggest that Kishan Singh was either alive or must be assumed to be alive.
The plaintiffs could not be expected, on their plea that, proof of date of death of Kishan Singh being absent, they were relying only on the presumption of death, to lead evidence Of any date of death.
All that could be reasonably expected from them was to show that the presumption became available to them within three years before the filing of their suits.
The learned Single Judge of the High Court had, in my opinion correctly, recorded the following finding which made the presumption of death of Kishan Singh avail able to the plaintiffs: "The plain fact of the matter is that no proof is forthcoming of Kishan Singh continued existence since 1945.
Since the judgment of the High Court in 1951, where it was held that the death of Kishan Singh had not been not proved, 8 years have elapsed.
There= can be No. escape from the conclusion now that Kishan Singh 's death must be presumed".
The learned Single Judge had also observed: "The decision of the High Court in 1951 should provide a suitable ground for extension of time under provisions of Section 14 of the Indian Limitation Act.
The whole basis of the judgment of the Courts below, in my opinion, is erroneous.
It is not a requirement of section 108 of the Indian Evidence Act that the date of death of the person whose death is presumed must be established.
All that is said is that if a person is not heard of for a period of seven years, his death may be pre sumed.
There is no presumption as to the time of death at any particular time within that period".
As I have already indicated, there was no need here to seek the aid of the provisions of Section 14 Limitation Act.
In Mohd. Khalil Khan vs Mohboob Ali Mian,(1) it was laid down: "A rough test, although not a conclusive one, as to whether the cause of action in a subsequent suit is the same as that in the former suit, is to see whether the same evidence will sustain both suits, and regard should be had to the allegations in the two suits, and not the facts found by the Court in the former suit".
On the facts of the cases before us, we find the evidence sought to be given in the previous suits was that Kishan Singh had died on a particu lar date (i.e. 15th.
August, 1945), but, the evidence in the subsequent suits (now before us for decision) was not that he had died on a particular date but that he had not been heard of from 5th August, 1945, up.to the time of the filing of new suits.
This evidence could not be given in the previous suit 'section Hence, the above test is satisfied.
(1) A.I.R. 1949 P.C. 78, 86. 271 In Smt.
Mahadevi vs Kaliji Birajman,(1) it was held that, if certain additional facts had to be proved for the success of the subsequent suit, the causes of action would differ.
It did not matter if there is a certain common ground to be covered by the evidence in both sets of cases.
This test would also be satisfied in cases before us now because the additional facts show that Kishan Singh had not been heard of by those who would have otherwise heard of him in the course of seven years.
This evidence could not be led at all in the previous suits as they were filed very soon after the alleged date of death of Kishan Singh.
If causes of action differ from suit to suit, the accrual of the cause action can also not be tied down to a particular kind of fact such as the date of actual death of the holder of the property.
Once it is held that the causes of action differ for purposes of their accrual, their accrual could not be made to depend on facts of one type only.
Facts denoting their accrual must differ from case to case.
Of course, proof of date of actual death is conclusive.
But, where the basis of the right to sue is presumption of death the date of accrual of the right is the date on which that presumption matures.
I have set out above the reasoning which appeals to me and makes the decision of this Court in India Electric Works Ltd. vs James Mantosh & Anr.
,(2) applicable to the cases now before us.
In that case, the appellant before this Court was a defendant tenant in a suit for recovery of damages with interest and costs.
In a previous suit the predecessor in interest of the plaintiff had sued the de fendant for ejectment, but the defendant had continued in occupation of the premises as the suit was compromised.
The accommodation was requisitioned on 2nd February, 1945.
After the accommodation was released by the Govt.
on 21st Novem ber, 1945, the plaintiff filed two suits against defendant one for the recovery of damages upto 1st February, 1944, and another for damage 's from 22nd November, 1945, upto the date of recovery of possession although there was no suit for possession.
When the matter came up before the High Court in appeal, the High Court disallowed the claim for future mesne profits on the ground that it "was a pure money suit and not a suit for recovery of possession of immovable property and for mesne profits under Order 20, Rule 12, Civil Procedure Code".
The plaintiff then filed a third suit on 5th November, 1956, for recovery of Rs.28,650/ as damages with interest thereon for a period from 22nd Novem ber, 1948, to 5th November, 1956.
The benefit of Section 14 of the Limitation Act was claimed for the amount claimed for the period beyond three years.
Two of the learned Judges of this Court, Shah and Grover, JJ., held that, although the claim for future mesne profits, not having been satisfied by the money suit of 1948, in which the decree of the Trial Court was Set aside on 30th June, 1955, by the High Court, a fresh cause of action arose from 30th June, 1955, yet, it was unnecessary to decide the case on that principle because the Court was satisfied that, in any event, Sec tion 14(1) of the Limitation (1) 1969 All L.J. 896.
(2) ; 272 Act, which had to be construed liberally, would cover the period for which the claim was said to be barred by limita tion.
Though, the third learned Judge, Hegde, J., seemed to be of the opinion that Section 24(1) of the Li,mitation Act could not help the plaintiff, yet, following the decision of the Judicial Committee in Mst.
Ranee Surno Moyee vs Shooshee Mokhee Burmonla & Ors.
(1) which had governed later decisions of the Privy Council and various High Courts a new cause of action, arising within the period of limitation, would , ensure to the benefit of the plaintiffs.
It seems to me that the lines on which the case of India Electric Works (supra) was decided enable us to correctly decide whether a new cause of action had accrued in favour of the plaintiffs in the suits before us, which were filed within three years of the accrual of this cause of action, as well as on the question whether, if this be not the correct position, Section 14(2) of the Limitation Act could be invoked by plaintiffs.
Indeed, the view accepted by the three Judges of this Court, that it is enough to institute proceedings within the prescribed period from the accrual of the fresh cause of action, appears to me to provide the common view we cannot reject.
This view would apply if we agree, as my learned brother Jaswant Singh does, that a cause of action had arisen here.
In State of Madras vs
V.P. Agencies & Anr.
,(2) Das, C. J., referred to various expositions of the meanings of the term "cause of action", including that by Lord Watson, in Mst.
Chand Kour vs Partap Singh,(3) where we find (at p. 1310): "Now the cause of action, has no rela tion whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff.
If refers entirely to the grounds set forth in the plaint as the cause of ac tion, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour".
The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circum stances which constitute either the infringement or the basis of a right and no more.
In a wider and more compre hensive sense, it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed.
These are all those essential facts without the proof of which the plaintiff must fail in his suit.
Now, whether we use the expression in the narrower or in the wider sense, in the case before us, the death of Kishan Singh was certainly an essential part of the cause of ac tion.
It had to be proved to enable the plainttiffs to put forward their claims to succeed at all.
But, proof of the date of death was not essential or indispensable for that purpose.
It could only become material in deciding whether the right which had accrued had (1)12 Moore 's I.A. 244.
(2) A.I.R. 1960 S.C. 1309 at 1310.
(3) 273 been extinguished by the law of limitation.
Both the nar rower and the wider sense of the term "cause of action" would certainly include all those facts and circumstances on the strength of which the plaintiffs urged that they were entitled to the benefit of the obligatory presumption of law contained in Section 108 of the Evidence Act.
As these were not available to the plaintiffs before the expiry of seven years from 5th August, 1945, it does not seem to be possible to urge that this cause_ of action had arisen more than three years before the filing of the suits now before us.
Applying the tests stated above, the causes of action in the earlier and later litigations would, in my opinion, be materially different.
We could only hold that no cause of.
action had arisen at all if we assume that Kishan Singh had not died at all.
And, how could we assume that without disregarding Section 108 Evidence Act ? If we cannot do that, the cause of action could only accrue when we could presume that he is dead, And, the date of its accrual could not possibly lie a day earlier than 7 years after 5th Au gust,1945, when Kishan Singh was last heard of.
As indicated above, the identity of the relief asked for in the earlier and later suits does not matter.
It also does not matter that the defendant in both sets of suits have.
attempted to suggest that Kishan Singh is still alive.
It iS they who had asserted that the plaintiffs ' rights were extinguished by the operation of the law of limitation.
Therefore, strictly speaking, it appears to me that it was for the defendants to establish, if they could, that Kishan Singh was either alive or had died more than three years before the 'suits were filed.
There is no proof of either of these here, The presumption under Section 107 of the Evidence Act could not.
come to the aid of the defendants when the plaintiffs had established facts necessary to raise the presumption under Section 108 of the Evidence Act.
There seemed to be irrefutable evidence that, after a letter of Kishan Singh, received at Ahmedabad on 5th August, 1945, nothing had been beard or was known about him.
Hence, the plaintiffs relied on the presumption under Section 108 Evidence Act 'because 'they could not prove the actual date of death which had a bearing only on the bar of limitation set up by the defendants.
As has been pointed out some times, the function of a presumption is to fill a gap in evidence.
In these circumstances, it seems to me that the defendants should have been called upon to show, before relying upon the bar of limitation, how the death of Kishan Singh took place on a date.
beyond three years of the filing of the suit before the question of applying Section 14 Limitation Act could arise at all.
The plaintiffs could only be required to show the accru al of their cause of action within the prescribed period of limitation.
They had, obviously, discharged that burden.
If the "media", to use the term employed by Lord Watson, quoted earlier, upon whiCh the plaintiffs rest their cases, are different in the previous and subsequent litigations, the causes of action are different, as held by ray learned brother Jaswant Singh also.
And, if the two causes of action are different, each with a different date of accrual that being the basic difference between the two sets of suits we have only to determine the date 19 1458SCI/76 274 of accrual of the second cause of action.
If the alleged date of death of Kishan Singh was the date of accrual of the previous cause of action, the date of accrual of the second could only be something other than this date of death of Kishan Singh.
It could not possibly be the same.
And, that other date of accrual could only be subsequent to 5th Au gust, 1945, because, as indicated above, it was held in the previous suit that ,the suit was premature on the ground that seven years since Kishan Singh was last heard of on 5th August, 1945, had not elapsed then.
Since the evidence was that he was last heard of at Ahmedabad on 5th August, 1945, the only possible date of accrual of the subsequent cause of action here could be seven years after that (i.e. 6th Au gust, 1952).
The suits before us were flied within three years of that date.
Therefore, I fail to see how the suits before us could possibly be held to be barred by Limitation.
We must not forget that Article 2 of Schedule to the Punjab Limitation (Customs) Act 1 of 1920, lays down that limitation for a suit for possession, which applies to the case before us, commenced from "the date on which the right to sue accrues" and not from the date of death of the holder of property.
The term "fight to sue" must, I think, be equated with "cause of action", unless the context indicates otherwise.
The choice of words used must be presumed to be deliberate.
I do not think that we can substitute "the date of death" for the date of accrual of "the right to sue '.
In the Limitation Act, as well as in other statutes, the accrual when intended to be tied to the date of some event, is specified as the date of that event.
Here, it is not so.
We cannot, without an obvious inconsistency with our find ings that the causes of action in the previous and subse quent limitations were different, hold that the date of accrual in both sets of suits is one and the same, that is to say, the actual date of death.
Such a view could, I think, be contrary also to the plaintiffs ' pleading where the difference in the causes of action must be found.
The solution to the difficulty before us emerges automatically if we answer two questions correctly: What was the differ ence between the two causes of action ? What is the effect of that difference upon the date of accrual of the subse quent and different cause of action ? It is well established that it is not in every suit for possession that the commencement of date dispossession must be established by the plaintiff.
It is only in a suit for possession, based on the allegation by the plaintiff of his own dispossession, that the burden has been held to be governed by Article 142 of the repealed Limitation Act (See Ram Gharib vs Bindhiyachal(1), and the plaintiff is required to prove the date of his dispossession within limitation.
Its equivalent, the present Article 64 of the Limitation Act of 1963, places the position beyond the region of every conceivable doubt.
: "64.
For possession of Twelve years The. date of immovable property dispossession.
based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
(1) A.I.R. 1934 All.
(ST.) 993.
275 Objects and Reasons Articles 142 and 144 of the existing Act have given rise to a good deal of confusion with respect to suits for possession by owners of property.
Article 64 as proposed replaces article 142, but is restricted to suits based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse posesssion".
(See: Chitaley & Rao the Limitatian Act 1903 Vo1.
There is no suggestion whatsoever in the suits before us that the plaintiffs were ever in possession so that no ques tion of their dispossession could possibly arise.
It was a pure and simple suit for possession on the basis of title against which the defendants had not even alleged adverse possession.
Hence, there was, it seems to me, no room here for bringing in the actual date of death, constructively, as the date of some presumed dispossession or adverse pos session which has not been asserted anywhere.
As pointed out earlier, the defendants seem to have cleverly drafted theft pleadings so that a Division Bench of the High Court, which had erroneously allowed the defendants ' appeals, had been misled into placing a burden upon the plaintiffs which, according to law, as I see it, could not rest there at all.
The Division Bench applied decisions on Section 14 of the Limitation Act when this provision could not, as explained below, be invoked at all.
The plain and simple question which arose on the pleadings was whether seven years had elapsed since Kishan Singh was last heard of by those who would, in the natural course of events, have heard from or about him if he was alive, and if so, did this happen within three years before the filing of the suits ? The plaintiffs have asserted and proved that this period of seven years had elapsed.
Accord ing to them, their cause of action matured within three years of their suits.
Even if, by some stretch of imagina tion, the concept of adverse possession of the defendants were to be introduced in this litigation, when neither the plaintiffs nor the defendants have pleaded it, it is abun dantly clear that the legal position is that the possession of defendants could not conceivably be adverse to Kishan Singh 's reversioners even before Kishan Singh could be presumed to be dead.
Indeed, the defendants had themselves set up the plea that he must be still deemed to be alive.
On these pleadings, the plaintiff could only be required to prove Kishan Singh 's death but not the date of his death or the date of the plaintiff 's dispossession which can occur only after a previous possession of the plaintiffs followed by the adverse possession of the defendants.
Neither cases dealing with recovery of possession on the plaintiff 's allegation of his own dispossession nor those where proof of date of death was a necessary part of either the cause of action or the plaintiff 's statutory duty, for showing that the suit was within time, are really applicable here.
We have a simple case before us where the cause of action seems to me to have clearly been shown to have arisen within three years before the filing of the suits.
Nevertheless,I will deal here with some authorities which are relied upon by my learned brother Jaswant Singh.
The first of these is: Nepean vs Deo D. Knight(1).
Inthis case, an action for ejectment was brought, apparently on an allegation (1) English Reports 150 Exchequer p. 1021.
276 of dispossession of the plaintiff by the defendants.
It was pointed out here that the terms of a statute, applicable in the case, having done away with the doctrine of "adverse possession", except in certain cases specially provided for, the question of adverse possession was unimportant.
It was, however, held that there was a statutory duty cast upon the plaintiff to bring his suit within twenty years of the accrual of the right of entry.
The date of this accrual, therefore, became essential to prove as a statutory duty.
On the terms of statutory provisions to be construed and the facts of the particular case, Denman C. J. said: (at p. 1029): "It is true the law presumes that a person shewn to be alive at a given time remains alive until the contrary be shewn, for which reason the onus of shewing the death of Matthew Knight lay in this case on the lessor of the plaintiff.
He has shewn the death by proving the absence of Matthew Knight, and his not having been heard of for seven years, whence arises, at the end of those seven years, another presumption of law, namely, that he is not then alive; but the onus is also cast on the lessor of the plaintiff of shewing that he has commenced his action within twenty years after his right of entry accrued, that is, after the actual death of Matthew Knight".
This was really a case in which it was not enough to invoke the presumption of death, but, the right to sue itself depended on commencing the suit within 20 years of the date of accrual of the right to entry which was held to be the actual date of death of Matthew Knight who had disappeared In the case before us, I think that the accrual of the right to sue arises only seven years after Kishan Singh was last heard of.
If Nepean 's case (supra) could or did lay down anything applicable to the cases before us, I am unable, with great respect, to accept it as correct law which we could follow.
In my opinion, the facts as well as the applicable provisions of law in the case before us are very different from those in Nepean 's case (supra) which could, in any event, not be more than an authority of some persua sive value in this Court.
In Jaswant livanrao Deshpande vs Ramchandra Narayan Joshi,(1) in a suit governed by Article 141 Limitation Act, it was held (at p. 301): "article 141 Lira.
Act, is merely an exten sion of article 140, with special reference to persons succeeding to an estate as reversioners upon the cessa tion of the peculiar estate of a Hindu widow.
But the plaintiff 's case under each article rests upon the same principle.
The doctrine of non adverse possession does not obtain in regard to such suits and the plaintiff suing in ejectment must prove, whether it be that he sues as a remainderman in the English sense or as a reversioner in the Hindu sense, that he sues within 12 years of the (1) A.I.R. 1916 Bom.
300 @ 277 estate failing into possession, and that onus is in no way removed by any presumption which can be drawn according to the terms of section 108,Evidence Act.
The exact point for the purpose of article 140, and also, in our opinion, of article 141, has been decided many years ago in England soon after the passing of the English Law of Limitation regarding Real Property in Nepean vs Deod.
Knight L.J. exhibit 335".
It is evident that here the cause of action laid down by the statute itself arises from actual date of death.
This case, like the previous one, turns on the special meaning of the statutory provisions prescribing a person 's actual death as the point of time from which the period of limitation is to commence.
In the cases before us the statute explicitly makes a different provision.
We are not concerned at all here with anything more than an accrual of a right to sue which must be shewn to arise within the prescribed period.
No question of any accrual of a right of re entry or one arising from adverse possession or the date on which such rights could conceivably arise is before us at all.
In Lal Chand Marwari vs Mahant Ramrup Gir & Anr.
(1) the suit seems to have been based on an allegation by the plain tiff of his own dispossession by the defendant.
Hence, it.
was governed by Article 142 of the former Limitation Act, the equivalent of which is Article 64 of the Limitation Act of 1963.
It seems to me that Article 144 of the old Limita tion Act is mentioned by mistake in the body of the judgment here.
In any event, the statement of facts showed that the plaintiff had pleaded his own dispossession, or, at least, the plaint could be so construed as to imply that.
Hence, a case of this.
type is distinguishable.
In Jiwan Singh vs Kaur Reoti Singh & Anr,(2) a decree in a previous suit brought against a person alleged to be insane as well as not heard of for more than seven years had been assailed on several grounds: that, the defendant was insane; that, the defendant was unheard of for more than seven years, and, therefore, should have been deemed to be dead; that, the decree was obtained by fraud.
As the High Court upheld the plea of fraud, it did not consider it necessary to decide on other grounds.
Nevertheless, it pointed out, quite correctly, that the presumption under Section 108 of the Evidence Act only enables the Court to presume the factum of death but not the date of death.
No question of limitation arose at all in this case.
In Kottapalli Venkateswarlu vs Kottapalli ' Bapaya & Ors,(3) reliance was placed, Inter alia, on Punjab vs Natha,(4) which, in my opinion, was wrongly decided.
Venkateswarlu 's case (supra), however.
arose on facts and circumstances in which the proof of date of death was neces sary to determine as the question was whether a legatee had (1) A.I.R. 1926 P.C. 9.
(2) A.I.R. 1930 All. 427.
(3) A.I.R. 1957 AP.
(4) A.I.R. 1931 Lah.
582 (F.B.).
278 survived the testator.
In such a case, proof of date of death is necessarily a part of the cause of action.
In Ram Kali & Ors.
vs Narain Singh,(1) it was held that: (at section 299 300): "Before the plaintiff can succeed in approving himself to be the nearest reversion ary heir, he must prove in sequence that Harpal Singh and after him Pahalwan Singh and after him Sheo Ghulam Singh and after him Kali Singh predeceased Ram Lal.
The exact date of Ram Lal 's death is important from the point of view of the success of the plaintiff 's case, because it was only then that succession opened out, and it is only by proving the exact date of Ram Lal 's death that the plain tiff can succeed in establishing his claim to be the nearest reversionary heir of Ram Lal".
This, in my opinion, is the type of case in which the date of death is an essential part of the plaintiff 's cause of action so that the failure to prove it would involve the failure of the plaintiff 's suit.
Incidentally, it may be observed that this also seemed to be a case in which the plaintiff appears to have come to the Court with a suit for possession on the allegation of his own dispossession.
Hence, it became necessary for the plaintiff to prove the date of commencement of the defendant 's adverse interest.
It seems to me that wherever the accrual of a right or com mencement of a period of limitation, within which a suit must be shewn by the plaintiff to have been brought, can only be established by proving the date of a person 's death that duty must be discharged by the plaintiff or the suit will fail.
But, to carry the doctrine beyond that and to lay down that the date of death must invariably be proved whenever the question of limitation is raised in such cases must result in stultifying or defeating legal rights and wiping out the effects of a statutory presumption.
An accrual of a cause of action based on untraceability of the owner cannot be said to depend at all on proof of either actual death or the date of the actual death of the owner.
It accrues as soon as death can be presumed and not a day earlier.
I may point out that the rule laid down in re Phene 's Trusts(2), which has been repeatedly followed by the Privy Council and by our.
High Courts, was enunciated in the circumstances of a case in which it was absolutely essential for the success of the claim before the Court that a legatee claimant must be shown to have survived a testator.
It was a case in which there was a competition between claimants which could only be resolved by a decision of the question as to who died first.
It is in such circumstances that the onus of proving the date of death also would properly and squarely lie upon the plaintiff claimant.
The general principles were thus enunciated in this case(at p. 144): "First: That the law presumes a person who has not been heard of for seven years to be dead, but in the absence (1) A.I.R. 1934 Oudh 298 @ 289,300.
(2) 5 Chancery Appeal cases p. 139 @ 144.
279 of special circumstances draws no presumption from that fact as to the particular period at which he died.
Secondly: That a person alive at a certain period of time is, according to the ordinary presumption of law, to be pre sumed to be alive at the expiration of any reasonable period afterwards.
And, thirdly: That the onus of proving death at any partic ular period within the seven years lies with the party alleging death at such particular period".
It is neither a part of the case of any plaintiff before us nor necessary for the success of his case to prove that Kishan Singh died on a particular date or that.
Kishan Singh died before or after somebody else.
I, therefore, fail to see, with great respect, how the plaintiffs can be saddled with the responsibility to prove this date in the suits now before us.
It was nobody 's case that Kishan Singh died long ago and that the defendants have been in open hostile ad verse possession against Kishan Singh and whoever may be his heirs or feversioners.
In the earliest litigation, the defendants claimed as transferees of the rights of Kishan Singh.
The declaratory decree restricted their rights to the life time of Kishan Singh.
Their rights could not extend beyond the point of time when Kishan Singh must be presumed to be dead.
That is the farthest limit of their rights.
They knew this after the litigation which terminat ed in 1902.
That is why, in the suit 's now before us, they took up the alternative case, though rather obliquely, that Kishan Singh must be or at least deemed to be alive, so that they may benefit from the declaration in 1902 that their rights were limited to the life time of Kishan Singh.
If, even after litigating for such a long period, the plaintiffs are still to be denied their rights to Kishan Singh 's property, to which they were declared entitled to succeed, they would be really deprived of the benefit of the presumption under section 108 of the Evidence Act on the ground that they could not prove the date of his death when they have been asserting repeatedly that the basis of their present claim is that although the actual date of death of Kishan Singh cannot be proved, yet, he has not been heard of for seven years and that they had to wait seven years more for this claim to mature.
That it could and did mature in 1952 follows logically from the judgment of the High Court in 1951 which is binding inter partes.
The plaintiffs are, in my opinion, on the actual basis of their claims, entitled to succeed.
That basis having emerged within three years before the filing of the suits, their suits could not possibly be barred by time.
If the right to sue had not been proved to have accrued at all, due to want of proof of date of death of Kishan Singh, the suits could perhaps, more logically be held to be still premature or infructuous.
But, I fail to see how, even on such a view, we could hold them to be barred by time.
If the cause of action itself does not arise no question of the extinguish ment by the law of limitation could emerge.
If, for some reason, we could still hold that the plain tiffs ' claims were made beyond the period of Limitation.
I think that this would be a fit case in which Section 14(1) of the Limitation Act could 280 come to the aid of the plaintiffs provided there was identi ty of issues to be tried.
The previous suits did not fail for want of jurisdiction.
Nevertheless, the provision has to be liberally construed as this Court has to be a period of time, shown to have elapsed since the expiry of the present suits was certainly due to the fact that no Court could decree the claim before the cause of action matured.
This was, certainly beyond the control of the plaintiffs.
There fore, a cause of "like nature" to a defect of jurisdiction seems to me to be there.
Indeed, it could be urged that it is a stronger ground in equity than a lack of jurisdiction which can be foreseen with sufficient deligence.
It is far more difficult to predict the outcome of a suit depending largely on oral evidence.
The defect revealed by the evi dence in he earlier litigation was that the suits did not lie at all as they were "premature".
This was, in my opin ion, a defect reasonably comparable to want of jurisdiction.
I, however, find it very difficult to attempt to apply Section 14 Limitation Act to the cases before us for two reasons.
Firstly, there has to be a period of time, shown to have elapsed since the expiry of the period of limita tion, which could be excluded under section 14.
If the cause of action does not accrue at all there is no point of time from which any period of limitation could run.
Hence, if no cause of action could accrue at all unless and until the date of actual death of Kishan Singh is established, there could be no commencement of a period of limitation.
If that be the correct position, where is the question of excluding any time in computing it ? The only possible point from which limitation could start running here is the date on which seven years expired from the date on which Kishan Singh was last heard of.
This was within three years before filing of the suits as pointed out above.
Secondly, Section 14 provides that the time to be excluded spent in proceed ings prosecuted in good faith must relate to "the same matter" as is "in issue" in the subsequent proceeding.
It seems to me that the issue in the earlier litigation was whether Kishan Singh was actually shown to have died on a particular date.
This was quite different from the issue decided in the cases now before us.
This is whether Kishan Singh 's whereabouts had remained unknown for seven years so that he could be presumed to be dead.
I, therefore, rest my judgment solely on the ground that, the causes of action in the previous litigation and the litigation now before us being different, and the subsequent cause of action having arisen within three years before the filing of the suits before us, the suits were not barred by limitation.
The Division Bench of the Punjab High Court had proceeded on the obviously erroneous assumption that the learned Single Judge had decided the appeals only by giving the appellants the benefit of Section 14, sub.
s (1) of the Limitation Act.
It had overlooked completely the very first ground of deci sion of the learned Single Judge and also the condition imposed by the learned Judge on the application of Section 14 by.
using the words: "if found necessary".
The learned Judge had held: 281 "Admittedly,.
the whereabouts of Kishan Singh are still not known and, in my opinion, there can be no escape from the conclusion on these facts that the death of Kishan Singh must be presumed under Section 108 of the Indian Evidence Act as he had not been heard of for a period of seven years.
The present suits were brought between 21st of October, 1952 and 5th of May, 1953.
The correct ap proach to reach a solution of the present problem is to give allowance to the plain tiffs, if found necessary.
for the period which they spent in previous litigation that is to say, from the years 1945 to 1951".
The Division Bench had thus completely ignored the effect of the finding of a new cause of action arising within three years before the filing of the plaintiffs suits.
In my opinion, this finding of the learned Single Judge was enough to dispose of these appeals.
And, as I have pointed out above, question of either a time bar or its removal by resorting to Section 14(1) Limitation Act postu lates that a point of time from which lirai, ration can run has been ascertained.
As that point, on the findings of every Court, including this Court, could not be the date of Kishan Singh 's death, which is unknown, the suits could not possibly be dismissed on that ground.
They could con ceivably be dismissed on the finding that the date of death of Kishan Singh, being an indispensable part of the cause of action, the plaints do not disclose a cause of action at all, and, therefore, should have been rejected.
But, the defendants have not taken any such plea directly.
Nor was this argued on heir behalf.
For the reasons given above, I regret to have to re spectfully differ from the view adopted by my learned broth er Jaswant Singh.
I am unable to accept an interpretation of the relevant provision prescribing limitation which would confine the accrual of a cause of action only to cases of direct proof of death, on a particular date.
Such a view implies that suits based on a presumption of death are devoid a cause of action which could support a suit by a reversioner.
I do not think that the provision we have to interpret was meant to define or restrict a right of suit or a cause of action in this fashion at all.
The object of a "statute of repose" is only to extinguish rights of the indolent but not to demolish the causes of action of those who have not been shewn lacking in vigilance in any way whatsoever.
Consequently, I would allow these appeals, set aside the judgment and decrees of the Division Bench of the High Court and restore those of the learned Single Judge and leave parties to bear their own costs throughout.
P.B.R. Appeals dis missed.
| IN-Abs | The appellants filed three suits (the earliest of the three suits was filed on December 18, 1945) for possession of lands claiming that K, the last owner of the lands died on August 15, 1945.
Those suits were dismissed on August 3, 1951, as premature on the ground that the fact of the death of K had not been established.
The appellants again instituted three suits in October 1952, December 1952 and May 1953 for the same relief as in the previous suits alleging that the right to sue had ac crued after August 16, 1952, that is, after a period of seven years, under section 108 of Evidence Act; that K died three years before the date.
of the filing of the suits; and that they were within time under article 2(b) of the.
Schedule annexed to the Punjab Limitation (Customs) Act, 1920 which provides that the period of limitation for a suit for pos session of ancestral immovable property which has been alienated, is three years, if a declatory decree has been obtained, and that period commences from the date on which the right to sue accrues.
On appeal, a single Judge of the High Court decreed the suits holding that K having been treated as alive by the High Court when it passed the previous decree in 1951, the conclusion of the lower courts that he had been dead for seven.
years before the institution of the suits could not be sustained and also excluded the time spent on the previ ous litigation from 1945 to 1951 under section 14(1) of the Limitation Act.
On Letters Patent appeal, the Division Bench held: (1) that the single Judge was in error in ex cluding the time spent on the previous litigation by apply ing section 14(1) of the Limitation Act; (ii) that the words "or other cause of a like nature" occurring in section 14(1) had to be read ejusdem generis with the preceding words "relating to the defects of jurisdiction" and that it was not possible to give the benefit of that provision to the plaintiffs.
Dismissing the appeal to this Court (per A.N. Ray, C.J. and Jaswant Singh, J) HELD: (1) Under article 2(b) of the Schedule to the Punjab Limitation (Customs) Act, 1920 in order to be able to succeed the plaintiffs must bring their suits within three years of the accrual of the right to sue (which ac cording to well settled judicial opinion means the accrual of the right to seek relief), namely within three years of the death of K.
They had to prove affirmatively that the death of K took place within three years of the institution of the suits.
Granting that K has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within seven years lies upon the person who claims the right for the establishment of which the proof of that fact is essential.
The plaintiffs had not only, therefore, to prove that K had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within seven years when K 's death occurred.
This they have failed to prove.
In the absence of such proof, it cannot be held that the present suits had not been brought within three years of the accrual of the right to sue.
[263 D G] 251 Nepean vs Doe D. Knight ; ; , Jayawant Jivarao Deshpande vs Ramachandra Narayan Joshi (A.1.R. 1916 Born.
300), Lalchand Marwari vs Ramrup.
Gir (LIII I.A.24; A.I.R. 1926 P.C. 9), Jiwan Singh vs Kuar Reoti Singh & Anr.
(A.I.R. 1930 All. 427), Kottappalli Venkates warla vs Kottapalli Bapayya & Ors.
(A.I.R. 1957 A.P. 380), Punjab and Ors.
vs Natha & Ors.
(A.I.R. and Ram Kali & Ors.
vs Narain Singh (A.I.R. 1934 Oudh 298 F.B.) referred to.
(2) If K had died beyond three years, from the date of the suits, the suits would be barred by limitation because the appellants cannot claim the benefit of section 14 of the Limitation Act 1908.
The three important requirements of the section are: (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it and (3) the earlier proceeding and the later proceeding must be based on the same cause of action.
[265 D] (3) The contention that the appeals had been rendered untenable as a result of the amendment made to section 7 of the Punjab Customs Power to Contest) Act 1920 by the Amending Act 12 of 1973 has no force and must be rejected.
Section 4 of the Act provides that the Act shall not affect any right to contest any alienation or appointment of an heir made before the Act came into force.
This section has been left untouched by the Amending Act of 1973.
In the instant case, the alienation was made before the 1920 Act came into force and was not affected by that Act.
[261 F H] (4) The words "or other cause of a like nature" in section 14(1) take their colour from the preceding words "defect of jurisdiction" according to the rule of ejusdem generis.
Therefore, the defect must be of a character analogous to jurisdiction barring the Court from entertaining the previ ous suit.
In the instant case, the Court which tried and dismissed the previous suits as premature did not suffer from inability or incapacity to entertain the suits on the ground of lack of jurisdiction or any other ground analogous to the defect of jurisdiction.
The exclusion of the period during which the previous suits were pending, could not, therefore, be allowed to the plaintiffs while computing the period of limitation.
[265 E; I 1; 266 A] Bhai lai Kishan Singh vs People Bank of Northern India, I.L.R. , Dwarkanath Chakravarti vs Atul Chan dra Chakravarti (I.L.R. and Palla Pattabhira mayya & Ors.
vs Velga Narayana Rao (A.I.R. referred to.
[Obiter: The causes of action in the previous suits and in the present suits are also different.
And hence the appellants cannot press section 14 into service.] Beg, .J. (Dissenting) The Division Bench of the High Court was wrong in ignor ing the effect of the finding of the single Judge that a new cause of action had arisen within three years before the filing of the plaintiffs ' suits.
[281 C] The question of time bar or its removal by resorting to section 14(1) of Limitation Act postulates that a point of time from which limitation could run had been ascertained.
As that point could not be the date of the death of K, which was unknown the suits could not be dismisses on that ground.
[281 D] (1) The single Judge had sufficiently indicated that the cause of action in the previous litigation was different from the one in the later inasmuch as the facts proved in the later case showing that K must be presumed to be dead could not be and were not set up in the earlier suits.
The cause of action had not accrued in 1945.
The effect of the judgment in the former suits was that these suits were premature, which is not the case in the suits in appeal.
The plaints in the later cases set out the case founded on new facts not in existence at the time of the earlier liti gation and expressly stated why the plaintiffs rely on the presumption of death of K.
If the previous suits were dismissed on the ground that they were premature, the cause of action could only, be said to have accrued after their institution.
[268 G; 269 C] 252 The findings of the single Judge showed that the.
plain tiffs were entitled to the benefit of the presumption laid down by section 108 of the Evidence Act.
He found that till August 3, 1951 when the judgment of the High Court in the previous suits was delivered, the position was that the death of K had not been established.
This meant that on new facts asserted and proved, K could be presumed dead when the subsequent suits were instituted in 1952 and 1953.
This presumption of death having become available to the plain tiffs within.
three years of the suits and not before, no occasion for applying section 14 of the Limitation Act could arise.
The evidence sought to be given in the previous suits was that K had died on a particular date but the evidence in the subsequent suit was not that he had died on a particular date but that he had not been heard of from August 5, 1945 upto the time of filing of the subsequent suits.
[269 H; 270 H] Modi Khalil Khan vs Mahboob Ali Mian, A.I.R. 1949 PC 78 at 86 referred to.
(2) (a) If causes of action differ from suit to suit, the accrual of the cause of action can also not be tied down to a particular kind of fact such as the date of actual death of the holder of the property.
Once it is held that the causes of action differ for purposes of their accrual, their accrual could not be made to depend on facts of one type only.
Facts denoting their accrual must differ from case to case.
Proof of date of actual death is conclusive.
But, where the basis of the right to sue is presumption of death, the. date; of accrual of the right is the date on which that presumption matures.
[271 C] Indian Electric Works Ltd. vs James Montosh & ,Anr. ; followed.
Rante Surno Moyee vs Shooshee Mokhee Burmonia & Ors.
12 Moore 's I.A. 244, State of Madras
V.P. Agencies & Anr.
AIR 1960 SC 1309 at 1310 and Mst.
Chand Kour vs Partap Singh, , referred to.
(b) The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circum stances which constitute either the infringement or the basis of a right and no more.
In a wider and more compre hensive sense it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed.
These are all those essential facts without the proof of which the plaintiff must fail in his suit.
[272 G] (c) Applying these tests, in the instant case, the causes of action in the earlier and later litigations would be materially different.
No cause of action had arisen at all if it is assumed that K had not died at all.
K 's death was an essential part of the cause of action.
It had to be proved to enable the plaintiffs to put forward their claims to succeed.
But proof of the date of death was not essen tial or indispensable for that purpose.
It could only become material in deciding whether the right accrued had been extinguished by the law of limitation.
Both the narrow and wider sense of the term "cause of action ' would include all those facts and circumstances on the strength of which the plaintiffs urged that they were entitled to the benefit of the obligatory presumption of law contained in section 108 of the Evidence Act.
As these were not available to the plain tiffs before the expiry of seven years from August 5, 1945, it was not possible to urge that this cause of action had arisen more than three years before the filing of the suits.
Therefore, the date of its accrual could not lie a day earlier than seven years after August 5, 1945 when K was last heard of.
[272 G H; 273 A B] (d) It was for the defendants to establish that K was either alive or had died more than three years before the suits were filed.
The presumption under section 107 of the Evidence Act could not come to the aid of the defendants when the plaintiffs had established facts necessary to raise the presumption under section 108 of the Evidence Act.
[273 E] (e) The suits are not barred by limitation.
The plaintiffs discharged their burden as to when the accrual of their cause of action was within the prescribed period of limita tion.
If the "media" upon which the plaintiffs rest their cases 253 are different in the previous and subsequent litigations, the causes of action are different.
If the alleged date of death of K was the date of accrual of the previous cause of action, the date of accrual of the second could only be something other than the date of death of K, it could not possibly be the same.
The other date of accrual could only be subsequent to August 5, 1945 because it was held in the previous suit that the suit was premature on the ground that seven years since K was last heard of had not elapsed then.
Since the evidence was that he was last heard of on August 5, 1945, the only possible date of accrual of the subsequent cause of action could be seven years after the date.
The suits were filed within three years of that date.
[273 H; 274 A C] (3)(a) The term 'right to sue ' occurring in article 2 of Schedule to the Punjab Limitation (Customs) Act 1 of 1920 must be equated with cause of action.
" The "date of death" cannot be substituted for the date of accrual of the "right to use".
In the Limitation Act the accrual when intended to be tied to the date of some event is specified as the date of that event.
In this case, it is not so.
It cannot be held that the date of accrual in both sets of suits is one and the same, that is to say, the actual date.
of death.
[274 D] (b) Wherever the accrual of a right or commencement of a period of limitation, within which a suit must be shown by the plaintiffs to have been brought, could only be estab lished by proving the date of a person 's death, that duty must be discharged by the plaintiffs or the suit will fail.
But to carry the doctrine beyond that and to lay down that the date of death must invariably be proved, whenever the question of limitation is raised in such cases must result in stultifying or defeating legal right and wiping out the effects of a statutory presumption.
The accrual of a cause of action based on untraceability of the owner could not be said to depend at all on proof of either actual death or the date of actual death of the owner.
It accrues as soon as death can be presumed and not a day earlier.
[278 D F] (c) It is not in every suit for possession that the com mencement of the date of dispossession must be established by the plaintiffs.
It is only in a suit for possession based on the allegation by the plaintiff of his own dispos session that the burden is governed by Art, 142 of the Limi tation Act.
[274 G] (d) In the instant ease, the plaintiffs were never in pos session and, therefore,there was no question of their dis possession.
It was a pure and simple suit for possession on the basis of title against which the defendants had not even alleged adverse possession.
Therefore, there is no need to bring in the actual date of death constructively, as the date of the presumed dispossession or adverse possession has not been asserted anywhere.
[275 B] (e) The plaintiffs have asserted and proved that the period of seven years when K was last heard of by those who would in the natural course of events have heard of or about him if he was alive, had elapsed and that their cause of action matured within three years of their suits.
Assuming that the concept of adverse possession of the defendants was to be introduced, the legal position is that possession of defendants could not be adverse to K 's reversioners even before K could be presumed to be dead.
The defendants them selves had set up.
the plea that he must be still deemed to be alive.
The plaintiffs could only be required to prove K 's death but not the date of his death or the date of the plaintiffs ' dispossession.
Neither cases dealing with recov ery of possession on the plaintiffs ' allegation of their own dispossession nor those where proof of date of death was a necessary statutory duty for showing that the suit was within time; are applicable in these cases.
[275 E F] Nepean vs Doe D. Knight (English Reports 150 Exchequer p. 1021), Jayawant Jivanrao Deshpande vs Ramachandra Narayan Joshi, AIR 1916 Bom.
300 & 301.
, Lal Chand Marwari vs Mahant Ramrup Git & Anr.
AIR 1926 PC 9, Jiwan Singh vs Kuar Reoti Singh & Anr.
AIR 1930 All.
427, Kottapalli Venkateswarlu vs Kottapalli Bapayya & Ors.
AIR 1957 AP 380 Punjab v Natha AIR 1931 Lab.
582 (FB) & Ram Kali & Ors vs Naraian Singh AIR 1934 Oudh 298 & 299 300, refrered to.
254 (f) It is neither a part of the case of any plaintiff in these cases nor necessary for the success of his case to prove that K died on a particular date or that K died before or after somebody else.
The plaintiffs cannot be saddled with the responsibility to prove this date.
[279 ,B] (4) The suits were not barred by limitation because the causes of action in the previous litigation and the litiga tion now are different and the subsequent cause of action has arisen within three years before the filing of the suits.
Assuming that the suits were filed beyond the period of limitation on the actual basis of their claims the plaintiffs are entitled to succeed because this is a fit case in which section 14(1) Limitation Act could come to the aid of the appellants.
They had been asserting repeatedly that the basis of their claim was that although the actual date of death of K could not be proved, yet, he has not been heard of for seven years.
That basis having emerged within three years before the filing of the suits, their suits could not be barred by time.
If the causes of action did not arise no question of its exceeding by the law of limitation, could emerge.
[280 G] The previous suits did not fail for want of jurisdic tion.
The delay in bringing the present suits was due to the fact that no court could decree the claim before the cause of action matured.
Therefore, the cause of action of a "like nature" to a defect of jurisdiction is present in these cases, since the provision has to be liberally con strued.
The defect revealed by the evidence in the latter litigation was that the suits did not lie at all as they were premature.
This was a defect reasonably comparable to a want of jurisdiction.
[280 A C] India Electric Works Ltd. vs James Mantosh & Anr. ; , followed.
(5)(a) If no cause of action could accrue at all unless and until the date of actual death of K was established, there could be no commencement of a period of limitation.
The only possible point from which limitation could start framing in these, cases is the date on which seven years expired from the date on which K was last heard of.
This was within three years before filing of the suits.
[280 D] (b) The issue in the earlier litigation was whether K was actually shown to have died on a particular date.
This was quite different from the issue decided now, which was whether K 's whereabouts had remained unknown for seven years so that he could be presumed to be dead.
[280 F] ARGUMENTS For the appeliants: The legal presumption under Section 108 was not sought to be raised in the prior suits.
It was for the first time raised in the subsequent group of suits instituted in Octo ber, 1952 based on the allegation that Kishan Singh was not heard of since 15th August, 1945.
This submission opens the questions (i) when is the presumption of death to be raised and (ii) whether for the purpose of proceedings in which it is raised or any prior proceedings.
The presumption is to be raised in the pro ceedings where the question has been raised i.e. the second group of suit.
However, there is no presumption as to the time of death of the person whose death is accepted as a result of presumption.
The two are distinct matters (i) the legal presumption of death and (ii) the time of death preceding the period when presumption is drawn.
The death may be at any time during the preceding period of 7 years the period that has enabled the court to draw presumption of death.
The law requires that if one has to establish the pre cise period during these 7 years at which such person died he must do so by evidence.
255 The conclusion of the court of presumption of death based upon disappear ance from 15th August, 1945 cannot be ignored.
Death at any time on or after 15th August, 1945 does not in any manner adversely affect the case of the appellants, inasmuch as the parties had instituted suits (of course premature) on 18th December 1945 (other suits some time later decided by a common judgment).
If the parties are held entitled to the benefit of deduction of time from 18th December 1945 to 3rd August, 1951, the death of Kishan Singh even if it took place between 15th August, 1945 to any date before 3rd August, 1951 the suit are not barred by limita tion.
On the pleading of the parties it cannot be assumed that the presumption of death would justify acceptance of date of death, any time prior to 15th August, 1945.
The period of limitation for the suit for possession was 3 years The defendants had not pleaded in the prior suit that the suit was.
barred by limitation as instituted.
In other words it was not alleged that he had died at any time 3 years prior to the institution of the suit (18th December, 1945).
Actually death has not been admitted even on 15th August, 1945.
The trial Court and the District Judge held the suit to be time barred not on the ground that his death had taken place at a period exceeding 3 years from the date of the institution of the first suit.
They have apparently not ignored the possibility of death having taken place during the period between 18th December, 1945 to 3rd August., 1951.
They have held the. suit to be time barred because it was considered that the appellants are not entitled to deduct the stated period spent in the prior suits.
Even if it is considered that death had taken place during this period or any time after 15th August, 1945 or during the 3rd August to 31st October, 1952 the suits are not time barred.
Preliminary objection was raised by the respondents as to the effect of the Punjab Customs (Power to Contest) Amendment Act, 1973 (Punjab Act 12 of 1973).
It was urged that the Act had come into force on 23rd January, 1973, it has retrospective operation and bars all suits to contest alienation also including the suits for possession of the property following a declaratory decree.
It was urged that the appeals are barred as a consequence of repeal of the provisions of Punjab Act II of 1920.
The contention as to the effect of Act 12 of 1973 is not correct.
The previous law on the subject of right to contest alienation of immovable property and the limitation of suits relating to alienation of ancestral immovable property is regulated by two Acts.
(1) Punjab Act II of 1920 Described an Act to restrict the powers of the descendents or collaterals to contest an alienation of immovable property; and (2) Punjab Act I of 1920 Described as an Act to amend and consolidicate the law govern ing the limitation of suits relating to alien ations of ancestral immovable property etc.
The present Act 12 of 1973 repeals section 6 of Act II of 1920.
It also amends section 7 of the aforesaid Act.
Effect of the repeal of section 6 and amendment of section 7 merely is that the right to.
contest vesting in the collaterals upto 5th degree has been done away with and the suit to contest alienation of ancestral property has been taken away.
Under the previous existing law an alienation of non ances tral property could not be contested.
Act I of 1920 has also not been repealed.
The limitation provided for a suit for possession i.e. 3 years is still an existing provision of the Act.
It is obvious that the legislature has retained 256 Act I of 1920 unrepealed so that the benefit of the decrees may be available to all persons under section 8 of the Act and the period of limitation may be retained as before.
The effect of the declaratory decree in that the alienation is not binding against the inheritance.
The succession never remains in abeyance.
A person entitled to succeed to the last male holder is entitled to sue for possession on the basis of right to succession to the property.
For the respondent: The principle of res judicata would be immediately attracted if the plaintiffs allege the "same cause of ac tion" and seek the exclusion of the time because the earlier suit was tried on merits by a competent court having jurisdiction and was dismissed holding that 'plaintiff failed to prove that Kishan Singh died on 15th August, 1945.
This finding would be binding between the parties in the subsequent suits as they have been given after recording the evidence and a full trial by, the competent court having jurisdiction.
Therefore, the plaintiff is barred by principles of res judicata from alleging the accrual of right to sue before the filing of the earlier suits as the same would be res judicata.
The plaintiff is estopped from alleging the accrual of same cause of action, therefore, no question of exclusion of time inasmuch as the principle of section 14 of exclusion of time arises only if the cause of action is the same.
Section 14 uses the words "the proceeding is founded upon the same cause of action".
The language of section 14 of the Limitation Act by using the words "same cause of action" makes it very clear that time can be excluded for the same cause of action only if the earlier suit is dismissed be cause of defect of jurisdiction or other cause of a like nature.
On the interpretation of section 14 also the time cannot be excluded for the reason that the earlier suit was dis missed as premature and the new suit was filed on a new cause of action, namely, Alla Singh and his line became extinct on the death of Kishan Singh on 15th of August, 1952 i.e. after the expiry of ' seven years from 15th August, 1945.
Since a new cause of action was alleged after the dismissal of previous suit, section 14 cannot be attracted.
The words "is unable to entertain it" mean that it is not able to admit the matter for consideration on merits i.e. the.
inability is of a formal nature but it does not mean inability to grant relief.
From the decisions one principle is deducible that section 14 of the Limitation Act has to be construed harmoniously with section 11 C.P.C. Section 11 C.P.C. bars the filing of a fresh suit on the same cause of action whereas section 14 of Limitation Act allows time to be.
excluded in the previous litiga tions was "founded on the same cause of action ' '.
Section 12 says that if plaintiff is barred under section 11 C.P.C. to file suit for any cause of action then plaintiff cannot file suit for a such cause of action in any court to which C.P.C. applies.
If both.
section 14 of Limitation Act and principles of res judicata are to operate then, it should be held that to apply section 14 the earlier suit had been dismissed on a technical ground of jurisdiction, or other cause of a similar nature, court is unable to entertain it without going into the merits of the case.
In the present case earlier suits were dismissed because the plaintiff failed to prove the death of Kishan Singh and the extinction of line of Alia.
The words used by the High Court at page 302 line 37 are: "The suit had been rightly dismissed as premature" do not mean that Kishan Singh was alive but it means that plaintiffs have not proved the accrual oj cause of action namely the extinction of line of Alia.
In these circumstances it is submitted that the suits were not dis missed on the ground of defect of jurisdiction or other cause of similar nature.
for which the court was unable to entertain it.
Section 14 of the Limitation Act does not apply.
Plaintiffs have failed to prove the date of death of Kishan Singh and the extinction of line of Alla within 3 years of the filing of the suit.
Suits are therefore time barred.
257 Sections 107 and 108 of the Evidence Act do not help the appellants.
Rule of evidence in section 107 is that it is for the plaintiff to prove the death of a person if he was alive within 30 years and section 108 says that burden of proving that a man was ,dive is on the person who alleges he is alive if it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had even alive.
In this case the plaintiffs appellants have alleged that Kishan Singh was last heard of on 15th August, 1915 and singe then he is not heard of.
The onus is, there fore, on the plaintiff appellant under section 107 of Evidence Act 10 prove as to when Kishan Singh died.
It is; Submit ted that Kishan Singh may have died on any date either before 15th August, 1945 or immediately theereafter.
There is no presumption that he died on the expiry of 7 years from the date he was last heard.
The date of death is thus required to prove by the plaintiff like any other fact.
The suits are, therefore, barred by time and should be dismissed plaintiffs ' failure to prove death of Kishan Singh within three years of the filing of suits.
|
N: Criminal Appeal No. 420 of 1974.
Appeal by Special Leave from the Judgment and Order dated 27 11 74 of the Allahabad High Court in Criminal Appeal No. 2646/73 and Referred No. 95/73.
Frank Anthony, E.C. Agarwala and A. T. M. Sampath; for the Appellants.
O.P. Rana; for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellants, Subhash and Shyam Narain, were convicted by the learned Civil and Sessions Judge, Farrukhabad under section 302 of the Penal Code on the charge that at about 9 a.m. on June 9, 1972 they committed the murder of one Ram Sanehi.
Subhash was sentenced to death and Shyam Narain to imprisonment for life.
The judgment of the trial court having been confirmed in appeal by the High Court of Allahabad, the two accused have filed this appeal by special leave of this Court.
588 The case of the prosecution is briefly as follows: on the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishore and his daughter Kusuma Devi for eating Kharbuzas.
While they were returning from the field at about 9 a.m. the appellants, who were lying in wait near a culvert, suddenly accosted Ram Sanehi.
The Appeallent Subhash pointed the barred of his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran Lal and since he was also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive.
The appellant Shyam Narain was armed with a lathi.
Bal Kishore and Kusuma Devi pleaded with the appellants to spare their father but Shyam Narain asked Subhash not to delay the matter and finish Ram Sanehi quickly.
Subhash thereupon fired three shots from his double barrelled gun, the last of which misfired.
Ram Sanehi fell down, whereupon the appellants dragged him by his legs over a distance of 6 or 7 paces.
Bal Kishore and Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal Mangali Prasad and Jhabbo Singh Thakur reached the place of occurecnce and challenged the appellants.
Before running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender before a court and that Shyam Narain should make his own arrangements.
Ram Sanehi died within about 10 minutes after receiving the injuries.
Bal Kishore first went to his house which is at about a distance of 120 yards from the scene of offence.
At about 12 o 'clock at noon he went to the Kamalgani police station and lodged his First Information Report (exhibit Ka 3).
S.I. Vishwanath Sharma who was posted as a 2nd officer at the police station recorded Bal Kishore 's complaint.
went to the scene of occurrence, prepared the inquest report and handed over the dead body for being sent for post mortem examination to the District Hospital at Farrukhabad which is about 10 miles away form the village of Kandharpur where the incident took place.
S.I Sharma took samples of earth from the place of occurrence an seized a mis fired cartridge which was lying concealed in the folds of the deceased 's Dhoti.
The Fard in that behalf is exhibit Ka 10 and the site plan is exhibit Ka 11.
The appellant Subhash surrendered before the Additional District Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the very day.
The appellant Shyam Narain was arrested at about 2 40 p.m. on the same day under section 122 of the Railway Act for crossing The railines at Fatehgarh.
The appellants denied the charge that they had committed the murder of Ram Sanehi and stated that they were involved in the case due to enmity.
This defence has been rejected both by the Sessions Court and the High Court.
Before referring to the evidence in the case it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirma tion of the capital sentence under section 374 of the Code of Criminal 589 Procedure.
Time and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.
Under these sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court 's appraisal and assessment of that evidence.
From the long line of decisions which have taken this view it would be enough to refer to the decisions in Jumman and ors.
vs The State of Punjab, Ram Shanker Singh & ors.
vs State of West Bengal and Bhupendra Singh vs The State of Punjab.
The High Court has failed to show due regard to this well established position in law.
It did not undertake a full and independent examination of the evidence led in the case and it mainly contented itself with finding out whether the Sessions Court had in any manner erred in reaching the conclusion that the charge of murder levelled against the appellants was established beyond a reasonable doubt.
The High Court is right in saying that the main question in the case was whether Bal Kishore and Kusuma Devi who were examined as eye witnesses were truthful witnesses.
But then it did not subject their evidence to any minute scrutiny.
Impressed overbearingly by the circumstance that the Sessions Court "had the opportunity of observing the demeanour" of the witnesses, the High Court apparenty thought that such an opportunity gave to the Sessions Court 's judgment a mystical weight and authority, even though the learned Sessions Judge had not, in his judgment or while recording the evidence, made any special reference to the demeanour of the witnesses.
The High Court accepted the evidence of Ram Sanehi 's children by observing that there was no material contradiction ill their evidence and that certain statements in the F.I.R. afforded a guarantee that the two witnesses were present when their father was done to death.
We will now proceed to show how several significant circumstances either escaped the attention of the High Court or were not given their due and rightful importance.
First as to the manner in which S.I. Sharma conducted investigation into the case.
The offence took place at about 9 a.m. on June 9 and though the District Hospital at Farrukaabad was just 10 miles away, the dead body was not received at the hospital for nearly 24 hours after the incident had taken place.
The excuse offered by the prosecution that cartman was not willing to take the body at night is utterly flimsy because the Investigating officer could have easily made some alternate arrangement for despatchin the dead body for postmortem examination expeditiously.
With the dead body lying at the scene of offence for nearly 12 hours and thereafter at the police station for another 8 or 9 hours, it was easy enough for the witnesses to mould 590 their statements so as to accord with the nature of injuries.
The lnvestigating Officer did not make any note at all in the General Diary as to which witnesses were examined by him on the date of the occurrence which was obligatory upon him to do under paragraph 44 of the U.P. Police Act.
The time when the investigation was commenced and the time when it was concluded are not mentioned in the case diary.
The time when the Investigating officer reached the village and the time when he returned to the police station are also not noted in the case diary.
S.I. Sharma stated in his evidence that several important facts concerning the investigation were being stated by him in his evidence from memory.
He reached the scene of offence at about 2 30 p.m. but it was not until about 6 p.m. that he inspected the site.
The dead body was not removed from the scene of offence till about 9 p.m. and even that is open to grave doubt because the Investigating officer has admitted in his evidence that he was unable to say as to when the dead body was taken way from the spot and whether it was taken directly to the hospital or was detained somewhere on the way.
He was unable to say whether it was right or wrong that the dead body remained in the village till about 4 'O 'clock on the morning of the 10th.
Forty or fifty persons had gathered at the scene of offence when the Investigating officer arrived but the record of the case does not show that the statement of any of those persons was ever recorded.
In fact even the statement of Kusuma Devi was recorded late at night for which the reason is stated to be that her elder sister Pushpa Devi died of shock on the evening of the 9th after hearing of her father 's murder.
It may be that Pushpa Devi died on the 9th, but apart from the cause of her death, the statement of Kusuma Devi need not have been held up so long.
We are doubtful if the Investigating officer at all knew on the 9th that Pushpa Devi had died.
He has admitted that his knowledge in that behalf was derived from hearsay reports.
The appellant Subhash had surrendered before the Additional District Magistrate, Farrukhabad on the afternoon of the 9th itself while the other appellant Shyam Narain was arrested at Fatehgarh at about 2 40 p.m.
The Investigating officer did not even know of these significant developments, though they had taken place just a few miles away from the scene of investigation.
He says that he learnt of the surrender and the arrest of the appellants on the evening of the 12th.
Mangali Prasad has been examined by the prosecution as an eye witness and his name is mentioned in the F.I.R. as one of the four persons who arrived at the scene of offence even before the appellants had run away.
His statement was recorded 11 days later on June 20.
The F.I.R. mentions expressly that the appellants caught hold of the legs of the deceased and started dragging him.
The Investigating officer has not stated in the Panchnama of the scene of offence whether the ground was soft or hard or sandy which had great relevance on the allegation that the deceased was dragged over a certain distance.
Finally, it is surprising that the Investigating officer did not think it worthwhile to pay a visit to the field where the deceased is alleged to have gone with his children for eating Kharbuzas.
Indeed he stated that he was not in a position to say if there were Kharbuzas at all in the field, when the occurrence took place.
591 The High Court has condoned these lapses on the part of the Investigating officer with the observation that he "appears to have been inexperienced and somewhat negligent".
The Investigating officer has stated in his evidence that he had put in 7 years of service.
It is difficult to understand on what basis the High Court attributed the lapses on his part to mere inexperience.
We will presently indicate the significance of the various lapses and loopholes in investigation but to say, as the High Court has done, that the Investigating Officer was "somewhat negligent" seems to us in the circumstances a grave euphemism.
We will now proceed to deal with the various circumstances which, in our opinion, render it unsafe to accept the prosecution case.
Dr. S.C. Pandiya who performed the post mortem examination has described in his evidence the injuries received by Ram Sanehi.
In all he found 7 injuries on the dead body, out of which injuries 1, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected.
Injury No. 1 is described as a "shot wound" with its entry above the left nipple.
Injury No. 3 is described as multiple rounded abrasions on the left side of the chest.
Injury No. 7 is the wound of exit on the right scapular region, corresponding to injury No. 1.
rnjury No. 2 consists of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple.
Injury No. 5 is a gun shot wound of entry on the back of the left forearm while injury No. 6 is the corresponding wound of exit near the ulnar aspect of the left forearm.
The evidence of Dr. Pandiya and the description of the injuries given by him in the post mortem report tend to show that two different kinds of firearms were used by the assailants of Ram Sanehi.
Injury No. 1 was caused by a bullet and that is clear not only from the description of the injury but from what Dr. Pandiya has stated in his evidence.
He says: "The bullet, which had entered through injury No. 1 went out straight after emerging from injury No. 7".
Injuries Nos. 2 and 5 were caused by pellets.
This shows that whereas injury No. 1 was caused by a firearm in the nature of a rifle, injuries 2 and 5 were caused by an ordinary gun.
The medical evidence thus falsifies the eye witnesses ' account according to which, the appellant Subhash alone was armed with a double barrelled gun, the other appellant Shyam Narain being armed with a lathi.
The objective inference arising from the nature of injuries received by the deceased has a significant impact on the case of the prosecution, which has been overlooked by both the Sessions Court and the High Court.
While we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, according to the doctor, shows that the firing was done from a distance of more than 4 feet.
In the First Information Report Bal Kishore has stated that as soon as he, his father and sister, reached the culvert, Subhash "touching the chest" of Ram Sanehi "with the 592 barrel of his gun" said that he shall not leave him alive; Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then fired three shots in quick succession, one of which mishred.
The trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event indisputably, there would have been tatooing and charring around the injuries.
Bal Kishore has attempted to offer an explanation that what he meant to say in his compaint was that Subhash trained his gun "towards" Ram Sanehi 's chest and not "on" his chest.
This explanation is an after thought and in the circumstances difficult to accept.
Thus in another important respect, the medical evidence falsifies the case of the prose cution.
There is another aspect of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to.
The case of the prosecution is that Ram Sanehi had gone to his Kharbuza field with his son and daughter for eating Kharobuzsas.
There is evidence that they did eat Kharbuzas and almost immediately there after they started back for home.
Within less than 5 minutes, Ram Sanehi met with his deat near the culvert.
The post mortem report shows that Ram Sanehi 's stomach was empty which means that the evidence that he had eaten Kharbuzas just a little time before his death is untrue.
Bal Kishore tried to wriggle out of this situation by saying that Ram Sanehi had eaten just a small slice of Kharbuza.
But even there, Dr. Pandiya has stated that if the entire slice of Kharbuza was eaten by Ram Sanehi, its remains would be found in the stomach provided there was no vomiting after the gun shot injuries.
Since Ram Sanehi had not vomited, his large intestines could not have been found to be empty if the story of his children was true.
This last circumstance may at first sight seem trivial but its importance consists in the fact that the visit of Ram Sanehi, along with his children, to the Kharbuza field for the purpose of eating Kharbuzas is the very genesis of the incident which happened on June 9, 1972.
Coupled with the circumstance that the Investigating officer did not even pay a visit to the Kharbuza field, leave alone making a Panchnama thereof, the conclusion is irresistible that the story that the children had accompanied their father to the Kharbuza field lacks a factual basis.
The other circumstances which render the prosecution case suspect are these (1) Ram Sanehi is alleged to have been drageed over 6 or 7 paces by the appellants but not even an abrasion was found on his back or stomach which could be attributed to dragging.
(2) Thirty or forty persons are alleged to have collected at the sence of occurrence but Bal Kishore was not able to mention the name of even one of them and it is common ground that the Investigating officer did not record the statement of any of them.
(3) Jhabboo Singh, Shyam Lal Brij Bhushan and Mangali Prasad reached the scene of offence even before the appellants had fled away but none from amongst the first three was examined by the prosecution.
Mangali Prasad was examin 593 ed as an eye witness but he has been concurrently disbelieved by the Sessions Court and the High Court.
(4) Though the motive of the offence is alleged to be that in a complaint filed by Pooran Lal against the appellant Subhash, the deceased Ram Sanehi was cited as a witness, Mangali Prasad 's evidence shows that immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered because of the disputes concerning the election to the Pradhanki.
What Bal Kishore told Mangali Prasad immediately after the incident seems more probable because, one Virendrapal had contested that election and the appellant Subhash had defeated him.
When Bal Kishore went to lodge his F.I.R. at the police station he was accompanied by Virendrapal, though an attempt was made to show that Virendrapal was only standing outside the police station and had met Bal Kishore accidently.
(5) The story of Bal Kishore that after the appellant Subhash fired 2 shots he re loaded his gun but the re loaded cartridge misured makes hardly any sense.
Subhash was armed with a double barrelled gun and having fired 2 fatal shots from a close range at his target, it is unlikely that he would re load the gun and that too with only one cartridge.
And if that cartridge misfired, it is impossible to understand how it could be found concealed in the folds of Ram Sanehi 's dhoti.
There is only one other aspect of the matter which remains to be considered and since the High Court has placed great reliance thereon, it is necessary to deal with it.
The F.I.R. which lodged at about 12 O 'clock at noon on the 9th itself mentions that after Ram Sanehi was murdered, the appellant Subhash told his companion Shyam Narain that he himself was going to surrender before a court and that Shyam Narain should make his own arrangement.
In fact, Subhash did surrender in the court of the Additional District Magistrate, Farrukhabad, at about 4 p.m. on the 9th.
What the High Court has over looked is that Subhash did not surrender in connection with the murder of Ram Sanehi but he surrendered along with the 13 or 14 other accused against whom Pooran Lal had filed a complaint.
In so far as Shyam Narain is concerned, the High Court is wrong in saying that he managed somehow to get himself arrested.
The evidence of Constable Virendra Singh shows that Shyam Narain was arrested because he was crossing the railway lines and if he was not caught, he would have been run over by the two trains coming from Kanpur and Farrukhabad.
This was hardly any sensible way of making an "arrangement" for himself, as directed by Subhash.
It is therefore not as if the statement attributed to Subhash in the F.I.R. is corroborated by subsequent events so as to afford a guarantee to Bal Kishore 's presence at the culvert.
We are conscious that the Sessions Court and the High Court have both held that the appellants committed the murder of Ram Sanehi but the weight of the circumstances which we have discussed above is so preponderating that even the concurrent finding cannot be allowed 594 to stand.
In any event, it seems to us impossible to hold that the prosecution has established its case beyond a reasonable doubt.
We therefore allow this appeal, set aside the order of conviction and sentence recorded by the High Court and the Sessions Court and direct that the appellants shall be set at liberty.
M.R. Appeal allowed.
| IN-Abs | Ram Sanehi received two gun shot wounds on his chest, and died within ten minutes.
Two of his children claimed to have witnessed the occurrence.
The dead body was subjected to post mortem only after about 24 hours had elapsed.
The same evening, appellant Subhash surrendered, and appellant Shyam Narain was arrested, though for another offence altogether.
The Sessions Court convicted them under section 302 I.P.C. and sentenced Subhash to death and Shyam Narain to imprisonment for life.
The accused moved the High Court in appeal, while the Sessions Court referred the matter to it under section 374, for confirmation of the death sentence.
The question before this Court was, whether in the case of such references, the High Court was obliged to examine the entire evidence independently.
Allowing the appeal, the Court, ^ HELD: On a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.
The High Court must not only see whether the other order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court 's appraisal and assessment of that evidence.
[589A B] Jumman and Ors.
vs The State of Punjab AIR 1957 S.C. 460; Ram Shanker Singh and Ors.
vs State of West Bengal [1962] Supp. 1 SCR 49 at 59 and Bhupendra Singh vs The State of Punjab ; , followed.
|
Appeal No. 317 of 1976.
Appeal from the Judgment and Order dated the 13th Febru ary, 1976 of the Jammu & Kashmir High Court in Election Petition No. 2 of 1972.
M.N. Phadke, Altaf Ahmed and Veerappa for the Appellant.
Ghulam Quadir Mir (In person) for Respondent No. 1.
Ex parte for Respondents 2 5.
The Judgment of the Court was delivered by KHANNA, J.
During the general elections held in March 1972 five candidates, namely, the appellant and respondents No. 1 to 4, contested tile election for the Jammu & Kashmir State Legislative Assembly from Rajpura constituency.
There was a sixth candidate, namely, Mohamed Abdullah Sheikh, respondent No. 5, but his nomination paper was rejected.
The appellant secured 9,079 votes and was declared elected.
Respondent No. 1 was the nearest rival and he secured 8,248 votes.
Respondents 2 to 4 secured 1,340, 1,126 and 1,217 votes respectively.
2,034 votes were declared invalid at the time of counting.
After the declaration of the result of the election, respondent No. 1 filed election petition out of which the present appeal arises.
Two prayers were made in the election petition: (1) that the election of the appel lant be declared to be void; and (2) that respondent No. 1 be declared to have been duly elected.
The High Court accepted the first prayer and declared the election of the appellant to be void.
The second prayer that respondent No. 1 be declared to have been duly elected was not granted.
The present appeal has been filed by the appellant against the judgment of the High Court insofar as it has declared his election to be void.
Cross objections have been filed by respondent No. 1 and it has been prayed on his behalf that he be declared to have been duly elected.
The election petition was founded on the following three grounds: (1 ) Improper rejection of the nomination paper of respondent No. 5.
(2) Improper rejection of the votes which had been cast in favour of respondent No. 1 (hereinafter referred to as the respondent); and (3) Improper reception of the votes in favour of the appellant on the day of polling at the following polling stations: 1.
Lassipora Polling station No. 49 2.
Nowpora Pain Polling station No. 50 299 3.
Drubgham B Polling station No. 24 4.
Drubgham A Polling station No. 23 4.
Drugbham A Polling station No.23 5.
Aliaipora Polling station No. 51 6.
Chandgham Polling station No. 46 7.
Arihal Polling station No. 35, and 8.
Tikan Batapora Polling station No. 26.
According to the case of the respondent as set up in the election petition, the result of the election was materially affected because of the improper rejection at the time of counting of the votes which had been cast in his favour and by the improper reception of the votes in favour of the appellant on the day of polling.
Giving particulars in respect of the third ground, namely, that there was improper reception of votes in favour of the appellant on the day of polling, the respondent stated that the total number of votes at Lassipura (polling station No. 49) was 824.
All those votes were shown to have ben polled, although 162 voters registered in that area did not cast their votes.
The figure of 162 included 16 persons who were dead before the date of polling.
Electoral numbers of those 162 voters, including 16 dead persons, were also mentioned in the peti tion.
The votes of 162 persons were thus stated to have been improperly received.
Similar allegations were made in respect of Nowpora Pain (polling station No. 50), Drubgham B (polling station No. 24), Drubgham A (polling station No. 23), Alaipora (polling station No. 51), Chandgam (polling station.
No. 46), Arihal (polling station No. 35) and Tikan Batapora (polling station No. 26).
We may add at this stage that the first ground, namely, that relating to the improper rejection of the nomination paper of respondent No. 5, was not pressed at the trial of the election petition, and as such no 1onger survives.
The election petition was resisted by the appellant and he denied the various allegations made by the respondent.
He also pleaded that the allegations in the election peti tion were vague, indefinite and uncertain.
Objection was also raised regarding the maintainability of the petition on the grounds that it had not been properly verified and there war misjoinder of parties.
The petition was initially heard by Wasi ud Din J.
It thereafter came up for hearing before Jalal ud Din J.
Ultimately, it came up for hearing before Mufti Baha ud Din Farooqi J. who finally decided the petition and gave the judgment under appeal.
During the pendency of the petition, orders were made on three occasions for inspection of the ballot papers.
The first order was made by Wasi ud Din J. on August 13, 1973.
The learned Judge, considered the prayer for inspection of ballot papers under three heads: "(1) Request for inspection of ballot papers which were rejected at the time of counting; (2) Request for inspection a ballot paper account (Form No. 16) in respect of the var ious polling stations and of the ballot papers relevant thereto; 300 (3) Request for inspection of marked copies of electoral rolls at polling stations Lassipora, Drubgham A & B, Achan, Chandgham, Afthal, Nowpora Pain, Tikam Batopora, Alaipo ra.
" Prayer under the first and third heads was rejected but that under the second head was allowed to the extent of the inspection of form No. 16 in respect of Lassipora, Nowpora Pain, Drubgham B, Drubgham A, Alaipora, Chandgham, Arihal and Tikan Batopora polling stations.
Inspection of a few ballot papers, of which the numbers were specified, relating to some of the polling stations was allowed.
On November 2, 1973 the learned Judge amplified his previous orders in these words: "My order as it stands should be read to Clearly signify which I am amplifying here also that the sorting of the ballot papers will be done by the Deputy Registrar but in the presence of the learned counsel for both the parties.
The learned counsel for the parties will not be allowed to handle the ballot papers until they are sorted out by the Deputy Registrar and after this is done, the respective learned counsel for the parties can handle and inspect the ballot papers.
" On June 13, 1974 the learned Judge, on an application made by the respondent, allowed inspection of ballot papers of two more polling stations, viz., Chandgham and Alaipora.
The respondent also made prayer for leave to inspect the ballot papers of other polling stations, but the prayer in that behalf was rejected.
The following directions were further issued by the learned Judge: "The petitioner has also made a prayer that the Deputy Registrar be given directions to ascertain if the 34 series of two inspected polling stations Nos. 24 and 50 are not mixed in the fourth trunk which has been produced.
The Deputy Registrar will of course see to this and such other discrepancies which may come to his notice, he will make a separate note and he will also make a note on the envelope if he found the discrepancy." After Wasi ud Din J. relinquished his office, the case was assigned to Jalal ud Din J.
An application was then made on July 29, 1974 by the respondent seeking permission to in spect ballot papers and other documents pertaining to the various polling stations, This application was disposed of by Jalal ud Din J. as per order dated January 6, 1975 in these words: "I, therefore, allow the application of the petitioner for inspection of ballot papers in respect of four veiling stations, namely, 26 Tikan Batapora from serial No. 015051 to 15700, 35 Arihal A from serial No. 020901 to 021550, 49 Lassipora from serial No. 031051 to 031900, 23 Drubgham from serial No. 013201 to 013800 and also the counterfoils of 15 Nowpora Pain, 24 Drubgham B. 46 Chandgham and 51 Alaipora, the polling stations of which the ballot papers have already been inspected by the petitioner.
1, however, do not accede to the request of the petitioner to inspect electoral roll and 301 counterfoils and from 16 of the entire con stituency.
The inspection as ordered will be held by and in presence of the counsel for the parties.
But the Deputy Registrar will see that neither the candidate nor their counsel shall, handle the record.
The Deputy Registrar will further make a separate note and record of the discrepancies found, if any.
The inspection will be held during vacation on a date to be fixed by the Deputy Registrar." In the judgment under appeal the learned Judge held that 59 votes validly polled in favour of the respondent were im properly rejected at the time of counting.
It was further found that 901 votes, including 28 votes of dead voters, were improperly polled.
Out of 901 votes, 351 votes were found to have been polled in favour of the appellant.
De tails of those 351 votes were as under: Alaipora polling station No. 51 200 Arihal polling station No. 35 51 Takin Batapora P.S. No. 26 100 Regarding the remaining 550 votes, the learned Judge found that the evidence was not clear, and observed as under: "The evidence, however, is not clear as regards the fate of the remaining 550 such votes.
But having regard to overall circum stances of the case it will not be unreasona ble to conclude that respondent No. 1 was the greatest beneficiary of these 550 votes al though the precise number by which he was benefited out of those votes may not be easily ascertainable.
To these circumstances may be added the circumstance that 59 votes validly polled in favour of the petitioner were im properly rejected at the time of counting, as held by me before.
The cumulative effect of these circumstances is that the respondent No. 1 was able to get an undue advantage of no less magnitude and may be, even greater than that reflected in his declared success over the petitioner by 831 votes.
In this view it must be held that the result of the election, insofar as respondent No. 1 is concerned, was materially affected by the improper rejection of votes in favour of the petitioner at the time of counting and the improper reception of votes on the day of poll and that his election must be declared to be void.
But that should not entitle the petitioner to a declaration that he was duly elected as the total number of the votes improperly received in favour of respondent No. 1 on the date of poll could not be exactly worked out.
The prayer for such de claration must be rejected.
" In the result, the election of the appellant was declared to be void.
The prayer of the respondent for a declaration that he be declared to have been elected was rejected.
When this appeal came up for hearing before this Court on September 3, 1976, we passed an order wherein we referred to the finding of the High Court that it cannot be said as to who was the beneficiary of the 550 votes which were found to have been improperly polled.
We thereafter stated in that order: 302 "In our opinion, it is necessary to find out as a result of further inspection as to how many d those 550 votes were in favour of the appellant, and how many, in favour of respondent No. 1 and the other contesting candidates.
For this purpose, we depute the Registrar (Judicial) of this Court to make an inspection in the presence of the parties and their counsel and submit a report to this Court within six weeks from today.
The Regis trar may also have to locate the 55 ballot papers referred to in the judgment of the High Court at pages 31 51 of the cyclostyled judg ment.
He may also, if necessary, refer to the reports of the Deputy Registrar of the High Court.
The appeal should be put up for further hearing as soon as the report is ready.
" The Registrar of this Court thereafter submitted his report dated September 15, 1976.
The Registrar dealt with most of the matters but in respect of some of the matters he sought further directions.
Necessary directions were thereafter issued by this Court on September 17, 1976.
As a result of those directions, the Registrar had to scrutinise 571 ballot papers in all instead of 550 votes.
The final report of the Registrar is dated September 24, 1976.
The result of the reports of the Registrar taken along with the findings of the High Court may be set out: (1) Votes found by the High Court to have been improperly received in favour of the appellant 351 (2) Votes which were found to have been improperly received in favour of the appellant as per the first report of the Registrar 286 (3) Votes which were found to have been improperly received in favour of the appellant as per the second report of Registrar.
141 Total 778 (4) Total number of votes polled by the appellant as per the results of the election 9,079 (5) Valid votes polled by the appellant 9,079 778=8301 (6) Votes which were found to have been improperly received in favour of the respondent as per the first report 25 (7) Votes which were found to have been improperly received in favour of the respondent as per the second report 19 Total 44 (8) Total votes polled by the respondent as per the result of the election 8,248 (9) Votes validly polled in favour of the respondent which were found by the High Court to have been improperly rejected at the time of counting 59 303 (10) Total number of votes thus polled by the respondent 8,248+59=8,307 (11) Valid votes polled by the respondent 8,307 44=8,263 (12) Excess of votes validity polled in favour of the appellant over those of of the respondent.
38 Some votes were found by the Registrar to have been im properly received in favour of respondents 2 to 4, but it is not necessary to set out those votes.
In appeal before us Mr. Phadke on behalf of the appel lant has urged that in view of the final picture as it emerges from the reports of the Registrar, the appeal should be allowed and the election petition be dismissed as the appellant secured more valid votes than the respondent.
The above stand has been controverted by the respond ent, who has argued the case in person.
At an earlier hearing we requested Mr. Gambhir to argue the case amicus curiae in view of the fact that the respondent was not represented by counsel.
The respondent thereafter stated that he Would like the matter to be argued by counsel of his own choice.
Mr. Shaukat Hussain thereafter appeared on behalf of the respondent.
At the final hearing the respond ent, as mentioned above, chose to argue the case in person.
Perusal of the election petition filed by the respondent shows that apart from the ground not subsequently pressed of the improper rejection of the nomination paper of respondent No. 5, the only ground on which the respondent challenged.
the election of the appellant was the improper reception of votes in favour of the appellant and the improper rejection of the votes cast in favour of the respondent.
This ground is based upon sub clause (iii) of clause (d) of sub section (1) of section 108 of the Jammu and Kashmir Representation of the People Act, 1957 (Act 4 of 1957) corresponding to sub clause (iii) of clause (d) of sub section (1) of section 100 of the Representation of the People, Act 1951 fact 43 of 1951).
According to the above provision, if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote of the reception of any vote which is void, the High Court shall declare the election of the returned candidate to be void.
Keeping the above provision in view, we may now turn to the facts of the present case.
The High Court found that 351 votes had been improperly received in favour of the appellant.
The High Court further found that 59 votes which had been validly polled i.n favour of the, respondent were improperly reject ed at the time of counting.
In addition to.
that, the High Court found that 550 votes had been improperly received, but it was not possible on the material on record to find out as to who was the beneficiary of those votes.
The High Court all the same was inclined to believe that the appellant must have been the major beneficiary of those 550 votes.
This necessarily involved an element of surmise and conjecture.
To find out the exact position, we directed the Registrar of this Court to 304 scrutinise the 550 ballot papers in question and to make a report as to how many of those votes were cast in favour of the appellant and how many in favour of the respondent and the other candidates.
The Registrar thereafter submitted reports and we have already set out the outcome of those reports taken along with the findings of the High Court.
It would appear from the figures set out above that, exclud ing all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 votes which were found by the High Court to have been improperly rejected at that time of counting, the net result still is that the appellant has a lead of 38 votes over the respondent.
There is, therefore, no escape from the conclusion that the election of tile appellant should be upheld.
In an election petition founded upon the ground that the result of the election was materially af fected by the improper reception or rejection of votes, the court has first to decide whether certain ballot papers were improperly received or were improperly rejected.
Once ,that controversy is resolved, the rest is purely a matter of arithmetical calculation.
If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper reception or improper rejection of votes.
Improper reception or improper rejec tion of votes can result in invalidating an election only if such improper reception or improper rejection materially affects the result of the election.
In the course of his arguments, the respondent has submitted that a number of improprieties were committed in the conduct of election and therefore the election of the appellant be declared to be void.
Although it does appear from the material on record to which our attention was invited by the respondent that irregularities were committed in the conduct of the election, the respondent cannot derive any benefit on that account.
As already mentioned, the respondent sought to challenge the election of the appellant only on the ground of improper reception and improper rejection of certain votes.
The election of the appellant was not challenged on the ground of any irregular ity or non compliance with the provisions of the Constitu tion or of the Representation of the People Act or of any rules or orders made thereunder.
Nor was the election of the appellant assailed on the ground of being vitiated by corrupt practice.
As it is not permissible to widen the scope of an election petition beyond the grounds actually set up in the election petition, the respondent cannot seek relief on grounds which were not taken by him in the elec tion petition.
It has also been urged by the respondent that the number of votes which were improperly received was larger than that found by the High Court.
Nothing cogent has, however, been brought to our notice in support of the above submission to induce us to interfere with the finding of the High Court in, this respect.
Lastly, the respondent submits that 153 ballot papers of Lassipora polling station cast in favour of the appellant should be rejected as 305 they bore the initials and not the full signatures of the presiding officer.
Our attention in this respect is invit ed to clause (h) of rule 56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965, according to which the returning officer at the time of counting shall reject a ballot paper if it does not bear both the mark and the signatures which it should have borne under the provisions of sub rule (1) of rule 3 8.
According to sub rule (1 ) of rule 3 8, every ballot paper shall before issue to elector, be stamped by such distinguishing mark as the Election Commission may direct, and be signed in full on its back by the presiding officer.
It is not disputed that the ballot papers in question bore the distinguishing mark.
The only contention of the respondent, as already mentioned, is that the ballot papers in question bore the initials and not the full signatures of the presiding officer.
In this respect we find that no express ground on that score was set up by the respondent in the election petition.
This apart, we that the matter is covered by the first proviso to sub rule (2) of rule 56 which reads as under; "Provided that where the returning offi cer 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.
" The above proviso which is based upon the principle that a vote validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returning officer is satisfied that any defect mentioned in clause (h) has been caused by the 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.
The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full signatures of the presiding officer would go to show that the returning offi cer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer: There can indeed be hardly any doubt on the point that the defect referred to by the respondent occurred because of the mistake or failure of the presiding officer.
We, there fore, see no cogent ground to exclude from consideration 153 ballot papers polled in favour of the appellant.
Before we conclude, we may observe that some other con tentions were also advanced on behalf of the appellant.
In view of the fact that the appeal in any case has to be allowed because of the arithmetical calculations referred to above, it is not necessary to go into those contentions.
As a result of the above, we accept the appeal, set aside the judgment of ,the High Court and dismiss the election petition.
Crossobjections filed by the respondent are dismissed.
Looking to all the facts, we leave the parties to bear their own costs throughout.
P.B.R. Appeal al lowed.
| IN-Abs | 100(1) (d)(iii) of the Jammu & Kashmir Representation of the People Act, 1957 provides that if the High Court is of opinion that the result of the election in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, the High Court shall declare the election of the returned candidates to be void.
The appellant was declared elected to the State Assembly in the General Elections.
In his election petition the respondent, a defeated candidate, contended that improper rejection at the time of counting of votes cast in his favour and improper reception of votes at the time of poll ing in favour of the appellant had materially affected the result and that therefore the appellant 's election should be declared void.
The High Court held that certain votes had been improp erly received in favour of the appellant, certain votes validly polled in favour of the respondent were improperly rejected at the time of counting; and in respect of 550 votes which were found to have been improperly received, the High Court held that the appellant was the greatest benefi ciary of those votes although the precise number by which he was benefited could not be easily ascertained.
In appeal, this Court directed the Registrar to scruti nise the 550 ballot papers to find out as to how many of those votes were cast in favour of the appellant and the other candidates.
The result of the investigation showed that the appellant had a lead of 38 votes over the respond ent.
Allowing the appeal HELD: There is no escape from the conclusion that the election of the appellant should be upheld.
[303H] (1) In an election petition founded upon the ground that the result of the election was materially affected by the improper reception or rejection of votes, the Court has first to decide whether certain ballot papers were improperly received or were improperly rejected.
Once that controversy is resolved, the rest is purely a matter of arithmetical calculation.
If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper reception or improper rejection of votes.
Improper reception or improper rejec tion of votes can result in invalidating the election only if such improper reception or improper rejection materially affects the result of the election.
[303H] In the instant case, even after excluding all the votes found to have been improperly received by the appellant and also giving credit to the respondent for the votes found by the High Court to have been improperly rejected at the time of counting, the net result still was that the appellant had a lead over the respondent.
(2) As it is not permissible to widen the scope of an election petition, the respondent could not seek relief on grounds which were not taken by him in the election peti tion.
The respondent could not derive any benefit on the irregularities committed in the conduct of election.
The election was not challenged on the ground of any irregulari ty or non compliance with the provisions of the Constitution or of the Representation of the People Act nor was the election assailed on the ground of corrupt practice.
[304D & C] 298 (3) The contention of the respondent that if the ballot papers which bore the initials and not the full signatures of the presiding officer are rejected, the appellant 's election should be declared void, is without force.
The ballot papers bore the distinguishing marks as required by r. 38(1).
The fact that the returning officer did not reject the ballot papers on the ground that they bore only the initials and not the full signatures of the presiding officer showed that the returning officer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer.
There can be no doubt that the mistake occurred because of the mistake or failure of the presiding officer.
The first proviso to r. 56(2) of the Rules provides that where the returning officer is satisfied that any defect mentioned in cl.
(g) or cl.
(h) of this Rule 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.
[305B C]
|
Appeal No. 159 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 27th day of June 1952 of the Calcutta High Court in Matter No. 214 of 1951 A reference under section 57 of the Indian Stamp Act.
M. C. Setalvad, Attorney General of India (B. Sen and P. K. Bose, with him) for the appellant.
section Chaudhury, (section N. Mukherjee, B. N. Ghosh and A. K. Basu, with him) for the respondent.
October 4.
VENKATARAMA AYYAR J.
This appeal raises a question under section 5 of the Indian Stamp Act II of 1899.
The respondent was, at the material time, the Managing Director of Messrs Bird and Co. Ltd., and of Messrs F. W. Heilgers and Co., Ltd., which were acting as Managing Agents of several Companies registered under the Indian Companies Act.
He was also a Director of a number of other Companies, and had on occasions acted as liquidator of some Com 107 844 panies, as executor or administrator of estates of deceased persons and as trustees of various estates.
On 4 7 1949 he applied to the Collector of Calcutta under section 31 of the Stamp Act for adjudication of duty payable on a power of attorney, marked as Exhibit A in the proceedings, which he proposed to execute.
By that power, he empowered Messrs Douglas Chisholm Fairbairn and John James Brims Sutherland jointly and severally to act for him in his individual capacity and also as executor, administrator, trustee, managing agent, liquidator and all other capacities.
The Collector referred the matter under section 56(2) of the Act to the decision of the Chief Controlling Revenue Authority, who eventually referred it under section 57 to the High Court of Calcutta stating his own opinion that the stamp duty was payable on the power "for as many respective capacities as the principal executes the power".
The reference was heard by a Bench consisting of the Chief Justice, Das, J. and section R. Das Gupta, J., who differed in their opinion.
The learned Chief Justice with whom Das, J. agreed, held that the different capacities of the executant did not constitute distinct matters for purposes of section 5 of the Act, and that the proper duty payable on the instrument was Rs. 10 under article 48(d) of Schedule 1 A of the Stamp Act as amended by section 13 of Bengal Act III of 1922.
section R. Das Gupta, J. was of the opinion that the different capacities of the executant were distinct matters for the purposes of section 5, and that the instrument was chargeable with the aggregate amount of duty payable if separate instruments were executed in respect of each of those capacities.
In the result, the question was answered in accordance with the opinion of the majority in favour of the respondent.
Against that decision, the Board of Revenue, West Bengal has preferred this appeal by special leave, and contends that the instrument in question comprises distinct matters, and must be stamped in accordance with section 5.
The statutory provisions bearing on the question are sections 3 to 6 of the Act.
Section 3 is the charg 845 ing section, and it enacts that subject to certain exemptions, every instrument mentioned in the Schedule to the Act shall be chargeable with the duty of the amount indicated therein as the proper duty therefor.
Section 4 lays down that when in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, only one of them called the principal instrument is chargeable with the duty mentioned in Schedule 1, and that the other instruments are chargeable each with a duty of one rupee.
Section 5 enacts that any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the Act.
Section 6, so far as is material, runs as follows: "Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties".
The point for decision in this appeal is as to the meaning to be given to the words "distinct matters" in section 5.
The contention of the respondent which found favour with the majority of the learned Judges in the court below is that the word "matters" in section 5 is synonymous with the word "description" occurring in section 6, and that they both refer to the several categories of instruments which are set out in the Schedule.
The argument in support of this con tention is this: Section 5 lays down that the duty payable when the instrument comprises or relates to distinct matters is the aggregate of what would be payable on separate instruments relating to each of these matters.
An instrument would be chargeable under section 3 only if it fell within one of the categories mentioned in the Schedule.
Therefore, what is contemplated by section 5 is a combination in one document of different categories of instruments such as sale and mortgage, sale and lease or mortgage and lease and the like, But when the category is one 846 and the same, then section 5 has no application, and as, in the present case, the instrument in question is a power of attorney, it would fall under article 48 (a) in whatever capacity it was executed, and there being only one category, there are no distinct matters within section 5.
We are unable to accept the contention that the word "matter" in section 5 was intended to convey the same meaning as the word "description" in section 6.
In its popular sense, the expression "distinct matters" would connote something different from distinct "categories".
Two transactions might be of the same description, but all the same, they might be distinct.
If A sells Black acre to X and mortgages White acre to Y, the transactions fall under different categories, and they are also distinct matters.
But if A mortgages Black acre to X and mortgages Whiteacre to Y, the two transactions fall under the same category, but they would certainly be distinct matters.
If the intention of the legislature was that the expression 'distinct matters ' in section 5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so.
When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression "distinct mat ters" in section 5 and "descriptions" in section 6 have different connotations.
It is urged against this conclusion that if the word "matters" in section 5 is construed as meaning anything other than "categories" or in the phraseology of section 6, "descriptions" mentioned in the Schedule, then there could be no conflict between the two sections, and the clause in section 6 that it is "subject to the provision of the last preceding section" would be meaningless and useless.
We see no force in this contention.
Though the topics covered by sections 5 and 6 are different, it is not difficult to conceive of instruments which might raise questions falling to be determined under both the sections.
Thus, if a part 847 nership carried on by members of a family is wound up and the deed of dissolution effects also a partition of the family properties as in Secretary, Board of Revenue vs Alagappa Chettiar(1), the instrument can be viewed both as a deed of dissolution and a deed of partition, and under section 6, the duty payable will be the higher duty as on an instrument of partition.
But supposing by that very deed one of the members creates a charge or mortgage over the properties allotted to his share in favour of another member for moneys borrowed by him for his own purposes, that would be a distinct matter which would attract section 5.
Now, but for the saving clause, a contention might be advanced that sections 5 and 6 are mutually exclusive, and as the in strument falls within section 6, the only duty payable thereon is as on an instrument of partition and no more.
The purpose of the clause in section 6 is to repel any such contention.
Considerable stress was laid by Mr. Chaudhury on the scheme of the Act as embodied in sections 3 to 6 as strongly supporting the view that 'matters ' in section 5 meant the same thing as 'description ' in section 6.
He argued that under section 3 the duty was laid not on all instruments but on those which were of the descriptions mentioned in the Schedule, that section 4 enacted a special provision with reference to three of the categories mentioned in the Schedule, sale (conveyance), mortgage and settlement, that if they were completed in more than one instrument, not all of them were liable for the duty specified in the Schedule, but only one of them called the principal document, and that section 6 provided that when the instrument fell under two or more of the categories in the Schedule, the duty payable was the highest payable on any one of them, that thus the categories in the schedule were the pivot on which the entire scheme revolved, and that in construing the section in the light of that scheme, the expression "distinct matter" must in the setting be construed as distinct categories.
To construe "distinct matters" as (1) I.L.R. 848 something different from "distinct categories" would be, it was argued, to introduce a concept foreign to the scheme of the enactment.
The error in this argument lies in thinking that the object and scope of sections 4 to 6 are the same, which in fact they are not.
Section 4 deals with a single transaction completed in several instruments, and section 6 with a single transaction which might be viewed as falling under more than one category, whereas section 5 applies only when the instrument comprises more than one transaction, and it is immaterial for this purpose whether those transactions are of the same category or of different categories.
The topics dealt with in the three sections being thus different, no useful purpose will be served by referring to section 4 or section 6 for determining the scope of section 5 or for construing its terms.
It is not without significance that the legislature has used three different words in relation to the three sections, 'transaction ' in section 4, matter ' in section 5, and 'description ' in section 6.
In support of his contention that 'distinct matters ' in section 5 meant only different categories, learned counsel for the respondent relied on certain observations in Ansell vs Inland Revenue Commissioners(1).
There, the instrument under consideration was a deed of settlement which comprised certain Government securities as also other investments, and under the Stamp Act, 1891, it was chargeable with a single duty ad valorem on the value of all the properties settled.
By section 74, sub section (1) of the Finance Act, 1910, voluntary dispositions were chargeable with a higher stamp duty as on a conveyance; but Government securities were, exempted from the operation of the section.
The question that arose for decision was whether a separate duty was payable in respect of Government stocks under the provisions of the Stamp Act, 1891 over and above what was paid under section 74, sub section (1) of the Finance Act, 1910 on account of other investments.
Answering it in the affirmative, Rowlatt, J. observed: (1) , 849 "If two different classes of property are being transferred by the same words of assignment in the same document, and those two different classes of property in the same document are different from the point of view of the Stamp Act and taxation, it seems to me in common sense that they must be distinct matters".
The respondent wants to read these observations as meaning that where the matters are not dealt with separately for purposes of stamp duty, then they are not distinct matters.
This, however, does not follow.
The case before the court was one in which the instrument dealt with properties which fell under ' two categories, and the decision was that they were distinct matters.
There is nothing either in the deci sion or the observations quoted above to support the contention of the respondent that if the instrument comprises matters falling within the same description, it is not to be construed as comprising distinct matters.
Reliance was also placed on the observations in Reversionary Interest Society vs Commissioners of Inland Revenue(1), in which it was held that a statutory declaration for the purpose of carrying through a transaction was liable for a single stamp duty.
There, the declaration was made by husband and wife, and in view of the purpose for which it had to be used, it was construed as one declaration.
This is a decision on the facts, and is not of much assistance.
In the view, then, that section 5 would apply even when the instrument comprises matters of the same description, the point for decision is whether the instrument proposed to be executed by the respondent is a single power of attorney or a combination of several of them.
The contention of Mr. Chaudhury is that when the executant of one instrument confers on the attorney a general authority to act for him in whatever matters he could act, then there is, in fact, only a single delegation, and that therefore the instrument must be construed as a single power of attorney liable for a single duty under article 48(d) (1) 850 of the Schedule.
The contention of the appellant, on the other hand, is that though the instrument is executed by one person, if he fills several capacities and the authority conferred is general, there would be distinct delegations in respect of each of those capacities, and that the instrument should bear the aggregate of stamp duty payable in respect of each of such capacities.
The question is which of these two contentions is correct.
We are unable to agree with the respondent 'that when a person executes a power of attorney in respect of all the matters in which he could act, it should be held, as a matter of law and without regard to the contents of the instrument, to comprise a single matter.
Whether it relates to a single matter or to distinct matters will, in our opinion, depend on a number of factors such as who are parties thereto, which is the subject matter on which it operates and so forth.
Thus, if A executes one power authorising X to manage one estate and Y to manage another estate, there would really be two distinct matters, though there is only one instrument executed by one person.
But if both X and Y are constituted attorneys to act jointly and severally in respect of both the estates, then there is only one delegation and one matter, and that is specifically provided for in article 48(d).
Conversely, if a number of persons join in executing one instrument, and there is community of interest between them in the subject matter comprised therein, it will be chargeable with a single duty.
This was held in Davis vs Williams(1), Bowen vs Ashley(1), Good son vs Forbes(1) and other cases.
But if the interests of the executants are separate, the instrument must be construed as comprising distinct matters.
Vide Freeman vs Commissioners of Inland Revenue(1).
Applying the same principle to powers of attorney, it was held in Allen vs Morrison(1) that when members of a mutual insurance club executed Single power, it related to one matter , Lord Tenterdon, C. J. observing that "there was certainly a community of (1) ; (2) ; , 469.
(3) ; , 1000 1001.
(4) [1870 71] L.R. 6 Exch.
(5) ; , 1153.
purpose actuating all the members of this club".
In Reference under Stamp Act, section 46(1), a power of attorney executed by thirty six persons in relation to a fund in which they were jointly interested was held to comprise a single matter.
A similar decision was given in Reference under Stamp Act, section 46(2) where a power of attorney was executed by ten mirasdars empowering the collection of communal income appurtenant to their mirasi rights.
On the other hand, where several donors having separate interests execute a single power of attorney with reference to their respective properties as, for example, when A constitutes X as attorney for management of his estate Black acre and B constitutes the same person as attorney for the management of his estate White acre, then the instrument must be held to comprise distinct matters.
It was so decided in Reference under Stamp Act, 8.
46(3).
Thus, the question whether a power of attorney relates to distinct matters is one that will have to be decided on a consideration of the terms of the instrument and the nature and the extent of the authority conferred thereby.
It may be mentioned that questions of this character cannot now arise in England in view of the special provision contained in the Finance Act, 1927 (17 & 18, Geo. 5, Ch. 10), section 56 which runs as follows: "No instrument chargeable with stamp duty under the heading Letter or Power of Attorney and Commission, Factory, Mandate, or other instrument in the nature thereof ' in the First Schedule to the Stamp Act, 1891, shall be charged with duty more than once by reason only that more persons than one are named in the instrument as donors or donees (whether jointly or severally or otherwise), of the powers thereby conferred or that those powers relate to more than one matter".
There is no provision in the statute law of this country similar to the above, and it is significant that it assumes that a power of attorney might consist of distinct matters by reason of the fact that there are (1) Mad.
(2) Mad.
(3) 108 852 several donors or donees mentioned in it, or that it relates to more than one matter.
Now, considering Exhibit A in the light of the above discussion, the point for determination is whether it can be said to comprise distinct matters by reason of the fact that the respondent has executed it in different capacities.
In this form, the question is bereft of authority, and falls to be decided on well recognised principles applicable to the matter.
It is, as has been stated above, settled law that when two persons join in executing a power of attorney, whe ther it comprises distinct matters or not will depend on whether the interests of the executants in the subject matter of the power are separate or joint.
Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise distinct matters.
That will be in consonance with the generally accepted notion of what are distinct matters, and that certainly was the view which the respondent himself took of the matter when he expressly recited in the power that he executed it both in his individual capacity and in his other capacities.
But it is contended by Mr. Chaudhury that the fact that the respondent filled several capacities would not affect the character of the instrument as relating to a single matter, as the delegation thereunder extended to whatever the respondent could do, and that it would be immaterial that be held some properties in his individual capacity and some others as trustee or executor, as the legal title to all of them would vest in him equally in the latter as well as in the former capacity.
We are concerned, he argued, not with the source from which the title flowed but with the reservoir in which it is now contained.
This is to attach more importance to the form of the matter than to its substance.
When a person is appointed trustee, the legal title to the estate does, under the English law, undoubtedly vest in him; but then he holds it for the benefit of the cestui que trust in whom the equitable estate vests.
Under the 853 Indian law, it is well established that there can be trusts and fiduciary relations in the nature of trust even without there being a vesting of the legal estate in the trustee as in the case of mutts and temples.
Vide Vidya Varuthi vs Balusami(1).
In such cases, the legal title is vested in the institution, the mahant or shebait being the manager thereof, and any delegation of authority by him can only be on behalf of the institution which he represents.
When a person possesses both a personal capacity and a representa tive capacity, such as trustee, and there is a delegation" of power by him in both those capacities, the position in law is exactly the same as if different persons join in executing a power in respect of matters which are unrelated.
There being no community of interest between the personal estate belonging to the executant and the trust estate vested in him, they must be held to be distinct matters for purposes of section 5.
The position is the same when a person is executor or administrator, because in that capacity he represents the estate of the deceased, whose persona is deemed to continue in him for purposes of administration.
It was finally contended by Mr. Chaudhury that if every capacity of the donor is to be considered as a distinct matter, we should have to hold that there are distinct matters not only with reference to the capacity of the executant as trustee, executor and so forth, but in respect of every transaction entered into by him in his personal capacity.
Thus, it is argued, if he confers on his attorney authority to sell one property, to mortgage another and to lease a third, he would have acted in three different capacities as vendor, mortgagor and lessor, and the instrument will have to be stamped as relating to three distinct matters.
This, he contended, would destroy the very basis of a general power of attorney.
The fallacy in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of that capacity.
When an executor, for example, sells one property for discharging the debts of the testator and (1) [1921] 48 I.A. 302. 854 mortgages another for raising funds for carrying on his business, he no doubt acts in two different transactions but in respect of both of them, he functions only in his capacity as executor.
In our opinion, there is no substance in this contention.
In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Exhibit A, comprises distinct matters in respect of the several capacities of the respondent mentioned therein, and that the view taken by the revenue authorities and supported by section R. Das Gupta, J. is correct.
This appeal will accordingly be allowed.
The respondent will pay the costs of the appellant here and in the court below.
BHAGWATI J.
I regret I am unable to agree with the conclusion reached in the Judgment just delivered.
While agreeing in the main with the construction put upon sections 4, 5 and 6 of the Act and the connotation of the words "distinct matters" used in section 5, 1 am of the view that the question still survives whether the instrument in question is a single power of attorney or a combination of several of them.
The argument which has impressed my Bro ther Judges forming the majority of the Bench is that though the instrument is executed by one individual, if he fills several capacities and the authority conferred is general, there would be distinct delegations in respect of each of those capacities and the instrument should bear the aggregate of stamp duty payable in respect of each of such capacities.
With the greatest respect I am unable to accede to that argument.
I agree that the question whether a power of attorney relates to distinct matters is one that will have to be decided on the consideration of the terms of 'the instrument and the nature and the extent of the authority, conferred thereby.
The fact, however, that the donor of the power of attorney executes it in different capacities is not sufficient in my opinion to constitute the instrument one comprising distinct matters and thus requiring to be 855 stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the meaning of section 5.
The transaction is a single transaction whereby the donor constitutes the donees jointly and severally his attorneys for him and in his name and on his behalf to act for him in his individual capacity and also in his capacity as managing director, director, managing agent, agent, secretary or liquidator of any company in which he is or may at any time, thereafter be in terested in any such capacity as aforesaid and also as executor, administrator, trustee or in any capacity whatsoever as occasion shall require.
No doubt, different capacities enjoyed by the donor are combined herein but that does not constitute him different individuals thus bringing this instrument within the mischief of section 5.
The executants of the instrument are not several individuals but is only one individual, the donor himself, though he enjoys different capacities.
These different capacities have a bearing on the nature and extent of the powers which he could exercise as such.
In his own individual capacity he could exercise all the powers as the full owner qua whatever right, title and interest be enjoys in the property, whether it be an absolute interest or a limited one.
he may be the absolute owner of the property or may have a life interest therein, he may have a mortgagee 's interest or a lessees interest therein, he may be a dominant owner of a tenement or may be a mere licensee; but whatever interest be enjoys in that property will be the subject matter of the power which he executes in favour of the donee.
He may, apart from this individual interest which he enjoys therein, be a trustee of certain property and be may also enjoy the several interests described above in his capacity as such trustee.
It may be that, in his turn he may be accountable to the beneficiaries for the due administration of the affairs of the trust but that does not mean that he, as trustee, is not entitled to exercise all these powers, the trust property having vested in him, and he being therefore in a position to exercise 856 all these powers in relation thereto.
The same would be the position if he were an executor or an administrator of an estate, in possession of the estate of the deceased as such.
The property of the deceased would vest in him though his powers of dealing with the same would be circumscribed either by the provisions of the testamentary instrument or the limitations imposed upon the same by law.
All these circumstances would certainly impose limitations on his powers of dealing with the properties but that does not detract from the position that he is entitled to deal with those properties and exercise all the powers in relation thereto though with the limitations imposed upon them by reason of the capacities which he enjoys.
It follows, therefore, that, though enjoying different capacities, he is the same individual who functions though in different capacities and conducts his affairs in the various capacities which he enjoys but as a single individual.
He is not one individual when be is acting in his own individual capacity; he is not another individual when he is acting as a trustee of a particular estate and he is not a third individual when he is acting as an executor or administrator of a deceased person.
In whatever capacity he is acting he is the same individual dealing with various affairs with which he is concerned though with the limita tions imposed upon his powers of dealing with the properties by reason of the properties having vested in him in different capacities.
I am therefore of the opinion that the instrument in question does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of the donees constituting the donees his attorneys to act for him in all the capacities which he enjoys.
The instrument in question cannot be split up into separate instruments each comprising or relating to a distinct matter in so far as the different capacities of the donor are concerned.
A general power of attorney comprises all acts which can be done by the donor himself, whatever be the capacity or capacities which he enjoys and cannot be split up 857 into individual acts which the donor is capable of per forming and which he appoints his attorney to do for him and in his name and on his behalf.
It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in the one instrument which is executed by him, and if that is the position, it is but logical that whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5.
I am therefore of the opinion that the conclusion reached by the majority Judges in the High Court of Judicature at Calcutta was correct and would accordingly dismiss this Appeal with costs.
BY THE COURT.
In accordance with the opinion of the majority the Appeal is allowed with costs here and in the Court below.
| IN-Abs | Held per section R. DAS, ACTING C. J., VENKATARAMA AYYAR, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.
(BHAGWATI J. dissenting) the contention that the word "matter" in section 5 of the Indian Stamp Act was intended to convey the same meaning as the word "description" in section 6 is without force.
In its popular sense, the expression "distinct matters" would connote something different from distinct "categories".
Two transactions might be of the same description, but all the same, they might be distinct.
When two words of different import are used in a statute in two consecutive provisions, it cannot be maintained that they are used in the same sense and therefore the expression "distinct matters" in section 5 and "description" in section 6 have different connotations.
It is settled law that when two persons join in executing a power of attorney, whether it comprises distinct matters or not will depend on whether the interests of the executants in the subject matter of the power are separate or not.
Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise distinct matters.
Held, that the instrument in question, Exhibit A, the power of attorney comprised distinct matters within the meaning of section 5 of the Indian Stamp Act in respect of several capacities of the respondent mentioned therein.
Per BHAGWATI J. (dissenting).
The fact that the donor of the power of attorney executes it in different capacities is not sufficient to constitute the instrument, one comprising distinct matters and thus requiring to be stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the mean ing of section 5 of the Indian Stamp Act.
The instrument in question, Exhibit A, does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of 843 the donees constituting the donees his attorneys to act for him in all the capacities he enjoys.
It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in one instrument which is executed by him and therefore whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5 of the Indian Stamp Act.
Secretary, Board of Revenue, Madras vs Alagappa Chettiar I.L.R. , Ansell vs Inland Revenue Commissioners , Reversionary Interest Society vs Commissioners of Inland Revenue [1906] 22 T.L.R. 740, Davis vs Williams ; , Bowen vs Ashley ; , Good son vs Forbes ; , Freeman vs Commissioners of Inland Revenue [1870 71] L.R. 6 Exch.
101, Allen vs Morrison ; , Reference under Stamp Act, section 46, Mad. 358, Reference under Stamp Act, section 46, Mad.
386, Reference under Stamp Act, section 46, , and Vidya Varuthi vs Balusami, 48 I.A. 302, referred to.
|
ivil Appeal No. 1743 of 1975.
(Appeal by special leave from the judgment and order dated 5.9.1975 of the Rajasthan High Court in S.B. Civil 2nd Appeal 302 of 1974) M. Jain,., for the appellant.
S.C. Agarwala and V.J. Francis, for Respondents 1 & 2.
The Judgment of Y.V. Chandrachud and P.K. Goswami, JJ. was delivered by Goswami, J.S. Murtaza Fazal Ali, J. gave a separate Opinion.
GOSWAMI, J.
The facts of the case relating to this appeal by special leave have been fully described in the judgment of our learned brother, Fazal Ali, J.
We agree with the conclusion reached by him that this appeal should be dismissed.
We also agree with our learned brother that the appeal should be dismissed on the merits.
However, so far as the question of law that arises in this appeal, we would like to confine our decision to the reasons given hereinafter.
The question of law ,that arises in this appeal is as to whether an application for special leave or an appeal by special leave to thin, Court is an "appeal" within the meaning of section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, as amended by the Rajasthans Ordinance No. 26 of 1975 (briefly the Act).
We should, therefore, read section 13A: "13A. Special provisions relating to pend ing and other matters: Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Ordinance or in any other law, (a) no court shall, in any proceeding pending on the date of commencement of the amending Ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent, the tenant applies under clause (b) and pays to 327 the landlord,.
or deposits in court, within such time such aggregate of the amount of rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause; (b) in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commence ment of the amending Ordinance, notwithstand ing any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court, and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if the tenant had not committed any default; (c) the provisions of clause (a) and (b) shall mutatis mutandis apply to all appeals, or applications for revision, preferred or made after the commencement of the amending Ordinance, against decree$ for eviction passed before such commencement with the variation that in clause (b), for the expression "from the date of commencement of the amending Ordinance" the expression "from the date of the presentation of the memorandum of appeal or application for revision" shall be substi tuted; (d) no court shall in any proceeding pending on the date of commencement of the amending Ordinance, pass any decree in favour of a landlord for eviction solely on the ground that due to the death of the tenant as defined in clause (vii) of section 3 as it stood before the commencement of the amending Ordi nance, his surviving spouse, son, daughter and other heir as are referred to in sub clause (b) 04 clause (vii) of section 3 were not entitled to the protection against eviction under this Act as it stood before the com mencement of the amending Ordinance; (e) no decree for eviction passed by any court before the commencement of the amending Ordinance shall, unless the same already stands executed before such commencement, be executed against the surviving spouse, son, daughter and other heir as are referred to in sub clause (b) of the clause (vii) of section 3 if such decree was passed solely on the ground as is referred to in clause (d) and such decree shall be deemed to be a nullity as against them; and 5 1546SCI/77 328 (f) the provisions of clause (d) shall mutatis mutandis apply to all appeals, or appli cations for revision preferred or made, after the commencement of the amending Ordinance,and Explanation: For the purposes of this section : (a) amending Ordinance means the Rajas than Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975; and (b) 'proceeding ' means suit, appeal or application revision.
" Even in the original Act passed in 1950 section 13(1)(a) was there with two provisos and there was restriction against eviction.
Under section 13(4) of the original Act a right was conferred upon the tenant in a suit founded on the ground of non payment of rent to pay the arrears with inter est and costs as determined by the court on the first day of hearing within the outside limit Of fifteen days from the date of the order.
If ,the tenant complied with the order, the suit for eviction stood dismissed, By the Amending Rajasthan Act 12 of 1965 section 13A was introduced.
Sub section (4) of section.13 of the original Act was substituted by still preserving the tenant 's right to pay the arrears with interest and costs within the out side limit of two months and on payment of the same no decree for eviction on the ground of nonpayment of rent shall be passed.
The Rajasthan Ordinance No. 26 of 1975 inter alia has amended the opening non obstante clause of section 13A and except for substituting the word 'Act ' by 'Ordinance ' in clauses (a), (b) and (c) nothing else has been altered.
Section 13A is selective enough.
Only one type of eviction decree which is solely based on the ground of non payment of rent is taken care of extending still further the period for payment ,of arrears with interest and costs.
Under section 13A, as amended, the benefit is available in pending suits of that category, appeals therefrom and appli cations for revision pending on the date of commencement of the Ordinance, that is, on 29th September, 1975.
The decree of eviction with which we are concerned in this appeal is founded on the ground of non payment of rent as specified in section 13(1) (a).
There is a two fold submission bY the learned Counsel for the appellant.
First, in view of the fact that the appellant lodged on 23rd September, 1975, an application under Article 136 of the Constitution praying for special leave to appeal against the judgment of the High Court and the Ordinance was passed on 29th September, 1975, after that application, his case is governed by section 13A(a) and (b) of the Act.
In the alternative, the appellant submits that at any rate after the special leave had been granted by this Court there was an appeal reading against the judgment of the High Court 329 and since he submitted an application within 30 days from the grant of Special leave his case is covered by section 13A(c) of the ACt.
" With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law.
It is an extraordinary right conferred under the Constitution, within the discretion of ,this Court, and such an application for Special leave does not come within the contemplation of appeal pending before the court under Section 13A(a).
It is true that the word "proceeding" winch appears in section 13A(a) and (b) means suit, appeal or application for revision according to the Explanation appended to section 13A.
Therefore, in order to attract section 13A(a), a suit, appeal or application for revision ,must be pending on the date of commencement of the Ordinance No. 26 of 1975.
In view of the connotation of the wordl "proceeding" as given under the Explanation to section 13A it is impermissi ble to extend the meaning of the word "proceeding" to in clude an application for Special leave under Article 136 of the Constitution.
The collocation of the Words, "suit, appeal or application for revision" in the Explanation to denote "proceeding" would go to show that suits, regular appeals therefrom, as provided under the ordinary law and applications for revision alone are intended.
It is incon ceivable that if the legislature had intended to include within the ambit of "proceeding" an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms.
We will now deal with the second submission of the appellant.
which is the alternative argument.
It is submitted by the appellant that even if an appli cation for special leave is not an appeal for the purpose of section 13A(a) in view of the fact that leave of this Court had been obtained and an appeal had been pending in pursu ance of the grant of special leave he iS entitled to invoke the protection under section 13A(c).
It is on that basis that the appellant submitted a second application relying on section 13A(c).
Under Order XVI, rule 11 of the Supreme Court Rules, on the grant of special leave the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of.
appeal and it shall be registered and numbered as such.
Under section 13A(c) read with section 13A(b), in a pending appeal, the tenant has to make an application within 30 days from the date of the presentation of the memorandum of appeal".
There is no provision in an appeal by special leave for presentation of a memorandum of appeal, but, as stated earlier, under rule 11 on the grant of special leave the petition for special leave is treated as the petition of appeal and registered and numbered as such.
We may in this connection contrast the provisions of the Civil Procedure Code where the proce dure is laid down for appeals.
Order 41, Civil Procedure 330 Code, deals with appeals from original decrees.
Under sub rule (1) of rule 1 of Order 41, every appeal shah be pre ferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf.
Under Order 42, the rules of Order 41 shah apply, so far as may be, to appeals from appellate decrees.
Similarly the same procedure, as under Order 41, is provided for under Order 43, rule 2, with regard to appeals from orders.
It is, therefore, clear that under the Civil Procedure Code an appeal has to be preferred in the form of a memorandum and presented to the court or to such officer appointed by the court in that behalf.
The question of limitation provided under section 13A(b) and (c) is important and the terminus a quo for the purpose of section 13A (c) is from the date of presentation of the memorandum of appeal.
Since no petition of appeal has to be presented in this court after special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c).
On the other hand the expression "the presentation of the memorandum of appeal" in section 13A(c) chimes with the construction that the legislature clearly intended to in clude only the hierarchy of appeals under the Civil Proce dure Code wherein presentation of the memorandum of appeal is an obvious requisite.
We may next deal with the question whether section 22 of the Act is of assistance in deciding this controversy since our learned brother 's conclusion has received sustenance also from the said section.
We do not think so.
Before we proceed further we may turn to some of the material provisions in the Act.
Section 6 provides for fixation of standard rent and under sub section (1 ) thereof the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises.
Sub section (1) of section 7 provides for fixation of provisional rent by the same court upon the institution of a suit under section 6.
Under sub section (4) of section 7 any failure to pay the provisional rent for any month by the fifteenth day of the next following month shah render the tenant liable to eviction under clause (a) of sub section (1) of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub,section (1) were a decree of the court in a suit for periodical payments.
Section 11 provides for procedure for increasing rent and the landlord may bring a suit under subsection (3) of section 11 for increasing rent or standard rent in the lowest court of competent jurisdiction.
Under sub section 11(4) the court shall, after such summary en quiry, as it may think necessary, make orders according to law, and a decree shall follow.
Section 19A provides for payment, remittance and deposit of rent by tenants and the court for the purpose of that section as well as for sec tions 19B and 19C with respect to any local area means any civil court which may be specially authorised by the State Govern 331 ment by notification in this behalf, or where no civil court is so authorised; the court of the Munsif, and the court of the Civil Judge, where there is no court of Munsif having jurisdiction over the area.
Section 12 provides for dealing with disallowance of amenities by the landlord by the Magistrate.
The Magistrate means the sub Divisional Magistrate having jurisdiction.
over the place where the premises in question are situated and includes such other Executive Magistrate having juris diction over and sitting at that place, as the State Govern ment may empower in this behalf section 3(i)].
Under sub section (6) of section 12 the order of the Magistrate under subsection (3) shall be executed by the Munsif having juris diction, or where there is no Munsif, by the Civil Judge having jurisdiction over the area in which the premises are situated as if it were a decree passed by such Munsif or Civil.
Judge, as the case may be.
Next,section 17 describes the powers of a Magistrate to require premises to be let and certain orders can be passed under that section by the Magistrate.
Similarly section 19 enables the Magistrate to pass certain orders with regard to the vacant building sites.
From a conspectus of the above provisions it will be seen that there are two types of forums for instituting action under the Act.
One category of actions is taken to the lowest court of competent jurisdiction which is a civil court and the other category is lodged before the Magistrate on the executive side.
The word court, however, is not defined in the Act but for purposes of sections 19A, 19B and 19C.
While the forums are specified for certain types of actions enumerated in the Act no court as such is specified in the Act for entertaining suits of eviction by landlord against a tenant.
It is, therefore, manifest that such suits will lie in the ordinary civil court of competent jurisdiction.
That court will, however, have to take into account the relevant provisions of the Act, for the purposes of determination of controver sies raised before it.
The benefits conferred by the Act upon the tenants will have to be given by the civil court in trying eviction suits.
Where there is a bar of eviction under the Act the court will have to give effect to it.
As is clear from the above narration that there is a dichotomy of forums under the Act, some matters are lodged before the lowest court of competent jurisdiction and some others before the Magistrate.
There is a tertium quid, namely, the usual court which is available to the landlord for instituting suits for eviction against tenants.
The landlord, however, will have to take note of the provisions under the Act and comply with those provisions in such a litigation.
The tenant also, in such suits, will be able to claim all the benefits conferred upon him under the Act which the courts will, in appropriate cases, grant.
In the above background of the provisions in the Act section 22 which provides for appeals and revisions may be read: 332 "22(1) From every decree or order paSsed by a. court under this Act, an appeal shall lie to the court tO which appeals ordinarily lie from original decrees and orders passed by such former court.
(2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; (3) Any person aggrieved by an order of the.
Magistrate may, within fifteen days from the date of such order, appeal therefrom to the District Magistrate or such.
authority.
as the State Government may from time to time appoint in that month.
" It is very significant that while SectiOn 22( 1 ) quali ties the decree or order aS being "under this Act", Section 13A, on the contrary, does not describe "proceeding" to be under the Act.
Section 22(1) refers to every decree or order passed by a court under this Act.
The decree or order passed.
under this Act must,therefore, have reference to those passed under Sections 6, 7, 11, 19A and 19C. Sub section (2) pro vides that no second appeal shall lie from any such decree or order.
Such decrees or orders are, therefore, again referable to those passed under the above mentioned sections under the Act, While a second appeal is barred in case of those decrees and orders under the Act the High Court 's power of revision is not barred.
Sub section (3), of section 12 provides for appeals from an order of a Magistrate to the District Magistrate or such authority as may be appointed by the Government.
As noticed earlier Certain orders are passed by.the Magistrate under section 1,(3), Section.
17 and section 19 Section ,22(3) makes provision of appeal against such orders passed under section 12(3), section 17 and section 19.
It is, therefore, clear that the Act provides for the. institution of actions in two different forums and also makes provision for appeals and revisions against orders and decrees passed under the Act.
There is no provision in the Act for institution of suits for eviction which will, there fore, lie in the ordinary =courts of competent jurisdiction.
Appeals, also revisions, where competent, will lie against 'decrees in eviction suits in the usual hierarchy of Courts.
It is manifest from a perusal of the scheme of the Act that appeals or applications for revision under section 13A(c) relate only to decrees in :suits for eviction based on the ground.
of nonpayment of rent.
Such appeals or appli cations for revision under section 13A(c) are not contem plated under section 22 of the Act.
As shown above, decrees or orders passed by the court under the Act against which appeals and revisions are provided in Section 22 do not take in decrees or orders passed in a Suit for eviction.
Usual rights of appeal and revision will be available in the latter class of 333 suits.
To hold otherwise will be to deny a right of second appeal to a litigation, be he a landlord or tenant, against a decree in an eviction suit which is clearly not the inten tion of the legislature.
Second appeal is only barred in ease of decrees or orders passed under the Act to which a copious reference has been made hereinabove with reference to the various provisions of the Act.
With regard to execution proceedings, it. would appear that these are outside the scheme of clauses (a) to (c) of section 13A but it is unnecessary to express any firm opinion on that point since it does not arise in this ap peal.
We are of opinion that the appellant cannot take advan tage of section 13A in this appeal by special leave.
His applications under section 13A stand dismissed.
The appeal is, therefore, dismissed, but there will be no order as to costs.
FAZAL ALl, J.
This appeal by special leave involves a question of law regarding the ambit and.scope of section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as amended by Ordinance No. 26 of 1975 dated September 29, 1975 which was later replaced by an Act.
The appeal arises in the following circumstances.
The defendant/appellant along with his two brothers Padam Chand and Tara Chand had taken on lease a shop at a monthly rent of Rs.60/ from the plaintiffs/respondents as far back as September 1, 1961.
The shop was situated in Tripolia Bazar, Jaipur City (Rajasthan).
The plaintiffs served a notice of eviction under section 106 of the Transfer.
of Property Act on the appellant and his two brothers terminating.
the tenancy and directing.
them to vacate the premlses.
As the tenants did not Vacate the premises, the plaintiffS instituted the present suit. in the Court of the Munsiff East, Jaipur City,_ claiming eviction of the appel lant and his two brothers on me ground that they had not paid or tendered rent for a period of, six months from Magh shukla 1, smvt.
In the plaint the plaintiffs also averted that the.
shop was required by them for their own use and occupation and that the tenants had sublet the shop to Rajasthan Bartan Bhandar.
without the consent of the plaintiffs.
We might mention here that these two grounds.
taken by the plaintiffs have been held by all the Courts to be completely disproved, and.the suit was decreed by the District Judge and the High Court mainly, on.
the ground that thetenants had defaulted in payment of rent for a PeriOd of six months and were, therefore, liable to be ejected under the provisions.
0f the Rajasthan premises (Control. of Rent and Eviction) Act, 1950 hereinafter referred to as 'the Act '.
It appears that after summonses were served on all the three defendants including the appellant, two of the brothers of the appellant, Viz., Padam Chand and Tara Chand put in their appearance, but the appel lant despite the service did not put in his appearance.
In fact the counsel who was appearing for the other two defend ants had been instructed to appear for the appellant also, but the Vakalatnama was not signed by the appellant.
The appellant appears to have taken advantage of 334 this lacuna in contending that he had not participated in the proceedings of the Trial Court.
On February 14.
1966 the defendant Tara Chand moved an application under section 13 of the Act praying to the Court that the rent due may be determined and the defendants may be directed to deposit the rent.
The Court accordingly determined the rent on March 1, 1966 and directed the defendants to deposit a sum of Rs.398 75 Paise on or before April 19, 1966.
As the rent was not deposited, the plaintiffs moved an application for striking out the defence of the defendants against eviction for their failure to comply with the provisions of section 13(4) of the Act.
The Court accordingly by its order dated December 14, 1966 struck out the defence of the defendants.
It may be pertinent to note that although the appellant had not put in his formal appearance he under stood the order of the Trial Court dated December 14, 1966 striking out the defence and treated the same as having been passed not only against his brothers Padam Chand and Tara Chand, the two defendants, but also against himself and accordingly he along with his brothers preferred an appeal against that order to the Senior Civil Judge, Jaipur City on October 30, 1967.
This appeal was ultimately dismissed and then the three defendants flied an application for revision before the High Court which was also dismissed by the High Court by its order dated September 19, 1968.
Thus it is manifest that the appellant was fully aware of the proceedings that had taken place as also of the order that had been passed against the defendants striking out their defence.
When the record was received back by the THai Court, Shri Tara Chand Jain Advocate of the defendants informed the Court on November 26, 1968 that he was holding brief only on behalf of the two defendants Padam Chand and Tara Chand and not on behalf of the appellant Gyan Chand.
The Court accordingly passed an order that the suit was to proceed ex parte against the appellant.
On November 30, 1968 the appellant flied an application for setting aside the ex parte order passed against him and this application found favour with the Trial Court and was accordingly allowed.
The appellant was allowed to file his written statement which he filed on January 27, 1969.
Thereafter the appellant applied to the Court for determining the rent due to the plaintiffs but that application was rejected on the ground that no amount of rent was payable as the entire rent due had already been paid by the other two defendants.
Thereafter the plaintiffs flied an application before the Trial Court for striking out the defence against Gyan Chand as he had not complied with the order under section 13(4) of the Act passed by the Court previously.
The Trail Court, however, did not pass any orders on that application and ultimately dismissed the suit holding that there was no default.
It may be.
stated at the outset that when the appellant applied for setting aside the ex parte order he gave no explanation whatsoever for his non appearance in the suit, after the summonses were served on him but merely tried to explain his absence on November 26, 1968.
We have already pointed out that the appellant knew very well that the defence had been struck ,out by an order of the Court and had actually joined in the appeal and the revision flied by the other two defendants.
In spite of that for two years he kept quiet and gave no explanation whatsoever for not appearing before the 335 Court and participating in the proceedings until November 30, 1968.
This delay of two years which has been seriously commented upon by the High Court has not been explained satisfactorily by the appellant.
After the suit was dismissed by the Trial Court, the plaintiffs filed an appeal before the Additional District Judge who allowed the appeal holding that the defendants were defaulters and accordingly decreed the suit.
The grounds of subletting and personal requirement as alleged by the plaintiffs were, however, held not proved.
Thereaf ter there was second appeal to the High Court which affirmed the judgment of the District Judge and maintained the decree passed by the District Judge.
The High Court has rightly pointed out that the conduct of the appellant in not giving any explanation for not participating in the proceed ings despite service of the summonses speaks volumes against him.
The argument of the appellant that the entire proceedings should be cancelled as they had taken place in his absence was rightly rejected by the High Court.
In view of the concurrent findings of fact recorded on this point by the District Judge and the High Court, we are not at all inclined to interfere, in this appeal by special leave, with the merits of the case decided by the Courts below we are satisfied that the appellant was not diligent at all and has to thank his stars if the decision of the Courts below went against him In these circumstances, we do not propose to enter into merits of the appeal.
Mr. Jain, however, raised a pure question of law flowing from the amendment by which section 13A was introduced in the Act by virtue of Ordinance No. 26 of 1975.
Mr. Jain submitted that the statutory benefit conferred by section 13A would have to be extended to the appellant before this Court also and since the rent due had already been paid and the appellant was prepared to pay the costs and interest, the suit should be dismissed.
In order to appreciate this point, it may be necessary to state the sequence of facts.
The High Court dismissed the second appeal of the appellant on September 5, 1975.
Against this judgment, the appellant filed an applica tion for special leave in this Court on September 23, 1975.
Six days later i.e. on September 29, 1975 Ordinance No. 26 of 1975 dated September 29.
1975 introduced section 13A by amend ing the Act.
On October 28, 1975 the appellant filed a Civil Miscellaneous Petition in this Court praying that the Court may issue directions under the newly amended section 13A (c) of the Act.
On November 14, 1975 this Court granted special leave.
On December 11, 1975 another Civil Miscella neous Petition was filed by the appellant renewing his prayer for directions to be given by this Court under section 13A of the Amending Act.
The significance of these Civil Mis cellaneous Petitions appears to have been that if the spe cial leave petition was not treated as an appeal, then the moment the special leave was granted by this Court the appeal stood admitted by this Court and, therefore, the second application was filed for directions under section 13A of the Act as amended.
Mr. Agarwala counsel for the respondents has vehemently contended that section 13A of the Act would have absolutely no application to appeal by special leave filed in this Court.
In order to appreciate 336 this point it may be necessary to examine the language and the circumstances under which section 13A was introduced.
It would appear that before the introduction of section 13A by virtue of the.
Ordinance there was no provision in the Act which prohibited the Court from passing any decree if at any stage the tenant was prepared to deposit the, entire rent, costs and interest as directed by the Court.
The Legisla ture in pursuance of its socialistic policies attempted to liberalise the conditions of tenancies so as to give the tenants special protection against frivolous evictions.
With this object in view, the Ordinance appears to have been passed which was later on replaced by an Act.
In the state ment of objects and reasons accompanying.the amending Act it is mentioned that the Legislature decided to provide relief to tenants occupying premises in urban areas and in clause (6) 0f the said statement, the following observations are made: "In relation to pending suits and pro ceedings for ejectment on ground of defaults, an opportunity had been given to tenants to deposit the arrears of rent within thirty days and upon such deposit no decree for ejectment will be passed on such ground against them." Thus a perusal of clause (6) of the statement of Objects and reasons would clearly show that the intention of ,the Legislature was to confer certain benefits on the tenants to pending suits and proceedings for ejectment only on ground of defaults by giving them an opportunity to deposit the arrears within a specified time.
It is nowhere mentioned in clause (6) that this benefit was to be extended beyond the frontiers of the State in appeals which Were not ordinary remedies but which were special remedies provided for under the Constitution.
Thus the scope of the amendment was to confine the protection given to the tenants within the limits of the hierarchy of courts mentioned by the Act, and to the.
Courts in the State of Rajasthan.
It may be noticed that the statement of,objects and reasons does not even give a hint that the benefit conferred by section 13A 'would ' be available even in the execu tion proeedings after the decree had` been passed.
We shall now analyse section 13A of the Act, against the background of the main objective of the Legislature.
Section 13A of the ACt as introduced by Ordinance No. 26 of 1975 and later re placed by the Act runs thus: "13A. Special provisions relating to pending and other matters Notwithstanding anything to the contrary, in 'this Act as it ' existed before the commencement of the ordinance or in: any other law: (a) no court shall, in any proceeding.
pending on the date of commencement of the amending ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent, if the tenant applies under clause (b) and pays to the landlord; or deposits in court, Within such time.
such aggregate of the amount of rent in arrears, interest 337 thereon and full costs of the suit as may be directed by the court under and in accordance with that clause;.
(b) in every such proceeding, the court shall on the application of the tenant made within thirty days from the date of commence ment of the amending ordinance, notwithstand ing any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the ,court, and on such payment being made within the time fixed as afore said, the_proceeding shall be disposed of as if the tenant had not committed any default; (c) the provisions of clauses (a) and (b) mutatis mutandis apply to all appeals, or application for revisions, preferred or made after the commencement of the amending ordi nance, against decrees for eviction passed before such commencement with the variation that in clause (b), for the expression "from the date of commencement of the amending ordinance" the expression "from the date of the presentation of the memorandum of appeal or application for revision" shall be substi tuted; X X X Explanation: For the purpose of this section .
(a) "amending ordinance" means the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975; and (b) "Proceeding" means suit, appeal or application for revision.
" Section 13A contemplates only three kinds of proceedings, namely, suits, appeals and applications for revisions and these proceedings must be under the Act ,itself.
Clause.
(a) of section 13A of the Act provides that no court after the commencement of the mending ordinance shall pass any decree on the ground of non payment of rent if the tenant applies and a s to the landlord the entire rent in arrears interest and full costs of the suit.
Clause (b) requires that such an application is to be made within thirty days of the com mencement of the amending ordinance on,Which the Court would determine the rent in arrears and direct, interest to be paid at the rate of six per cent per annum.
Clauses (a) and (b) obviously do not apply to the present case, because the proceedings were not pending in any court when the ordinance or the Act came into force.
Reliance was, however, placed on the word "proceeding" as appearing in clauses (a) and (b) in 338 order to plead an argument that the word "proceeding" was wide enough to include not.
only Suits, but appeals at all stages.
This argument in our opinion is based on a serious misconception of the interpretation of the word "proceeding".
The Legislature has not left the connotation of the word "proceeding" in doubt because clause (b) of the Explanation clearly indicates what "proceedings" contemplat ed by section 13A in clauses (a), (b) and (c) are.
The Expla nations clearly shows that "proceeding" means suit, appeal or application for revision.
A logical interpretation of clause (b) of the Explanation would clearly reveal that the Act itself has limited the scope of the proceeding to suits, appeals or applications for revision under the hierarchy of the statute.
In other words, the Explanation refers only to Such proceedings as may be pending in any suit, appeal or application for revision under the Act.
Section 22 of the Act runs thus: "22.
Appeals and Revisions : (1) From every decree or order passed by a Court under this Act, an appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former court.
(2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; X X X X " Section 22 provides for an appeal to the Court where an appeal ordinarily ties, i.e. the Court of the District Judge in the instant case and thereafter an application in revi sion to the High Court.
The use of the words "such proceed ing" in clause (b) of section 13A fortifies our conclusion that the proceedings contemplated by section 13A are really the pro ceedings referred to in Explanation which means proceedings in the nature of suits, appeals or applications for revision as referred to in section 22 of the Act.
In these circumstances we are unable to agree with the learned counsel for the appellant that proceedings in this Court would fall within the ambit of clauses (a) and (b) of section 13A of the Act.
It was then submitted that at any rate clause (c).
of section 13A would apply to the facts of the present case and the appellant should be given the benefit of that provision.
It is true that clause (e) applied the provisions of clauses (a) and (b) mutatis mutandis to appeals and applications for revision.
It may be noticed, however, mat this benefit is not conferred even in the execution proceedings arising out of decrees passed in suits or appeals and upheld in revi sions.
The true interpretation of clause (c) of section 13A would, therefore, be that this clause also contemplated the same proceedings as contemplated by clauses (a) and (b), namely the proceedings indicated in the Explanation.
Thus the benefit conferred by clause (c) would apply only to appeals or applications for revisions filed under the 339 Act as provided by section 22 of the Act.
The Legislature never intended to confer this benefit beyond the frontiers of the State.
It was however, submitted that the word "appeal" is wide enough to include an appeal by special leave filed in this Court.
It is, however, not possible to accept this conten tion.
The amendment was passed some time in the year 1975 i.e. about 25 years after the Constitution had come into force.
An appeal by special leave was a special remedy provided for by article 136 of the Constitution and the State Legislature of Rajasthan must be presumed to be aware of this special remedy as also the nomenclature of this remedy.
If the intention was to extend the benefit to appeals for special leave it should have been so clearly stated in clause (c).
Furthermore, the Rules flamed by the Supreme Court, the knowledge of which also must be ascribed to the State Legislature, make a clear cut distinc tion between an application filed in the Court for grant of special leave and a petition of appeal after the leave is granted.
It was suggested that the application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause (c) of section 13A.
It is, however, not possible to accept this ,contention, because the constitu ents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI r. 1(2) of the Code of Civil Procedure.
Under O. XVI r. 4 of the Supreme Court Rules, 1966 the petition for special leave is to contain only the necessary facts and not the grounds.
It is true, r. 11 of O. XVI of the Supreme Court Rules provides that the petition for special leave would be treated as a petition of appeal after the special leave is granted, but that also cannot be equated with a memorandum of appeal as contemplated by clause (c) of section 13A of the Act.
In contra distinction to the provisions of the Supreme Court Rules it would appear that O. XLI r. 1 (2) of the Code of Civil Procedure runs thus: "The memorandum shall set forth, con cisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
" It would thus appear that the provisions of r. 1 (2) of O. XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under the distinct heads the grounds of objections to the decree appealed from.
No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be field if certifi cate by High Court is granted.
The Legislature must be presumed to be aware of the difference between an applica tion for special leave to appeal and a memorandum of appeal.
If the intention was to extend the benefit of section 13A even to appeals before the Supreme Court, then apart from the word memorandum of appeal, the words "application for special leave to Supreme Court" should have been mentioned.
The fact that clause (c) of section 13A merely mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicate that 340 the remedies contemplated by the Act are the remedies of appeal and revision as provided for by section 22 of the Act.
In fact, as already pointed out, the benefit conferred by section 13A of the Act does not extend even to the.
execution pro ceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been pro vided not by the State Legislature but by the Constitution itself.
For these reasons, therefore, we reject the argument of the appellant that clause (c) of section 13A of the Act would apply to the present appeal and that the appellant is, therefore,entitled to the benefit of this provision on the basis of the Civil MisCellaneous Petition filed by him.
We are clearly of the opinion, on an interpretation of the various clauses of section 13A of the Act and the Explanation thereto that.
the benefit under section 13A has been intended by the Legislature to be conferred only on the appellate and revisional courts and even execution proceedings have been excluded from the ambit Of the protection granted.
For these reasons I agree with the judgment proposed by my brother Goswami, J., and dismiss the appeal but in the peculiar circumstances of the case without any order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | Section 13A was introduced in Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950 by an Ordinance on September 29, 1975, The Ordinance was later replaced by an Act.
Clause (a)of the section provides that no Court shall, in any proceeding pending on the date of the commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent under certain circumstances.
Clause (b) provides that in every such proceeding the Court shall, on the application of the tenant, made within 30 days from the date of the presentation of the memorandum of appeal or application for revision, determine the amount of rent in arrears.
Clause (c) provides that the provisions of els.
(a) & (b) shall, mutatis mutandis, apply to all appeals, or applications for revision, preferred or made after the commencement of the Amending Ordinance.
Explanation (b) to the section defines a proceeding to mean a suit, appeal or application for revision.
Section 22(1) provides that from every decree or order passed by the Court under the Act, an appeal shall lie to the Court to which appeals ordinarily lie :from original decrees and orders passed by such former Court.
On the ground of non payment of rent, a decree of evic tion was passed against the appellant, who was the respond ent 's tenant.
The High Court having affirmed the decree on appeal, the appellant filed an application for special leave to this Court on September 23, 1975.
The Ordinance intro ducing section 19A was passed on September 29, 1975.
This Court granted special leave on November.
In appeal to this Court it was contended by the appel lant (1) that since the application for special leave was pending before this Court on the date of the commencement of the Ordinance, the case was governed by section 13A (a) and (b) of the Act; (2) in the alternative since, as a result of the grant of special leave, an appeal had been pending before this Court, the appellant was entitled to the protection of section 13A(c) of the Act.
Dismissing the appeal, HELD: (Per Chandrachud and Goswami, JJ) (1)(a) In order to attract section 13A(a) a suit, appeal or application for revision must be pending on the date of the commencement of the Ordinance.
An application for special leave under article 136 of the Constitution cannot be equated with the ordinary remedy of appeal as of right under any provision of law.
It is an extraordinary right conferred under the Constitution, within the discretion of the Supreme Court and an application for special leave does not come within the contemplation of appeal pending before the Court under section 13A(a).
The collocation of the words "suit, a. appeal or application for revision" used in the explanation to denote "proceeding", shows that the suits and regular appeals therefrom as provided under the ordinary law and applications for revision alone are intended.
[329C & B] 325 (b) The expression "presentation of memorandum of appeal" under section 13A (c) chimes with the construction that the legislature clearly intended to include only the hierarchy of appeals under the Code of Civil Procedure.
[330D] (c) Under section 13A(c) read with section 13A(b) in a pending appeal, the tenant has to make an application within 30 days "from the date of presentation of the memorandum of appeal".
There is no provision in an appeal by special leave for presentation of memorandum of appeal, under r. 11 of O.XVI.
of the Supreme Court Rules, on the grant of special leave, the petition for special leave is treated as the petition of appeal.
In contrast under O.41 r. 1(1) of the Code of Civil Procedure, every appeal shall be preferred in the form of a memorandum signed by the appellant and pre sented to the Court.
[329H] (d) The terminus a quo for the purpose of section 13A(c) is from the date of presentation of the memorandum of appeal.
Since no petition of appeal has to be presented in the Supreme Court after the special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c).
[330C] (2) Section 22 cannot assist the appellant in this case.
While section 22(1 ) qualifies the decree or order as being "under this Act" section 13A does not describe "proceeding" to be under the Act.
[330E; 332C] The Act provides for the institution of serious in two different forums namely, the lowest Court of competent jurisdiction, which is the Civil Court, and the other before a Magistrate on the executive side.
[332F] Appeals or applications for revision under section 13A(c) relate only to decrees in suits for eviction based on the ground of non payment of rent.
Such appeals or applications for revision under section 13A(c) are not contemplated under section 22.
Decrees or orders passed by the Court under the Act, against which appeals and revisions are provided in section 22, do not take in decrees and orders passed in a suit for eviction.
Usual rights of appeal and revision will be available in the latter class of suits.
To hold otherwise will be to deny a right of second appeal to a litigant, whether it is landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature.
Second appeal is only barred in case of de crees or orders passed under the Act.
[332H] (Per section Murtaza Fazal Ali, J.) Proceedings in this Court would not fall within the ambit of cls.
(a) and (b) of section 13A. [338F] (a) The Explanation to the section clearly shows that the word "proceeding" refers only to such proceedings as may be pending in any suit, appeal or application for revision under the Act.
The use of the words "such proceedings" in section 13A(b) shows that the proceedings contemplated by section 13A are really proceedings referred to in the explanation, which means proceedings in the nature of suits, appeals or appli cations for revision as referred to in section 22.
[338E F] (b) Section 13A(c) would not apply to the present case.
The benefit conferred by el.
(c) would apply only to appeals and applications for revision filed under the Act as provid ed by section 22.
The true interpretation of cl.
(c) would be that this clause contemplated the same proceedings as con templated by els.
(a) and (b), namely, proceedings indicated in the explanation.
[338G H] (c) An appeal by special leave is a special remedy provided by article 136 of the Constitution and the legislature must be presumed to be aware of this special remedy.
If the intention was to extend the benefit to appeals for special leave, it should have been clearly stated in el.
[339B] (d) The Supreme Court Rules make a clear cut distinction between an application filed for the grant of special leave and a petition of appeal, if the leave is granted.
The constituents and ingredients of an application for special leave to appeal are quite different from those of a memoran dum of appeal under O.X.LI r. 1(2) of the Code of Civil Procedure.
[339D] 326 (e) The provisions of O.XLI, r. 1(2) C.P.C. require that the memorandum of appeal has to set forth under distinct heads, the grounds of objections to the decree appealed from.
No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be filed if certificate by the High Court is granted.
The legislature must be.
presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal.
Though r. 11 of O.XVI of the Supreme Court Rules provides that the petition for special leave would be treat ed as a petition of appeal after the special leave is grant ed,it cannot be equated with a memorandum of appeal contem plated by section 13A(c) of the Act.
[339G H] (f) The fact that section 13A(c) mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicates that the reme dies contemplated by the Act are remedies of appeal and revision as provided for by section 22 of the Act.
[339H]
|
Appeal No. 1164 of 1970.
(Appeal by Special Leave from the Order dated the 5th Sep tember 1969 of the Punjab & Haryana High Court in S.C.A. No. 197 of 1968) Naunit Lal, Girish Chandra and R.N. Sachthey, for the appel lant.
S.B. Wad, for respondent No. 1.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The 1st respondent is a co operative transport society carrying on transport business at Kaithal, District Karnal, State of Haryana.
The Society terminated the services of respondents 3 and 4 who were working with it as conductor and driver, respectively.
The State of Punjab, on June 22, 1964 referred the dispute arising out of the dismissal of respondents 3 and 4, under section 10 of the Indus trial Disputes Act (14 of 1947) for the adjudication of the Labour Court, Rohtak.
That Court was then presided over by Shri Jawala Dass.
On Shri Dass 's retirement, Shri Hans Raj Gupta was appointed on June 4, 1965, as the presiding Officer of the Court.
The reference was thereafter heard by him and on April 16, 1966 he gave an award directing the reinstatement of respondents 3 and 4 with 50% backwages from the date of their dismissal until the date of reinstatement.
The Presiding Officer of the Labour Court is the 2nd re spondent to this appeal.
Being aggrieved by the award, the 1 st respondent filed Writ Petition No. 1575 of 1966 in the High Court of Punjab and Haryana under articles 226 and 227 of the Constitution, praying that the award given by the 2nd respondent be set aside on the ground, inter alia, that he was not qualified to hold the post of a Judge of the Labour Court, and, therefore, the award was without jurisdiction.
The Writ petition having been allowed by a Division Bench by its judgment dated March 26, 1968 the State of Haryana has filed this appeal by special leave.
The Presiding Officer of the Labour Court was impleaded to the Writ Petition as the 2nd respondent.
308 The only question for decision in this appeal is whether Shri Hans Raj Gupta who gave his award as the presiding Officer of the Labour Court was qualified for being appoint ed as a Judge of the Labour Court.
Section 7(1) of the provides that the appropriate Gov ernment may constitute one or more Labour Courts for the adjudication of Industrial disputes relating to any matter specified in the Second Schedule to the Act.
A Labour Court, under s.7(2), shall consist of one person only to be appointed by the Government.
Sub section (3) of section 7 reads thus: "(3 ) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless (a) he is, or has been, a Judge of a High Court; or (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or (c) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950), or of any Tribunal, for a period of not less than two years; or (d) he has held any judicial officer in India for not less than seven years; or (e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years".
It was common ground in the High Court that Shri Gupta did not satisfy the qualifications laid down in any of the clauses (a), (b), (c) and (e) of section 7(3).
It was, however, urged in the High Court, in the first instance, that Shri Gupta had held a judicial offical in India for not less than seven years and was, therefore, qualified for being appointed as a Judge of the Labour Court under clause (d) of s.7 (3 ).
This argument was made before the learned Chief Justice of the High Court who, while hearing the Writ Peti tion singly, felt that the question raised was of public importance.
He, therefore, referred the matter to a Divi sion Bench.
The contention that Shri Gupta was qualified to hold the office of a Judge of the Labour Court under clause (d) of s.7(3) was, however, given up by the State before the Division Bench.
Before us, the learned counsel for the appellant, the State of Haryana, rightly did not pursue the unstatable contention.
Shri Hans Raj Gupta was initially working as an Upper Division Clerk cure Head Clerk.
Thereafter, he worked from January 14, 1947 to October 19, 1954 as the Registrar to the Pensions Appeals Tribunal, Jullundur Cantonment.
After relinquishing that post, he was reverted as an Upper Divi sion Clerk cum Head Clerk, which office he held till Febru ary 17, 1957.
Subsequentiy, he was appointed as an Assistant Settlement officer in which post he worked fill September 1962.
It is obvious, and requires no clever argument to show, that Shri Gupta was holding clerical posts which, with some courtesy may 309 be described as posts calling for and furnishing administra tive experience.
As an Upper Division Clerk, even if the duties of that post were combined with those of the Head Clerk, Shri Gupta was nowhere in the shadow of a judicial office.
As a Registrar of the Pensions Appeals Tribunal, Jullundur Cantonment, he was admittedly discharging adminis trative functions.
A circumstance which seems to have blurred the perception of the State Government perhaps was that the Pensions Appeals Tribunal was a judicial or quasi judicial body and since Shri Gupta was closely associated with it, does not matter in what capacity, he could be said to hold a judicial office.
Administrative proximity with judicial work was regarded as an excuse good enough to elevate the administrator into a holder of judicial office.
This was a wholly misconceived approach to a matter of some moment for, were it so, many a judicial clerk would be qualified to be appointed to a judicial office.
Having never held any judicial office, Shri Gupta totally lacked judicial experience and was incompetent to discharge the functions of a Judge of the Labour Court.
His appointment was therefore illegal and his award without jurisdiction.
We are happy to note that the State Government did not take the time of the DiVision Bench of he High Court and of this Court in arguing an impossible proposition.
Nevertheless, the award given by Shri Gupta as the Presiding Officer of the Labour Court is defended by the State Government on the Plea that Shri Gupta 's appointment cannot be challenged in a collateral proceeding filed in the High Court for challenging the award.
Reliance is placed in support of this submission on the following passage in Cooley 's "A Treatise on the Constitutional Limitations" (8th edn; vol. 2; pages 1255 1358); "An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties.
By being thus chosen and.
observing the precedent conditions, such a person becomes of right entitled to the pos session and enjoyment of the office, and the public, in whose interest the office is creat ed, is entitled of right to have him perform its duties.
If he is excluded from it, the exclusion is both a public offense and a private injury.
An officer de lure may be excluded from his office by either an officer de facto or an intruder.
An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence though having no right in fact.
His color of right may come.
from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed; or made in favor of a party not having 310 the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompa nied by such circumstances of official reputa tion as are calculated to induce people, without inquiry, to submit to or invoke offi cial action on the supposition that the person claiming the office is what he assumes to be.
An intruder is one who attempts to perform the duties of an office without au thority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void.
But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State of by some one claiming the office de lure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be.
In all other cases the acta of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.
This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.
" Equally strong reliance was placed by the State Govern ment on a decision of the Ontario Supreme Court in Rs Toronto N. Co. City of Tornoto (1) in which, after an exami nation of several American and other decisions, Meredith, C.J.O., observed: "That it is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information." (PP.
551 552) Learned counsel for the State, Shri Naunit Lal, further drew our attention to a decision of the High Court of Tra vancore Cochin in Bhaskera Pillai and Ant.
State(2) which, relying upon the passage in Cooley 's Constitutional Limitations and the Canadian case, held that the appoint ment of the Chief Justice of that Court could not be ques tioned collaterally in a proceeding for leave.
to appeal to the Supreme Court against the decisions rendered by him.
Some sustenance was also sought to the same argument from a decision of a Full Bench of (1) 46 Dominion Law Report 547.
(2) (1950) 5, D.L.R. Travancore Cochin 382.
311 the Allahabad High Court in Queen Empress vs Garsa Sam(1) in which it was held that where a person had in fact been exercising all the functions of a Judge of the High Court, the appointment even if apparently ultra vires must never theless be presumed, in the absence of fuller information, to have been legally made in the exercise of some power, unknown to the Court, vested in the Secretary of State for India.
Broadly, the starting point and the primary basis of these decisions is the passage from Cooley 's Constitutional Limitations, which we have extracted above.
That passage says and means that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding.
This important principle, according to Cooley, finds concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally.
Considering the nature and course of proceedings in the instant case, it seems to us impossible to hold that the challenge to Shri Gupta 's appointment was made in a collat eral proceeding.
That Shri Gupta 's appointment was not challenged in the very proceeding before him does not meet the point and in any case, if the proper mode to challenge the validity of an appointment to a public office is by a petition for the writ of quo warranto, the Labour Court over which Shri Gupta presided was hardly an appropriate forum for challenging the appoinment of its Presiding Officer.
The 1st respondent, the Haryana Co operative Transport Ltd., against whom Shri Gupta gave the award, filed a writ peti tion in the High Court of Punjab and Haryana to challenge the award on the ground that Shri Gupta was not qualified to hold the office of a Judge of the Labour Court and, there fore, the award given by him was without jurisdiction.
The challenge to Shri Gupta 's appointment having been made by a writ petition under articles 226 and 227 of the Constitution, to which Shri Gupta was impleaded as a partyrespondent, the challenge was made directly in a substantive proceeding and not collaterally.
The writ petition was filed mainly with a view to challenge Shri Gupta 's appointment on the ground that he was not qualified to fill the post to which he was appointed.
Having been impleaded to the writ peti tion he had a clear and rightful opportunity to defend his appointment.
The proceedings by way of a writ petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so called judicial decision, but the proceed ing was taken principally and predominantly for challenging the appointment itself.
None of the decisions, nor indeed the passage in Cooley 's Treatise, is therefore, any answer to the prayer that the award be declared to be ultra vires on the ground that the officer who gave it was not qualified to hold that post in the exercise of whose functions the award was given.
The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justi fy the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award.
Considering the averments in the writ petition, it seems to us clear that the main and real attack on the award (3) I.L.R. 16.
4 1546 SCI/76 312 was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the discharge of whose func tions the award was rendered by him.
The relief of certio rari asked for by writ petition was certainly inappropriate but by clause (c) of paragraph 16, the High Court was invited to issue such other suitable writ, order or direc tion as it deemed fit and proper in the circumstances of the case.
There is no magic in the use of a formula.
The facts necessary for challenging Shri Gupta 's appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground_ that he was not qualified to hold the post of a Judge of the Labour Court.
It must be mentioned that in the Canadian case of re Toronto vs City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board was a "Superior Court" within the meaning of section 96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created.
This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General.
In the Travancore Cochin case the Chief JustiCe whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60.
The question really turned on the construc tion of article 376 (2) of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before the commencement of the Constitu tion may continue to hold that office.
Besides, the Chief Justice 's appointment was challenged collaterally in appli cations for leave to appeal to the Supreme Court against the judgments pronounced by him.
The Full Bench judgment of the Allahabad High) rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court.
Deliver ing the judgment of the Court, Edge, C.J. observed at page 157: "Being in ignorance as to whether or not any power existed under which Mr, Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re butted.
This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appoint ment of one of its acting Judges, but our lack of necessary information,ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other.
" Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not 313 qualified under section 7(3) of the Act to be appointed as a Judge of the Labour Court.
Reliance is placed in support of this argument on section 9(I) of the Act which reads thus: "9.
Finality of orders constituting Boards, etc. (1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in ques tion in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court.
" It is true that s.9(1) is worded so widely and generally that it could cover any and every challenge to the appoint ment to the particular posts therein mentioned.
But it is impossible to construe the provision as in derogation of the remedies provided by articles 226 and 227 of the Consti tution.
The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9(1) of the Act.
The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to.
bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to enter tain a challenge to appointments mentioned in the sub sec tion.
The High Court of Assam(1), Bombay(2) and Rajasthan(3) have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meaning of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts.
The rights conferred by articles 226 and 227 can be abridged or taken away only by an appro priate amendment of the Constitution and their operation cannot be whittled down by a provision like the one con tained in s.9( 1 ) of the Act.
Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal.
If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction.
To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under articles 226 and 227.
In the result we affirm the judgment of the High Court and dismiss this appeal.
We are thankful,.
to Shri Wad for assisting the Court as amicus.
S.R. Appeal dismissed.
(1) Bozbarua (G.C.) vs Sate of Assam 1954 Assam 161.
(2) lagannath Vinayak Kale vs Ahmedi (1958) II L.L.J. 50 (Bom.) (3) Mewer Textile Mills Ltd. vs Industrial.
| IN-Abs | The first respondent, a Co operative Transport Society terminated the services of respondent 3 and 4.
The State of Punjab referred the dispute arising out of the dismissal of respondents 3 to 4 under section 10 of the to the Labour Court that was presided over by Mr. Das.
On Mr. Das 's retirement Shri Hans Raj Gupta was ap pointed as the Presiding Officer of the Court.
Mr. Gupta gave an award directing the reinstatement of respondents 3 and 4 with 50 per cent back wages from the date of their dismissal until the date of reinstatement.
The first respondent being aggrieved by the award filed a writ petition in the High Court under Articles 226 and 227 of the Constitution praying that the award given by second respondent be set aside on the ground, inter alia, that he was not qualified to become the Presiding Officer under section 7(3) of the Act since he did not hold any judicial office in India for not less than 7 years.
The contention of respondent No. 2 was that he held such a judicial office because he worked as Upper Division Clerk cum Head Clerk, Assistant Settlemeat Officer and Registrar of the Pensions Appeals Tribunals.
The contention that he held judicial office was not pressed before the High Court and in this Court by the State.
The State Government, however. supported the award on the plea that Mr. Gupta 's appointment cannot be challenged in collateral proceedings filed in the High Court for challenging the award.
Re Toronto & Co. vs City of Toronto 46 Dominion Law Reports 547; Bhaskara Pillai and Anr.
vs State [1950] 5DLR Travailcore Cochin 382 and Queen Empress vs Ganga Ram ILR 16 All.
136 distinguished.
Dismissing the appeal, HELD: 1.
Considering the nature and course of proceedings in the instant it is impossible to hold that the challenge to Mr. Gupta 's appointment was made in a collateral proceeding.
The appointment of Mr. Gupta could not have been challenged before him.
The challenge to his appointment having been made by writ petition under Articles 226 and 227 of the Constitution to which Mr. Gupta was impleaded as a party respondent, the challenge was made directly in a substantive proceeding and not in a collateral proceeding.
Since he was impleaded in the writ petition he had a clear and right ful opportunity to defend kid appointment.
[311 C E] 2.
The mere circumstance that the first respondent did not in so many words ask for a writ of quo warranto cannot justify the argument that the appointment was being chal lenged collaterally in a proceeding taken to challenge the award.
On the averments in the writ petition it is clear that the main and real attack on the award was the ineligi bility of Shri Gupta to occupy the post of a Judge of a Labour Court in the discharge of whose functions the award was rendered by him.
[311 G H, 312A] 307 3.
The relief of certiorari asked for by the writ peti tion was certainly inappropriate but the High Court was also invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case.
There is no magic in the use of a formula.
The facts necessary for challenging the appointment are stated clearly in the writ petition and the challenge to the ap pointment is expressly made on the ground that the officer was not qualified to hold the post.
[312A B] 4.
The finality of the orders of the Labour Court con templated by section 9(1) although widely worded must be given a limited meaning so as to bar the jurisdiction of civil courts in the ordinary exercise of their powers.
It is impossible to construe the provisions in derogation of the remedies provided by Article 226 and 227 of the Constitu tion.
[313D E] Bezparua (G.C.) vs State of Assam A.J.R. 1954 Assam 161, Jagannath Vinayak Kale vs Ahmadi [1958] II L.L.J. 50 (Bom.) and Mewar Textile Mills Ltd. vs Industrial Tribunal A.I.R. , approved.
|
Appeal Nos.
1448 & 1587 of 1971.
(From the Judgment and Decree dated the 29 1 1971 of the Madras High Court in Writ Appeal No. 119/70 and Writ Peti tion No. 471/70) Lal Narain Sinha, Solicitor General, 8.
N. Prasad (in CA No. 1448/71) and Girish Chandra, for the appellants.
316 K.K. Venugopal and K.R. Nambiar for the respondents.
The Judgment of the Court was delivered by RAY, C.J.
These appeals are by certificate against judgment and order dated 29 January 1971 of the High Court of Madras.
The respondents filed writ petitions in the High Court for a declaration that the Presidential Order dated 27 April 1960, the Railway Board orders dated 25 January 1962, Memo randa or Orders of the Ministry of Home Affairs dated 3 March 1966 and the Posts & Telegraph Department Orders dated 6 February 1965, 4 December 1965.
23 September 1967, 19 June 1968 and 9 February 1970 are void.
The Presidential Order dated 27 April 1960 was inter alia as follows : XXX XXX XXX 5.
Training of administrative personnel in the Hindi Medium . . (a) In accordance with the opinion expressed by the Committee in service training in Hindi may be made obligatory for Central Government employees who are aged less than 45 years.
This will not apply to employees below Class III Grade, industrial establishtments and work charged staff.
In this Scheme no penalty should be imposed for failure to attain the prescribed standard by the due date.
Facilities for Hindi training may continue to be provided free of costs to the trainees.
(b) Necessary arrangements may be made by the Ministry of Home Affairs for the train ing of typists and stenographers employed under the Central Government in Hindi type writing and stenography.
(c) The Ministry of Education may take early steps to evolve a standard key board for Hindi typewriters.
XXX XXX XXX 7.
Recruitment to local offices of Central Government Department : (c) The Committee has agreed with the recommendation of the Commission that the Union Government would be justified in pre scribing a reasonable measure of knowledge of Hindi language as a qualification for entering into their services provided a sufficiently long notice is given and the measure of lin guistic ability prescribed is moderate, any deficiency being made good by further in service training.
This recommendation may be applied for the present in regard to recruitment in the local offices of the Central Government De partments in the Hindi speaking areas only and not in the local offices in non Hindi speaking areas.
The directions under (a), (b) and (c) above will not apply to offices under the Indian and Audit and Accounts Department . " 317 The Railway Board Notification dated 25 January 1962 inter alia stated as follows: "The progress of Hindi training of staff on the Railways is very slow and the facili ties provided by the Government are not being utilized properly.
Immediate steps should be taken to correct the position and ensure that the facilities offered by the Government are not misused.
Since training in Hindi is obligatory and is being imparted during work ing hours, wilful absence from Hindi classes should be treated as absence from duty and dealt with as such.
" The Home Ministry Memorandum dated 3 March 1966 inter alia stated as follows: In service training in Hindi was made obligatory for all Central Government Employees below 45 years of age, excluding employees below Class III Grade, industrial establishments and workcharged staff.
The pro gramme for facilitating the progressive use of Hindi should be completed by March 1966.
Steps for the fuller use of facilities under the Hindi Teaching Scheme were being laid down.
The facilities indicated that employees working in a Ministry should get themselves enrolled in the Hindi classes and failure to attend these classes should be discouraged and the obligatory training should include their appearance at the examinations.
One of the Posts & Telegraph 's Orders referred to above is set out as a type.
This Order provides teaching facili ties and free training in Hindi during office hours.
One of the petitioners in the High Court was Murasoli Maran.
He described himself as a sitting Member of Parlia ment and stated that he had duty to represent the people.
The locus standi of the petitioner was challenged in the High Court '.
The High CoUrt rightly held that the petition er could not maintain the petition in the High Court.
The petitioner in the other writ petition described himself as Assistant Manager in the Office of the Post Master General, Madras.
His locus standi was not chal lenged.
The petitioners contended in the High Court that the Presidential Order ceased to have any effect because the Second Language Commission was not appointed as contemplated under Article 344 of the Constitution.
The second conten tion was that the Presidential Order and other orders, circulars and memoranda issued pursuant thereto were incon sistent with section 3 of the Official Language Act 1963, as amended, inasmuch as they placed persons like the petition ers in a disadvantageous position on account of their having no proficiency in the Hindi language.
The two relevant Articles in the Constitution are Arti cles 343 and 344.
Broadly stated, Article 343 provides as follows.
The official language of the Union shall be Hindi in Devanagari script.
For a period of 15 years from the commencement of the Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement.
The proviso to Article 343 (2) is that the President may, 318 during the said period, by order authorise the use of the Hindi language in addition to the English language.
Parlia ment may by law provide for the use, after the said period of 15 years,of the English language for such purposes as may be specified in the law.
Article 344 is as follows.
The President shall, at the expiration of five years from the commencement of the Con stitution and thereafter at the expiration of ten years from such commencement, by order constitute a Commission.
It shall be the duty of the Commission to make recommendations to the President as to (a) the progressive use of the Hindi Language for the official purposes of the Union; (b) re strictions on the use of the English language for all or any of the official purposes of the Union; (c) the language to be used for all or any of the purchases mentioned in Article 348.
Article 344 further provides that a Committee shall be constituted and it shall be the duty of the Committee to examine the recommendations of the Commission constituted under Article 344(1) and to report to the President their opinion thereon.
Article 344(6), provides that notwithstanding anything in Article 343, the President may, after consideration of the report referred to in clause (5), issue directions in accordance with the whole or any part of that report.
Article 351 provides that it shall.
be the duty of the Union to promote the spread of the Hindi language, to devel op it so that it may serve as a medium of expression for all the elements of the composite culture of India.
In exercise of the posers conferred on the Parliament by Article 343(3) of the Constitution, the Parliament passed the .
Section 3 of the Act provided us follows : "Notwithstanding the expiration of the period of fifteen years from the commencement of the Constitution, the English language may, us from the appointed day, continue to be used, in addition to Hindi, (a) For all the official purposes of the Union for which was ,,being used immediately before that day, and (b) for the transaction of business in Parlia ment.
" In 1968, the Parliament amended the and sub section (4) was added to section 3.
Sub section (4) as introduced by Amendment in 1968 is as fol lows: "Without prejudice to the provisions of sub section (1) or sub section (2) or sub section (3), the Central Government may, by rules made under section 8, provide for the language or languages to be used for the official purpose of the Union, including the working of any Ministry, Department, Section or Office, and in making such rules, due consideration shall be given to the quick and efficient disposal 319 of the official business and the interests of the general public and in particular, the rules so made shall ensure that persons serving in connection with the affairs of the Union and having proficiency either in Hindi or in the English language may function effectively and that they are not placed at a disadvantage on the ground that they do not have proficiency in both the languages.
" On 7 June 1955, the Official Language Commission was ap pointed by the President under Article 344(1) of the Consti tution.
The Commission submitted its report in which the arrangements made by Government of India for training their employees on voluntary basis in Hindi Language was reviewed.
The Commission was of opinion that if experience showed that no adequate results were forthcoming under such option al arrangements, necessary steps should be taken by the Government of India making it obligatory on Government ser vants to qualify themselves in Hindi within the requisite period, to the extent requisite for the discharge of their duties.
The recommendations of the Official Language Com mission were placed before a Committee of the Parliament as envisaged under Article 344(4) of the Constitution.
The Committee was of opinion that the Government should pre scribe obligatory requirements on Government servants to qualify themselves in Hindi language.
The President of India after considering the report of the Committee, issued the Presidential Order dated 27 April 1960 to which a reference has already been made.
Training in Hindi was made obligatory for employees.
Pursuant to the Presidential Order of 27 April 1960, the Home Ministry issued an office Memorandum dated 3 March 1966.Reference has already been made to that order.
The Home Ministry Order made it obligatory for Government em ployees below 45 years of age excluding certain classes of employees to have, what is described, "In service training in Hindi".
The Memorandum stated that 20 per cent of the employees should be deputed to attend the Hindi classes every year.
The Memorandum also stated that failure to attend these classes should attract penalties.
The obligatory training was to include their appearance at the examinations.
Pursuant to the Home Ministry instructions, the Post Master General, Madras, under the directions of the Director General of posts and Telegraph, issued a Memoran dum referring 10 the Presidential Order of 27 April 1960 and the Home Ministry Order dated 3 March 1966.
The Posts & Telegraph Memorandum made "In service training in Hindi" compulsory for all Central Government employees who were aged less than 45 as on 1 January 1961.
The Memorandum further outlined the facilities and incentives provided for the Hindi teaching.
Specific mention was made that attend ance to Hindi class was compulsory and was treated as part of duty.
Non compliance of Government Orders was to be treated as breach of discipline.
Solicitor General contended on behalf of the appel lant that the instructions were aimed at promoting the policy of the constitutional 320 provisions that Hindi should be the official language of the Union It was said that with a view to achieving the objec tive the employees of the Government of India ought to be trained in Hindi language.
It was also said that no one was placed at a disadvantage even if one could not qualify oneself in Hindi because no penalty was prescribed for an employee who did not attain any particular standard.
It was submitted that the Government was within its right to issue orders obliging its employees to take training in the Hindi language, so that ultimately when Hindi became the language of the Union, they could perform their duties in an effi cient and smooth manner.
The High Court upheld the contention of the respondents and held that the directions were inconsistent with section 3 of the .
The High Court held that the penal consequences which followed if a Government employee absented himself from Hindi Classes had the effect of putting such an employee at a disadvantage.
Counsel for the respondents contended first that under Article 343(3), Parliament may by law provide for the use, after the period of fifteen years, of the English language for such purposes as may be specified in the law.
Emphasis was placed on Article 343 of the Constitution to submit that Article 343 is transitional and directions of the President are limited to the period of 15 years from the commencement of the Constitution.
The following reasons were advanced: The fact that the Commission has to be constituted under Article 344 at the expiration of five years from the com mencement of the Constitution.
namely, 1955 and thereafter at the expiration of ten years from the commencement of the Constitution, namely, 1960 and not thereafter, would show that the directions issued by the President under Article 344(6) are limited to the period of fifteen years from the commencement of the Constitution.
The position which would prevail after 1965 would not be within the knowledge of the Commission of the years 1955 and 1960 because the Parliament has to decide the same.
The recom mendations of the Commission and the directions of the President cannot relate to the period after 1965.
By reason of Article 344(2)(a) and (b) the recommenda tions of the Commission as to the progressive use of the Hindi language and the restrictions on the use of the Eng lish language are matters to come within the period of fifteen years from the commencement of the Constitu tion.
Article 344(3) of the Constitution which requires the Commission to have due regard to the claims of non Hindi speaking persons in public services, indicates that these claims cart be protected only when both English and Hindi language continue.
Article 344(6) which states that notwithstanding any thing in Article 343, the President may issue directions should be related to purposes of sub clauses (a) to (e) of Article 344(2).
321 Council for the respondent relied on Article 349 in support of the contention that the affect of Article 349 is that after fifteen years from the commencement of the Con stitution, if Parliament desires to substitute Hindi for English it can do so under unfettered discretion but during fifteen years it can substitute Hindi for English language by Presidential directions.
The second broad contention on behalf of the respondent was that the (referred to as the Act) occupies a field covered by Parliamentary Legislation.
Reference was made to Objects and Reasons of the , to show that acquiring of proficiency in Hindi is the principal purpose.
Section 3(4) of the Act which was introduced and inserted by Amendment in 1968, was said by the respondent to cover that area and inasmuch as the speaks of rules and the same being laid before Parliament that is the only mode of direc tions.
In other words, it was said that the Presidential Order would not have any effect when the Official Lan guages Act occupied the field.
The third head of submissions was that the Presidential Order is inconsistent with section 3(4) of the Act.
It was said in the High Court that if the Presidential Order was inconsistent with section 3 (4) of the Act it would to that extent be void.
It was stressed that Under section 3(4) of the Act, persons were not to be placed at a disad vantage on the ground that they do not have proficiency in both the languages, namely, English and Hindi.
In the forefront stands Article 343 which states that the official language of the, Union shall be Hindi in Deva nagari script.
Article 351 states that it shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule.
The original calculation of the framers of the Constitution was that for a period of fif teen years the English language should be used for all official purposes.
That is why two Commissions were contem plated under Article 344 one in 1955 and one in 1960.
The provisions of Article 344 indicate that it shall be the duty of the Commission to make recommendations to the Presi dent as to the progressive use of the Hindi language.
The provisions of the Constitution indicate the progress towards the use of Hindi language.
It is in this context that Article 344 is enacted for the purpose of achieving the object of replacing English by Hindi within a period of fifteen years.
Article 343(3) states that Parliament may by law after the period of fif teen years provide for the use of.
English language.
Al though the Constitution considered the period of 15 years for replacing English the Constitution also found that it might not be possible to complete it.
Therefore, Article 343(3) provides merely for extension of time for the use of English language after the period of 15 years.
The progres sive use of the Hindi language is thereby ,not to be im paired.
Extending the time for the use of the English 322 language does not amount to abandonment of progress in the use of Hindi as the official language of the Union.
Comparing clauses (2) and (3) of Article 343 it will be noticed that while English is permitted to be continued for all official purposes for which it was being used clause (3) contemplated that having regard to the progress made Parliament, if necessary will choose the purpose for which the use of the English language might be continued.
Article 344(6) provides that notwithstanding anything in Article 343, the President may, after consideration of the report of the Committee referred to in clause (5), issue directions.
The non abstante clause in Article 344(6) does not operate on1y against Article 344(1) and (2) but against the entire Article 344 for the reason that so far as transi tion is concerned the directions under Article 344(6) may continue.
Article 343 and 344 deal with the processes of transition.
The ultimate aim is provided in Article 351 which fulfils the object of the spread and development of the Hindi language and enrichment of the composite culture of India.
Article 344(6) takes into account this objective and is intended to determine the pace of progress and to achieve the same.
The provisions in Article 344 indicate that if there is a second Commission at the expiration of ten years from the commencement of the Constitution, the President may, after consideration of the report issue directions at the end of fifteen years.
The provisions contained in Article 344(6) are not exhausted by using it once.
The President can use it on more than one occasion.
Further the effect of the power used cannot be said to be exhausted on the expiry of fifteen years.
The PreSidential Order which was issued in 1960 continues to be in force and cannot be said to have exhausted itself at the end of 15 years from the commence ment of the Constitution.
It would be strange that the steps necessary for the change should be given up at the expiry of 15 years because what is said to be a switch over from English to Hindi has not been possible and Parliament provided by law for r. he continued use of the English language for particular purposes specified in that law.
The Presidential Order keeps in view the ultimate object to make the Hindi language as official language, but take is into note the circumstances prevailing in our country and considers it desirable that the change should be a gradual one and due regard should be given to the just claims and the interests of persons belonging to the nonHindi speak ing areas.
The purpose of the Presidential Order is to promote the spread of the Hindi language and to provide the Central Government employees the facilities to take training in Hindi language when they are in service.
The Presidential Order was validly made and there has been and can be no challenge to it.
It is erroneous to suggest that the Presidential Order of 1960 became invalid after the passing of the Act.
The High Court failed to see the sequence of the Presidential Order and the Act.
323 The Act merely continues the use of the English language in addition to Hindi.
The Act does not provide anything which can be interpreted as a limitation on the power of the President to issue directions under Article 344(6) of the Constitution.
The Presidential Order has no inconsist ency with the Act.
The non obstante provisions in Article 344(6) empower the President.
Therefore, the Presidential Order is paramount.
Parliament is legislating in a different field.
The filed is the per missive use of English language in addition to Hindi during the period following 15 years because the change to Hindi could not be complete.
, The transitional period has exceeded 15 years.
The Presidential Order keeps in view the steps to replace the use of English language.
The operation of the Act and the Presidential Order is in different fields and has different purposes.
The Act is to continue the use of English language after the expiry of fifteen years.
Presidential Order on the other hand is to provide for the progressive use of the Hindi language.
The contention of the respondent that persons are placed at a disadvantage is incorrect.
The Presidential Order confers an additional qualification on those who learn Hindi.
The Presidential Order does not take away anything from the Government employees.
Prizes are offered and there may be increase in pay.
These are incentives.
The measures taken for enforcement of provisions for learning Hindi by providing for absence from classes as breach of discipline and insisting on appearance at the examinations are steps in aid of fulfilling the object of what is described as "in service training in Hindi language.
" Such enforcement of attendance and examinations for proficiency is necessary for completion of training.
The contention that the Presiden tial Order conflicts with section 3(4) of the Act is un sound.
The "in service training" of the employees is during hours of duty and free of cost.
Even if they fail there is no penalty.
There is no treatment of unequals alike.
For the foregoing reasons, the judgment of the High Court is set aside.
The Presidential Order and other Orders challenged in the writ petitions are upheld.
The appeals are accepted.
The writ petitions are dismissed.
Parties will pay and bear their own costs.
S.R. Appeal allowed.
| IN-Abs | Presidential Orders dated 27th April 1960 and the var ious orders and circulars issued pursuant thereto by the Home Ministry, P & T Department and Railway Board, compel ling attendance in "Hindi in service training" as part of duty and providing for penal consequences for non attendance were quashed by the Madras High Court as being inconsistent with section 3 of the as amended by Act 1 of 1968 which was law made by Parliament under article 343(3) of the Constitution.
In appeals to this Court on certificates, the appellant Union contended: (i) The instructions were aimed at promoting the policy of the constitutional revisions that Hindi should be the official language of the Union; (ii) No employee was placed at a disadvantage even if one could not qualify oneself in Hindi because no penalty was prescribed for an employee who did not attain any particular standard; and (iii) The Government was within its rights to issue orders obliging its employees to take training in Hindi language, so that ultimately when Hindi became the language of the Union they could perform their duty in an efficient and smooth manner.
The respondents reiterated their stand, namely, (i) Article 343 of the Constitution is transitional and directions of the President are limited to the period of 15 years from the commencement of the Constitution in view of the provision in Articles 343, 344(1), 344(2)(a) and (b), 344 (3), 344 (6) indicating that directions should relate to purposes of subclauses (a) to (e) of Article 344(2); (ii) When the embodied the field covered by Parliamentary legislation, the Presidential Order would not have any effect; (iii) The Presidential Order is inconsistent with section 9 (4) of the as amended in 1968 and to that extent void; and (iv) Under section 3(4) of the , persons were not to be placed at a disadvantage on the ground that they do not have proficiency in both the languages, namely, English and Hindi.
Dismissing the writ petitions and allowing the appeals, HELD: (1) The Presidential Orders dated 27th April 1960 and the various orders and circulars issued by Home Minis try, P & T Department and Railway Board pursuant thereto are valid.
[323H] (2) The Presidential Order was validly made and there has been and can be no challenge to it.
The President Order keeps in view the ultimate object to make the Hindi language as official language, but takes into note the circumstances prevailing in our country and considers it desirable that the change should be a gradual one and due regard should be given to the just claims and the interests of persons belonging to the non Hindi speaking areas.
The purpose of the Presidential Order is to promote the spirit of the Hindi language and to provide the Central Government employees the facilities to take training in Hindi language when they are in service.
[322F G] (3) The provisions in article 344 indicate that if there is a Second Commission at the expiration of ten years from the commencement of the Constitution, the President, may after consideration of the report, issue directions at the end of fifteen years.
The provisions contained in article 344(6) are not exhausted by using it once.
The President can use it on more than one occasion.
Further the effect of the power used cannot be said to be exhausted on the expiry of fifteen 315 years.
The Presidential Order which was issued in 1960 continues to be in force and cannot be said to have exhaust ed itself at the end of fifteen years from the commencement of the Constitution.
It would be strange that the steps necessary for the change should be given up at the.
expiry of fifteen years because what is said to be a switch over from English to Hindi has not been possible and Parliament provided by law for the continued use of the English lan guage for particular purposes specified in that law.
[322D F] (4) Article 344 is enacted for the purpose of achieving the object of replacing English by Hindi within a period of 15 years.
The ultimate object is provided in article 351 which fulfils the object of the spirit and development of the Hindi language and enlargement of the composite culture of India, Articles 343 and 344 deal with the process of transi tion.
Article 343(3) provides merely for extension of time for the use of English language after the period of 15 years.
The progressive use of the Hindi language is thereby not to be impaired.
Extending the time for the use of the English language does not amount to abandonment of progress in the use of Hindi as the official language of the Union.
[321G H, 322A B] (5) Article 344(6) provides that notwithstanding any thing in article 343, the President may after consideration of the report of the committee issue directions.
The non obstante clause in article 344(6) does not operate only against article 344(1) and (2) but against the entire article 344 for the reason that so far as transition is concerned, the direc tions under article 344(6) may continue.
Article 344(6) takes this objective and is intended to determine the pace of progress and to achieve the same.
[322B C] (6) The High Court failed to see the sequences of the Presidential Order and the .
It is erroneous to suggest that the Presidential Order of 1960 became invalid after the passing of the Act.
The Act merely continues the use of English language in addition to Hindi.
The Act does not provide anything which can be interpreted as a limitation on the vower of the President to issue directions under article 344(6) of the Constitution.
The Presidential Order has no inconsistency with the Act.
The non obstante provision in article 344(6) empowers the Presi dent.
[322G H, 323A B] (7) Parliament is legislating in a different field.
The field is the permissible use of English language in addition to Hindi during the period following 15 years because the change to Hindi could not be complete.
The trasitional period has exceeded 15 years.
The Presidential Order keeps in view the steps to replace the use of English in Hindi and the application of the Act and the Presidential Order is in different fields and has different purposes.
The Offi cial Languages Act is to continue the use of English lan guage after the expiry of 15 years, but Presidential Order, on the other hand is, to provide for the progressive use of Hindi language.
It confers an additional qualification on those who learn Hindi and does not take away anything from the Government employees.
Prizes are offered and there may be increase in pay.
These are incentives.
The measures taken for enforcement of provisions for learning Hindi by providing for absence from classes as breach of discipline and insisting on appearance at the examinations are steps in aid of fulfilling the object of what is described as in service, training in Hindi language.
Such enforcement of attendance in examinations for proficiency if necessary for completion of training.
The contention that the Presiden tial.
Order conflicts with section 3(4) of the Act is unsound.
The "In service training" of the employees is during hours of duty and free of cost.
Even if they fail, there is no penalty.
There is no treatment of unequals alike.[323 B H] [323B F] Murasoli Maran etc.
vs Union of India & Ors.
1972 Madras 40 reversed.
|
: Criminal Appeal No. 316 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 17th September, 1971 of the Patna High Court in Criminal Revision No. 2488 of 1971) and Criminal Appeal No. 317 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 7th October, 1971 of the Patna High Court in Criminal Revision No. 1491 of 1971.) D. Goburdhan and D.P. Sharma for the appellants in both the appeals.
S.C. Agrawala and V.J. Francis for respondents in both the appeals.
The Judgment of the Court was delivered by SHINGHAL, J.
The point for consideration in these appeals by special leave is whether affidavits, sworn or affirmed before magistrates who are not in seisin of the case under section 145 of the Code of Criminal Procedure, hereinafter referred to as the Code, could be read in evi dence under that section ? The High Court has held such affidavits to be inadmissible in evidence, in its impugned judgments dated September 17, 1971 and October 7, 1971, and that is why the present appeals by special leave have arisen at the instance of the aggrieved parties.
It is not in controversy that in the absence of any specific provision to the contrary in the Code, the affida vits have to be Sworn or affirmed in accordance with the provisions of the Oaths Act, 1873.
It is also not in con troversy that the Oaths Act of 1969 has no application to the controversy.
Sub section (1) of section 145 of the Code provides, inter alia, that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such docu ments, or to adduce, "by putting in affidavits, the evidence of such persons" as they rely upon in support of their claims.
The affidavits contemplated by the sub section are therefore evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of section 1 of that Act.
Chapter XLVI of the Code deals with miscellaneous mat ters including the affidavits referred to in sections 539, 539 A and 539 AA.
Section 539 deals with courts and persons before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed.
Section 539 A relates to 176 affidavits in proof of conduct of public servants, while section 539 AA relates to the authorities before whom affi davits to be used under section 510A or 539 A may be sworn or affirmed.
An affidavit under section 145 is not however of a formal character because it is meant to prove or dis prove the competing claim of the parties as respects the fact of actual possession of the subject or dispute.
There is thus no provision in the Code specifying the courts or persons before whom the affidavits referred to in section 145 have to be sworn and affirmed.
This has therefore to be done according to the general provisions relating to affidavits.
The definition of "affidavit" in section 3(3) of the (Act X of 1897) only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
But it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation It is here that section 4 of the Oaths Act comes into operation which provides as follows: "4.
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence;" Then follow clause (b) and a proviso, with which we are not concerned.
It is therefore clear that all courts and persons having by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmations, but they can do so only where they are otherwise acting" in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." So the court or person mentioned in clause (a) of section 4 of the Oaths Act can administer oath or affirmation to the deponent in an affidavit only if the, court or person in acting in the "discharge of the duties or in exercise of the powers im posed or conferred upon them respectively by law." In the present cases, the Magistrates concerned with the proceeding under section 145 of the Code were discharging the duties imposed and exercising the powers conferred by the Code, and they alone could administer the oaths and affirmations to the persons who made the affidavits, and not the magistrates who were not discharging any such duty or exercising any such power.
As the affidavits in the cases before us were admittedly not sworn or affirmed before Magistrates who were dealing with the disputes under section 145 of the Code, they were not proper affidavits and did not constitute evidence for purpose of section 145.
A similar view 177 has been taken in Nandial Ghost vs Emperor(1), Hemdan vs State Rajasthan and others(2), Govind vs State and oth ers(3), Krishna Chandra Naik vs Sk.
Makbul and others(4) Mahesh Thakur and others vs Lakshman Prasad Thakur and another(5) and State Madhya Pradesh vs Triveni Prasad(6) on which reliance has been placed by counsel for the respond ents.
We have gone through Ahmad Din vs Abdul Selem,(7) which has been cited with approval in Shambhu Nath Chopra vs State,(8) on which reliance. has been placed by counsel for the appellants.
We find however that in Ahmad Din 's case (supra) the Punjab High Court did not take proper notice of the requirement of section 4 of the Oaths Act that the courts and persons mentioned in clause (a) could administer oaths only "in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law.
" We have also examined the reasoning in Shambhu Nath Chopra 's case (supra), but the Delhi High Court there went wrong in holding that the evidence on affidavits referred to in section 145 of the Code was of a formal character within the meaning of section 510A so as to attract section 539 AA.
At the High Court has rightly held in the two impugned judgments that the affidavits were inadmissible in evidence as they were sworn before Magistrates who were never in seisin of the case, we find no force in these appeals and they are hereby dismissed.
P.H,P. Appeals dis missed.
(1) A.I.R. 1944 Cal.
(2) A.1.R. (3) A.I.R. 1969 All.
(4) A.I.R. 1970 Orissa 209.
(5) (1971) 19 Bihar, Law Journal 727.
(6) [1971] XVI M.P.L. J. 1059a (7) A.I.R. (8) A.I.R. 1970 Delhi 210. 13 1:158SCI/77 178 STATE OF KERALA vs M.T. JOSEPH November 25, 1976 [A. N. RAY, C.J., M.H. BEG AND JASWANT SINGH, JJ.] Kerala Land Reforms Act 1963 Kerala Government Land Assignment Act 1960 Sec.
8 Whether after a person ac quires title to Government land any further restrictions can be imposed.
The Government of Travancore sanctioned a scheme for the reclamation of the Vimbana Lake upon terms and conditions contained in at document dated 4 10 1963.
The document provided that one Joseph his father on payment of Rs. 10 '/ per acre which was to.
be recovered in 10 equal instalments would be given possession of certain tracts of land which they undertook to reclaim.
The said agreement was modified by an order dated 12 2 1941 and a fresh agreement was exe cuted in July 1941.
The said agreement provided that till tie remittances of all amounts due to the Government by way of land value are paid the executant shall have no right of alienation in respect of the property in question and that till then the property shall remain with the Government as sole owner.
It further provided that, until the entire land value is paid by the executant and until the assignment of the land and issue of Patta is completed, the executant undertook not to do any act which might reduce the value of tie property.
Joseph complied with the conditions laid down in the agreement and ;acquired full ownership rights by fulfilling the said terms.
In 1957, Joseph executed a deed of settlement of this land.
Thereafter Kerala Land Reforms Act of 1963 was passed so that the State Land Board started proceedings for the surrender of the land.
The question before the Land Board was whether the whole land should be treated as a single unit belonging to Joseph or whether it may be divided and treated as separate units of persons in whose favour Joseph made the settlement.
If the children of Joseph had acquired rights under the settlement each of them could be treated as entitled to compensation for a separate unit.
The State relied on section 8 of the Kerala Government Land Assignment Act 1960 which pro vides that all provisions, restrictions conditions and limitations contained ha any Patta or other document evi dencing an assignment of Government land shall be valid and take effect according to their tenure, any rule of law or usage to the contrary notwithstanding.
Dismissing the appeal, HELD: Tie terms in the 1941 agreement operated as a restraint upon the alientation of the rights only so long as all the amounts due to the Government by way of land revenue were not paid up.
Since, in the present case the entire amount had been paid by 10 yearly instalments before the year 1957 and since the Government had effected the mutation in its record acting upon the settlement of 1957 in favour of the children of Joseph, it could not be said that there was any patta or other documents containing any condition to which section 8 of the Act applied.
The chil dren derived rights under the deed of settlement and there fore, each of them is entitled to compensation for a sepa rate unit.
[180 C E] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
587 696 & 598 600 of 1976.
(Appeals by Special Leave from the Judgment and order dated 13th of July 1975 of the Kerala High Court in CRP Nos. 1188, 1227, 1250, 1272.
1278, 1279.
, 1284 1287, 1309, 1312 and 1386/73).
179 M.M. Abdul Khader, Adv.
and K.M.K. Nair, for the Appellants.
T.S. Krishnamoorthy Iyer and P.K. Pillai, for RR.
ex cepting R. 8 in CA 587/76.
The Judgment of the Court was delivered by BEG, J.
These appeals by special leave raise the ques tion whether the Kerala High Court had correctly interpreted and applied Section 8 of the Kerala Govt.
Land AsSignment Act, 1960 (hereinafter referred to as 'the Act ') to the cases before us.
This provision reads as follows: "8.
All provisions, restrictions, conditions and limitations over, contained in any Patta or other document evidencing an assignment of Government land shah be valid and take effect according to their tenor, any rule of law of usage to the contrary notwithstanding".
The facts upon which the provision was sought to be applied are these: On 23 October, 1939, the Government of Travancore sanctioned a. scheme for the reclamation of the Vimbang Lake upon terms and conditions which were set forth in a document dated 4 October, 1939.
The agreement provided that one M. T. Joseph and his father, on payment of Rs. 10/ per acre, which were to be recovered in ten equal instal ments, would be given possession of certain tracts of land which they undertook to reclaim.
For the first two years after what is called the "Registry" of the names of the two lessees no tax was to be levied.
The "Registry" was liable to be cancelled if adequate progress was not made within these two years.
It appears that the agreement was modified by an order dated 12 February, 1941 and a fresh agreement was executed in July 1941 by M.T. Joseph (now dead) who entered into possession of Keyal land, constructed the ring bunds at considerable expense, and brought the very large tracts of and to be reclaimed under paddy cultivation.
In June 1957, M.T. Joseph executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement.
The Act which is sought to be now applied was then passed.
After that, the Kerala Land Reforms Act of 1963.
was passed so that the, "State Land Board" started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act.
The only question now before us is whether, by an appli cation of section 8 of the Act, the whole land is to be treated as a single unit belonging to M.T. Joseph (since dead), on the dispositions made by M.T. Joseph, under the deed of settlement executed by him on 15th June, 1957, distributing the land among his children, resulted in sepa rate units for the purposes of compensation for the land surrendered.
If the children had acquired right under the deed of settlement each of them could be treated as entitled to compensation for a separate unit.
If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father could not change the ' ownership of the land in the constructive possession of the father.
We have been taken through the deed of agreement of July, 1941, with the Government.
which contains the follow ing term, the effect of which has to be determined: 180 "Till the remittance of all amount due to.
the Government by way tharavila (land value) etc.
the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner.
The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as no default is made in the payment of instalment and obtain receipt therefor.
Until the entire tharavila (land value under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered.
from the executant he shall not put forward any claim for improvements etc.
and the property shall be surrendered to Government".
It is clear to us that this term in the agreement oper ated as a restraint upon the alienation of rights only so.
long as.
all the amounts due to the Government as Tharavila had not been paid up.
The whole amount had to be paid up in ten yearly instalments.
It has been paid up before 1957.
Furthermore, as the Kerala High Court found, the settlement of land on 15th June, 1957 had not merely been given effect to by a mutation in the relevant Government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M.T. Joseph.
Hence, it could not be said that there was any patta of other document containing any condition to which Section 8 of the Act could apply.
We find, from the Judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were: also. argued.
One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the. land from the Government under the scheme for its reclama tion.
We fail to see how a question of adverse possession arises here when the Government itself recognises the rights of the children of M.T. Joseph in the pattas executed by it in their favour.
The High Court recorded the following findings about the Government acting on the terms of the settlement of 15th June, 1957, the correctness of which had not been challenged before us: "This settlement deed has been recognised by the Government mutation has been effected in the names of the children and pattas have also. been issued to them.
It has been further stated on behalf of the revision petitioners (the heirs of the said Joseph and those who took under the settlement deed dated 15.6.1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares sepa rately and agricultural income tax collected on the income of the properties of each of the sharers".
We do not think it is necessary to go into any other question.
The High Court was of opinion that some facts had still to be as 181 certained when the case goes back to the Land Board for proceeding on the footing determined by the High Court.
We think that we should make it clear that matters to.
be still determined could not, in view of our finding, involve deter mination of any question of adverse possession of the claimants, the children of M.T. Joseph.
For the reasons given above, we dismiss these appeals.
We make no order as to costs.
P.H.P, Appeals dis missed.
| IN-Abs | Proceedings under section 145(1) of the Criminal Proce dure Code 1898 were going on between the parties.
The appellants filed affidavits before the Magistrate.
The said affidavits were not sworn before the Magistrate who was in seisin of the case but were sworn before some other Magis trate.
It was contended before the Magistrate by the re spondents that the said affidavits were not admissible in evidence.
The High Court held those affidavits to be inad missible.
Dismissing the appeal by special leave, HELD: (1) In the absence of any specific provision to the contrary in the Criminal Procedure Code the affidavits have to be sworn or affirmed in accordance with the provi sions of the Oaths Act, 1873.
Section 145(1) of the Code provides that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of their claim.
The affidavits contemplated by the sub section are, therefore, evidence for purposes of proceedings before the Magistrate concerned even though the Evidence Act does not apply to them.
[175G H] (2) There is no provision in the Code specifying the courts before whom the affidavits referred to in section 145 have to be sworn and affirmed.
The definition of affidavit in section 3(3) of.the only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
Section 4 of the Oaths Act reads as under: "4.
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence;" It is clear that all Courts and persons having by law or consent of parties authority to receive evidence are autho rised to.
administer oaths and affirmations, but they can do so only where they are otherwise acting in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law.
In the present case the Magistrate concerned with the proceedings under section 145 of the Code was discharging the duties imposed and exercising the powers conferred by the Code and he alone could adminis ter the oaths and affirmations to the persons who made affidavits and not Magistrates who were not discharging any such duty or exercising any such power.
[176A H] Nandial Ghose vs Emperor AIR 1944 Cal. 283, Hemdan vs State of Rajasthan & Ors., AIR 1966 Raj. 5; Govind vs State and others AIR 1969 All. 405; Krishna Chandra Naik vs Sk.
Makbul and others AIR 1970 Orissa 309; Mahesh Thakur and others vs Lakshman Prasad Thakur and another (1971) 19 Bihar Law Journal 727 and State of Madhya Pradesh vs Trivedi Prasad (1971) XVI H.R. Law journal 1059 approved.
175 Ahmad Din vs Abdul Salem AIR and Shambhu Nath Chopra vs State AIR 1970 Delhi 210, over ruled.
|
ivil Appeal No. 1020 of 1975.
(Appeal by Special Leave from the Judgment and Order dated the 18 4 1975 of the Maharashtra State Co op.
Appel late Court in Appeal No. 54 of 1975.) J. L. Nain, U. R. Lalit, and V. N. Ganpure, for the appel lant.
V.M. Tarkunde, Sharad Manohar, P.H. Parekh and Miss Manju Jetley, for respondent No. 1.
M.C. Bhandare, Mrs. section Bhandare, N.S. Narasimhan, K.C. Sharma, ,A. K. Mathur and ,4.
K. Sharma, for respondent No. 2. 343 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is from the judgment dated 18 April 1975 of the Maharashtra State Co operative Appellate Court.
The question for consideration in this appeal is whether a mortgagor can exercise his right of redemption after a mortgagee under an English Mortgage with power to sell mortgaged property without the intervention of the court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction.
The appellant is the auction purchaser.
The respondents are Flora Co operative Housing Society in liquidation the mortgagors (hereinafter referred to as the Society) and the Maharashtra Co operative Housing Finance Society Ltd., the mortgagee (hereinafter referred to as the mortgagee).
In 1964 the Society was registered as a Housing Society with 12 members.
The paid up capital of the Society was Rs.21,000/ .
The Society wanted 12 flats to be constructed in one structure of ground and two upper floors.
The Society purchased plot No. 153 in Santa Cruz at Bombay, measuring 1002 sq. yards.
The price was Rs.1,02,000/ .
In 1966 the Society mortgaged the land and the incomplete structure in favour of the mortgagee.
The mort gage was for the sum of Rs.70,000/ .
It was an English mortgage.
In 1968 the mortgagee advanced a further sum of Rs.42,000/ .
In 1966 Fair Deal Builders entered into a contract with Society to build.
The work was stopped.
Thereafter in 1967 the Society entrusted the work to Maharaja Builders.
In 1968 the contract with Maharaja Builders was terminated.
The work was given in 1969 to Kamal Construction Company, who abandoned it in incomplete stage.
On diverse dates between 29 August 1967 and 29 November 1970, notice was given by the mortgagee to the Society for non payment to the mortgagor and to sell the property by public auction.
On 9 March 1971 the Assistant Registrar of Co opera tive Societies, Maharashtra, appointed a Special Liquidator of the Society under section 102 of Maharashtra Co operative Societies Act, 1960.
The Assistant Registrar communicated the order of appointment liquidator to the mortgagee on 22 April 1971.
The order of appointment of a liquidator was published in Maharashtra Government Gazette on 29 April 1971.
The mortgagee advertised through Government auc tioner for public auction of the property.
The public auction was held on 14 April 1971.
The claim was for Rs.1,22,888.22 paise.
The appellant was declared the highest bidder for Rs.1,31,001/ .
The terms of sale inter alia were that 25 per cent was to be paid in advance and the balance in 30 days.
The sum of Rs.33,000/ was paid as 6 1546SCI/76 344 25 per cent advance and the balance purchase price of Rs.98,001/was paid to attorneys of the mortgagee.
The auction purchaser took possession on 17 April 1971.
On 13 August 1971 the Society filed a dispute before the Officer on Special Duty under the Maharashtra Co operative Societies Act against the auction purchaser and the mortga gee for injunction against completing sale.
The Society obtained an ex parte injunction restraining transfer.
On 29 September 1971, the interim injunction was vacated.
Thereafter the Society filed an appeal against the said order before the Appellate Tribunal.
In the meantime the appellant filed a writ petition in the Bombay High Court under Article 227 of the Constitution.
On 16 June 1972 there was an interim order by the High Court in the writ petition.
The Society undertook not to dispose of property until disposal of dispute.
Both par ties were allowed to keep watchmen.
The Society borrowed a sum of Rs.1,31,000/ and paid the same to the mortgagee on 15 October 1972.
On 16 January 1975 the Officer on Special Duty delivered judgment.
He held that the dispute was maintain able under section 91 of the Maharashtra Co operative Socie ties Act.
The Society was held not competent to challenge the auction sale held on 14 April 1971.
It was also held that the validity of auction was not affected.
The mortgagee was held entitled to exercise power of sale as a secured creditor without being affected by the winding up order against the Society.
It was also held that the mortgagee did ' not commit any breach of the statutory provisions of section 69 of the .
The sale was pot vitiated.
It was found that there was no irregularity at the auction and there is no ground for setting aside the sale.
The society was entitled to redeem the proper ty because the conveyance was not complete.
The auction purchaser filed before the Maharashtra State Cooperative Appellate Court an appeal against the said order.
In appeal the plaint was allowed to be amended and prayer for redemption was allowed to be introduced.
On 18 April 1975 the Maharashtra State Cooperative Appellate Court dismissed the appeal and held that the dispute as initiated by the Society fell within the ambit of section 97 of the Maharashtra Cooperative Societies Act.
The Appel late Court further held that there was no complete sale within the meaning of section 69(3) of the and the equity of redemption was therefore not lost.
It was further held that the auction price was grossly inadequate.
The auction sale was not a sale after a fair competition.
The Mortgage Deed provided inter alia as follows : 345 "it is hereby agreed and declared that it shall be lawful for the mortgagees at any time without any further consent on the part of the mortgagors to sell the said mortgaged premises . .
The aforesaid power shall be deemed to be a power to sell or concur in selling the said mortgaged premises in default of payment of the mortgage money without the intervention of the court within the meaning of section 69 of the .
" Clauses (7), (8) and (33) in the Conditions of Sale may be referred to.
Clause (7) provided as follows.
Upon payment of the balance Of the purchase price, the purchaser shall be enti tled to a conveyance from the vendors.
The vendors shall in the conveyance of the property purchased by purchaser give the usual covenant required of a limited owner against encumbrances.
The vendors shall give no other covenant required of an absolute of full owner.
The vendors shall not be required to procure the consent of the mortgagors or of any other person in the conveyance.
Clause (8) was as follows.
After payment of the balance of the purchase money the purchaser shall be entitled to the rents and profits of the said property.
The vendors as the mortgagees are not in possession of the property and will not do anything to deliver possession of the proper ty to the purchaser.
The vendors as the mortgagees shall not be able to give vacant or symbolic possession of the property to the purchaser.
On payment of the balance of the purchase price the purchaser shall at his own cost be at liberty to take such steps as the purchaser may deem neces sary for obtaining possession of the property from the mortgagors.
Clause (33) provided as follows.
If the mortgagors shall deposit all the amounts due to the vendors as mortga gees in court or pay the same to the vendors or their attor neys between the date of sale and the completion thereof and if as a result thereof the vendors have to reconvey the property to them or if the vendors cannot thus proceed with the sale and the sale is not completed on that account the vendors shall return the said deposit to the purchaser without any interest and/or costs and the vendors as such mortgagees shall not be held liable for any damage.
Counsel for the appellant advanced these contentions.
First, under section 69 of the a mortgagor confers on the mortgagee a power of sale through Court Or without intervention of court.
The power of sale is of the entire legal estate of the mortgagor.
Second, when such a power is conferred it is agency coupled with interest under section 202 of the , the agency cannot be revoked without payment to mortgagee.
Third,if the power is acted upon revocation even on payment cannot nullify acts pursuant to powers.
Reliance was placed on sections 203 and 204 of the .
Fourth, if the act done pursuant to power is that the property is put up for sale and it is knocked down it is an act done by the mortgagee for mortgagor In 346 other words it is as if an act done by the mortgagor.
The, sale pursuant to the power is a subsequent act within the meaning and this subsequent act will extinguish the mortgagor 's right of redemption.
Fifth, in a suit for specific performance by auction pur chaser the purchaser will be entitled to specific perform ance because it is a sale by mortgagor.
Counsel for the appellant relied on two English deci sions.
These are: Waring (Lord) vs London and Manchester Assurance Co. (1), and Property & Bloodstock Ltd. vs Emer ton(2) in support of the propositions that the mortgagor 's right to redemption would be extinguished when the mortgagee exercised the power of sale and the third party entered into a binding contract to purchase the property.
The English decisions are based on the provisions of the English Law of Property Act.
The provisions create a statu tory power of sale, which gives to a mortgagee power to sell the mortgaged property, and it means that the mortgagee has power to sell out and out by private contract or by auction, and subsequently to complete the conveyance.
The English decisions are that if a mortgagee exercises power under section 100(1)(i) of the Law of Property Act, 1925, to sell the mortgaged property by public auction or by private contract it is binding on the mortgagor before completion unless it is proved that he exercised it in bad faith.
It was said in the Property & Bloodstock case (supra) that the contract for sale by the mortgagees to the pur chaser precludes the mortgagor from his right of redemp tion pending completion even if the property is sold subject to one or more conditions.
The English decision naturally notices distinction between condition precedent and the terms of contracts of sale, namely, conditions dealing with matters of title for carrying out the contract.
The mere fact that the label "condition" happens to be attached to conditions does not preclude its being in the latter catego ry of "condition" or matter of title.
The condition that the sale is subject to the reversioner 's licence being obtained where necessary. is held in the English decision to be commonly regarded as no more than a term of the contract relating to title.
The provisions in the relevant to the purpose of present appeal are sections 54, 60 and 69.
Under section 54 of the , sale is a transfer of ownership in exchange for a price paid or promised or part paid and partpromised.
Such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a rever sion or other intangible thing can be made only by a regis tered instrument.
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
An English Mortgage is defined in section 58(e) of the .
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged pro (1) (1935) Chancery 310.
(2) (1968) L.R. Chancery 94.
347 perty absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgagemoney as agreed, the transaction is called an English mortgage.
The Rights and Liabilities of Mortgagor are dealt with in section 60 of the .
It is that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagemoney, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and (c) at the cost of the mortgagor either to re transfer the mortgaged property to him or to such third person as he may direct, or to execute and to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.
There is a proviso that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.
The right conferred by section 60 of the Trans fer of Property Act is called a right to redeem.
Therefore, the said section 60 provides for a right of redemption provided that the right has not been extinguished by the act of parties.
Section 69 of the deals with mortgagees ' power of sale.
Under the said section 69(1)(c), a mortgagee has power of sale without the intervention of the Court where power is conferred by the mortgage deed and the mortgaged property or any part thereof was on the date of the execution of the mortgage deed, situate within the towns of Calcutta, Madras, Bombay or in any other town or area which the State Government, may, by notification in the official Gazette, specify.
The principal question in this appeal is whether the right to redemption has been extinguished by any act of the parties.
The English decisions are based on the provisions of the Law of Property Act, 1925.
In England sale is ef fected by the contract of sale, and in India an agreement for sale is not a sale or transfer of interest.
In England, a mortgagee gets an equitable interest in the property.
Under the English doctrine a contract of sale transfers an equitable estate to the purchaser.
The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee.
In India there is no equity or right in property created in favour of the purchaser by the contract between the mortgagee and the proposed purchaser.
In India, there is no distinction between legal and equitable estates.
The law of India knows nothing of that distinction between legal and equitable property in the sense in which it was under stood when equity was administered by the Court of Chan cery in England.
Under the Indian law, there can be but one owner that is, the legal owner.
See Rani Chhatra Kumari vs Mohan Bikram (1) (1) (1931) 58 I.A. 279.
348 A contract of sale does not of itself create any inter est in, or charge on, the property.
This is expressly declared in section 54 of the .
See Rambaran Prasad vs Ram Mohit Hazra(1) & Ors.
C) The fidu ciary character of the personal obligation created by a contract for sale is recognised in section 3 of the and in section 91 of the Trusts Act.
The personal obligation created by a contract of sale is de scribed in section 40 of the as an obligation arising out of contract and annexed to the owner ship of property, but not amounting to, an interest or easement therein.
In India, the word "transfer" is defined with reference to the word "convey".
The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in land.
Section 205 of the Law of Property Act in England defines: "Conveyance" includes a mortgage, charge, lease, assent, vesting declaration, vesting instru ment.
The word "conveys" in section 5 of the transfer of Property Act is used in the wider sense of conveying owner ship.
The right of redemption which is embodied in section 60 of the is available to the Mortga gor unless it has been extinguished by the Act of parties.
The combined effect of section 54 of the Transfer of Proper ty Act and section 17 of the Indian Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption.
In India it is only on execution of the conveyance and registration of transfer of the mortgagor 's interest by registered instru ment that the mortgagor 's right of redemption will be extin guished.
The conferment of power to sell without interven tion of the Court in a Mortgage Deed by itself will not deprive the mortgagor of his right to redemption.
The extinction of the right of redemption has to be subsequent to the deed conferring such power.
The right of redemption is not extinguished at the expiry of the period.
The equity of redemption is not extinguished by mere contract for sale.
The mortgagor 's right to redeem will survive until there has been completion of sale by the mortagee by a registered deed.
In England a sale of property takes place by agreement but it is not so in our country.
The power to sell shall not be exercised unless and until notice in writing requir ing payment of the principal money has been served on the mortgagor.
Further section 69(3) of the Transfer of Proper ty Act shows that when a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale.
Therefore, until the sale is complete by registration the mortgagor does not lose right of redemp tion.
It is erroneous to suggest that the mortgagee is acting as the agent of the mortgagor in selling the property.
The mortgagor exercises his right under a different claim.
The mortgagee 's right is different from, (1) ; 349 the mortgagor 'section The mortgagee exercises his right under a totally superior claim which is not under the mortgagor, but against him.
In other words, the sale is against the mort gagor 's wishes.
Rights and interests of the mortgagor and the mortgagee in regard to sale are conflicting.
In view of the fact that only on execution of convey ance, ownership passes from one party to another it cannot be held that the mortgagor lost the right of redemption just because the property was put to auction.
The mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of the Registration Act.
The decision in Abraham Ezra Issac Mansoor vs Abdul Latiff Usman(1) is correct law that the right to redeem a mortgage given to a mortgagor under section 60 of the , is not extinguished by a contract of sale of the mortgaged property entered into by a mortga gee in exercise of the power of sale given to him under the mortgage deed.
Until the.
sale is completed by a registered instrument, the mortgagor can redeem the mortgage on payment of the requisite amount.
The Madras decision reported in Meenakshi Velu & Ors.
vs Kasturi Sakunthala & Ors.(2) on which counsel for the appellant relied is contrary to the view expressed in Ellappa Naiker and others vs Sivasubramania Maniagaran,(3) and the aforesaid Bombay decision.
We are entirely in agreement with the Bombay decision.
The Madras decision Meenakshi Velu & Ors.
vs Kasturi Sakun thala & Ors.
(2) which holds a contrary view on which coun sel for the appellant relied is wrong.
For the foregoing reasons, the appeal is dismissed with costs to respondent no 1.
P.H.P. Appeal dismissed.
(1)I.L,R, (2) 1.1 .R, (1967) 3 Madras 161.
(3) (1936) 71 Madras Iaw Journal 607.
| IN-Abs | In 1964, respondent No. 1 Society was registered as a Housing Society.
The Society wanted 12 plots to be con structed for its 12 members.
The Society, therefore, pur chased a plot of land.
In 1966, the Society mortgaged the land and the incomplete structure in favour of respondent No. 2.
In March, 1971, the Special Liquidator of the Socie ty was appointed under section 102 of the Maharashtra Co operative Societies Act, 1960.
The mortgagee after demand ing the dues from the mortgagor advertised the public auc tion for the sale of the property.
In the auction sale the appellant was declared as the highest bidder.
The auction purchaser took the possession of the land and the incomplete structure.
Society filed a dispute before the Officer on Special Duty under the Maharashtra Co operative Societies Act against the auction purchaser and the mortgagee praying for an injunction against the completion of the sale.
The Society in the meanwhile paid the mortgage money to the mortgagee.
The Officer on Special Duty delivered his judg ment in January 1975 and held that the Society was entitled to redeem the property because the conveyance was not com plete.
The appellant filed an appeal before the Maharashtra State Co operative Appellate Court.
In the appeal, plaint was allowed to be amended and a prayer for redemption was allowed to be introduced.
The appellate Court held that there was no complete sale within the meaning of section 69(3) of the and the equity of redemption was, therefore, not lost and that the auction price was grossly inadequate and that the sale was not after a fair competition.
One of the conditions of auction sale was that if the mortgagor deposited the mortgage money in court between the date of the sale and completion thereof and if as a result thereof the mortgagee was to reconvey the property to the mortgagor the auction purchaser Would be entitled to the refund of the amount paid without any inter est and/or cost.
In an appeal by Special Leave the appellant contended: (1) When under section 69 of the a mortgagor confers on the mortgagee a power of sale through court or without intervention of court, the power of sale extends to the entire legal estate of the mortgagor.
(2) When such a power is conferred it is agency coupled with interest under section 202 of the .
If the power is acted upon revocation even on payment of mortgage money cannot nullify acts already done pursuant to the said powers.
(3) Knocking down at an auction sale by the mortgagee pursuant.
to the power of sale extinguishes the mortgagor 's right of redemption.
(4) In a suit for specific performance by auction pur chaser, the purchaser will be entitled to specific perform ance because it is a sale by mortgagor.
Dismissing the appeal, 342 HELD: (1) Under section 69(1)(c) a mortgagee has power to sell without intervention of the court where power is con ferred by the mortgage deed and the mortgaged property or any part thereof was on the date of the execution of the mortgage deed situated in certain big towns.
[347D E] (2) In India the word "transfer" is defined with refer ence to the word ,"convey".
The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in the,land.
Section 205 of the Law of Property Act in England defines "conveyance as including mortgage, charge, lease, assent vesting declara tion, vesting instrument".
The word "conveys" in section 5 of the and section 17 of the Indian Registration Act is that contract for sale in respect of immovable property of the value of more than Rs.100 without registration cannot extinguish the equity of redemption.
In India it is only on execution of the conveyance and regis tration of transfer of the mortgagor 's interest by regis tered instrument that mortgagors right of redemption will be extinguished.
The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not derrive the mortgagor of his right to redemption.
The extinction of the right of redemption has to be subsequent to the deed conferring such power.
The right of redemp tion is not extinguished at the expiry of the period.
The equity of redemption is not extinguished by mere contract for sale.
[348B, D E] Abraham Ezra Issac Mansoor vs Abdul Latif Usman I.L.R. 1944 Bombay 549, approved.
Meenakshi Velu & Ors.
vs Kasturi Sakunthala & Ors.
I.L.R. , overruled.
Ellappa Naiker and Ors.
vs Sivasubramania Manisaran , approved.
(3) Under the English doctrine, a contract of sale transfers an equitable estate to the purchaser.
In India there is no equity or right in property accrued is favour of the purchaser by the contract between the mortgagee and the proposed purchaser.
In India there is no distinction be tween legal and equitable estates.
In India there can be but one owner i.e. legal owner.
[347G H] Rani Chhotra Kumari vs Mohan Bikram (1931) 58 I.A. 279 and Rambaran Prasad vs Ram Mohit Hazra & Ors.
(1967) I SCR 293, followed.
(4) Under section 100(1)(i) of the Law of Property Act, 1925, if a mortgagee exercises power to sell the mortgaged proper ty by public auction or by private contract it is binding on the mortgagor before completion of the sale unless it is proved that the power was exercised in bad faith.
The English decisions are based on the said provision of the English Law of Property ,Act and, therefore, they are not applicable to India.
[346 B D] Waring (Lord) vs London and Manchester Assurance Co. (1935) Chancery 310 and Property & Bloodstock Ltd. vs Emer ton (1968) L.R. Chancery 94 distinguished.
|
Civil Appeal No. 424 1971.
Appeal from the Judgment and Order dated the 22 2 1971 of Madras High Court in W.P. No. 3125 of 1970.
M. Natesan, and (Mrs).
section Gopalakrishanan, for the Appel lant.
K.S. Ramamurthi, A. T.M. Sampath, M.M.L. Srivastava and E.C.Agarwala, for Respondent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This appeal, without any merit, deserves to be dismissed without much ado.
The few facts of the case are that the appellant and the respondent, both operators Of stage carriages, applied for a permit on an 86 Km.
route.
Marks were awarded to both under the relevant Motor Vehicles Rules to settle their compara tive merit.
The appellant secured 8.79 marks and the re spondent 12.08.
The latter thus secured an easy arithmeti cal victory over the former and the sense of the scheme would have ordinarily led to the award of the permit to the respondent.
However, the Road Transport Authority preferred the candidate with the lesser marks on the compassionate ground that the rival with the larger marks had already got a permit a couple of months before, on an overlapping route of 53 Km.
On appeal, the Appellate Tribunal set aside this award and granted 10 1546 SCI/76 408 the permit to the one who had more merit.
This has been affirmed throughout, repelling the challenge by writ peti tion.
The aggrieved appellant contends that his permit should not have been set aside, the ground being that the respondent had got an earlier permit on a part of the route.
We are not persuaded about this ground being good.
Permits cannot be equated with distribution of patron age.
We must remember that public interest is at stake when public transport services are operated.
The scheme of the statute, viz., the is that he who can serve the travelling public best, is to be chosen as the permit holder.
Considerations of grace, charity and compas sion at the expense of public interest are an act of unfairness to the Act.
The conclusion, therefore is that the appellant 's claim was rightly rejected and the respond ent 's award was rightly made.
We dismiss the appeal but in the circumstances without costs.
P.H.P. Appeal dis missed.
| IN-Abs | The appellant and the respondent applied for a permit of stage carriages.
The respondent secured higher marks than the appellant.
The Road Transport Authority preferred the appellant on the compassionate ground that the respondent already had another permit on a route which was partly over lapping over the route in question.
On an appeal the Appellate Tribunal set aside the order of the Transport Authority and granted the permit to the respondent.
Dismissing the appeal, HELD: Permits cannot be equated with distribution of patronage.
Public interest is at stake when public trans port services are operated.
The scheme of the Motor Vehi cles Act and the Rules is that he who can serve the travel ling public best is to be chosen as the permit holder.
Considerations of grace, charity and compassion at the expense of public interest are an act of unfairness to the Act.
[408B C]
|
Civil Appeals Nos.
11781180/76.
Appeals by Special Leave from the Judgment and Order dated 22 9 1976 of the Madras High Court in Writ Petition Nos.
3059/ 75, W.A. No. 339/76 and W.P. No. 14 respectively.
Y.S. Chiale, V. Subramanyam and Vineet Kumar for the Appellant in C.A. 1178/76.
K.S. Ramamurthi, M.N. Rangachari, A.R. Ramanathan, K. Thimmalai, Jayaraman, M.M.L. Srivastava and A.T.M.S. Sam path for the Appellant in CAs.
1179 1180/76.
V.P. Raman, Addl.
Gen. (In CAs.
1178 to 1180/76, D.N. Misra, J.B. Dadachanji for Respondent No. 2 in CAs.
1178 & 1180 of 1976 and Respondent 2 in C.A. 1179/76.
K. Parasaran, Adv.
Tamil Nadu, ,A.V. Rangam, T. Sathiadev and (Miss) A. Subhashini for Respondents in CAs.
1179 80 except Transport Corporation.
K. Jayaram, V.T. Gopalan and K. Ram Kumar for the Appli cant and Intervener in C.A. 1178/76.
The Judgment of A.N. Ray C.J., and Krishna Iyer, J. was delivered by Krishna Iyer, J.M.H. Beg, J. gave a separate concurring opinion.
KRISHNA lYER, J. A terse presentation of the twin con tentions canvassed before us, in these appeals by special leave, after discomfiture at two tiers below, highlights the importance of the economic role of the State in undertaking, with legal preferences, strategic services vital to the community.
The keynote thought underlying our decision is that the jural postulates of the old competitive order have to yield place to the new values of developmental jurispru dence.
Public law, in India, responding to the public needs and the State 's functional role mandated by the Constitu tion, has evolved new approaches to old problems and given up dogmas which once prevailed during laissez faire days but now have become obsolete because of the 'welfare ' economy which has been nurtured.
This radical change in jural 394 perspectives has its impact on canons of statutory construc tion and on verdicts about the vires of legislation.
All these generalities acquire appropriate application in the present cases which arise under the (Act IV of 1939) (the Act, or short) from challenges before the High Court without avail, by private operators, of the permit granted to the State Transport Undertaking (STU) by the transport tribunals.
The validity of r. 155A of the Motor Vehicles Rules framed under section 68 of the Act is in issue.
The core of counsel 's submissions is two fold: (1) Is rule 155A, assigning five marks for a State undertaking, not family violative of s 47 of the Act? Does the later amendment to the proviso to section 47 giving preference to State transport systems, other things being equal, impliedly repeal, as contrary to its content, rule 155A which gives better advantage to the favoured category, fulfilling the spirit of the statutory amendment more tellingly ? We will proceed further after stating the circumstances leading up to the writ petition before the High Court and the appeal before us.
The appellants, who have come by special leave to this Court, are private stage carriage operators.
We will relate the facts of one case (Civil Appeal No. 1178 of 1976) the decision in which will settle the fate of the rest, the decisive point of law being identical.
The permit of the appellants but on the route Salem to `rode was to have expired on September 13, 1974 and so he applied for renewal under section 58(2) of the Act.
The respondent State Transport Undertaking objected to the renewal of the permit urging preferential grounds in its own favour.
The State undertak ing 's claim was upheld on the score that it secured higher marks computed with the aid of r. 155 A. Baulked in his application for renewal, the appellant challenged the order before the Appellate Tribunal.
Apprehending an adverse decision on the strength of r. 155 A, he filed a writ peti tion before the High Court praying that a direction be issued to the Appellate Tribunal to dispose of his appeal without relying on r. 155 A.
The plea was negatived by the learned Single Judge and a Division Bench dismissed the appeal therefrom.
Aggrieved by the concurrent findings the appellant has assailed before us the vires of r. 155 A as obnoxious to public interest excluding, in some measure, a fair competition and being contrary to the proviso to.
section 47 (1 ) of the Act.
A meaningful discussion of the points debated at the Bar has to begin with a brief outline of the scheme of the in the branch relating to grant of permits for transport vehicles (Chapter IV).
All transport vehicles, before they can be plied in any public place, require per mits under section 42 and even government vehicles, if put to commercial use, have to possess permits.
Applications are made for stage carriage permits under section 57 and the consid erations germane to their grant are set out in section 47 of the Act.
It is common ground, and decisions are legion in support thereof, that the interest of the public generally is the super consideration decisive of the award ' of permits when there is a plurality of applicants.
He who can serve the public best gets the permit to ply the stage carriage from the quasi judicial authority charged with the responsi bility for choice.
We may read the relevant part of section 47(1) here: 395 (Krishna Iyer, J.) "47.
Procedure of Regional Transport Authority in considering application for stage carriage permit, (1) A Regional Transport Authority shall, in considering an application for a stage car riage permit, have regard to the following matters, namely : (a) the interest of the public generally; X X X X Provided that other conditions being equal, an application for a stage carriage permit from any State Transport Undertaking or a Cooperative Society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.
X X X X" The interest of the public generally, is often times too vague and, generally, the exercise of discretion deserves to be canalised to guide the statutory bodies and to facilitate better appreciation by the applicants of the claims that may ordinarily be considered by transport tribunals.
From this angle, the Tamil Nadu State has framed rules.
expressly subordinated to the paramount factor of public interest which shall weigh with tribunals when adjudging among com peting claimants. 'This Court, in Kumaraswamy(1), summed up the purport of the rule thus: "The system of marks, under the Rules framed under the Act by the Tamil Nadu Govern ment, prescribes the various qualifications for applicants for permits for passenger transport under the .
Rule 155 A crystallises these considerations and describes them as guiding principles for the grant of stage carriage permits.
The rule itself emphasizes what is obvious, that the paramount consideration of the interest of the public, as enshrined in Section 47(1), must be given full weight while awarding per mits.
That means to say that the various factors set out in rule 115 ,4 are subject to section 47(1).
This is clarified by sub rule (4) of Rule 155 A, which runs thus: "After marks have been awarded under sub rule (3), the applicants shall be ranked according to the total marks obtained by them and the applications shall be disposed of in accordance with the provisions of sub section (1 ) of section 47.
" There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the travelling public is highlighted while evalu ating the relevant worth of the various claim ants.
" Rule 155A(3)D(1) offends against the prescription in the proviso (1) 396 to section 47(1 ) and is void, according to counsel for the appellants.
Before examining this alleged vice, we may as well read sub rule (3) of Rule 155 A to the extent neces sary: "(3) After eliminating in the manner laid down in subrule (2), the applicants who are unsuitable, marks shall be awarded for assessing the different qualifications of the remaining applicants for the grant of permits as follows : (A) Residence Two marks shall be award ed to the applicant who has his principal place of business or permanent residence at either terminus or on the route.
Explanation.
The term 'principal place of business ' shall mean only the registered headquarters of the company and not the resi dence of the Managing Director or any other Director of the Company.
(B) Technical qualification (for Owner or Managing Director).
Two marks shall be awarded to the applicant if the Owner or the Managing Director of the organisation has technical qualification which may be useful to run the transport service efficiently.
(C) Workshop facilities.
Two marks _shall be awarded to the applicant who is in possession of workshop facilities as given in Explanation under item (2)(iv).
(D) (i) Five marks shall be awarded to the applicant falling within the proviso to clause (c) of section 62 A of the Motor Vehi cles Act, 1939, i.e., State Government, Cen tral Government or any Corporation or Company owned by the Central Government or State Government.
(ii) The applicant who operates not more than nine stage carriages excluding spare buses, shall be awarded marks as follows : (1 ) Applicant operating one to three buses 4 marks.
(2) Applicant operating four to six buses 3 marks.
(3) Applicant operating seven to nine buses 2 marks.
Provided that if a new entrant has made an application for a short route other than town service route, no marks shall be awarded to any applicant under clause (B), (C) and (D) (ii).
" The ground of invalidation urged is that there is no justification for grant of 5 marks to an applicant falling within r. 155A (3)(D)(1) solely for the reason that it is owned by the State Government.
Ownership is irrelevant and the sacrifice of public interest at the altar of government interest is contended to be a flagrant partiality shown by the subordinate legislation in the teeth, and transgressing the limits, of the equal consideration implicit in section 47(1 ).
second argument 397 (Krishna Iyer, J.) is that the proviso to section 47(1), as amended by Act 48 of 1974 (Tamil Nadu Amendment Act) gives preference to a State Transport Undertaking, other things being equal, and im pliedly provides against any larger preference being shown to such an undertaking in the guise of rules.
For this reason, the generosity of the rule being contrary to the narrow preference in the proviso to the section (brought in by later amendment), the former cannot co exist with the latter and must be taken as impliedly repealed.
Although this amendment to the Act was later than the promulgation of the rules, the law as it stands today is the basis of our judgment.
Thus the two question formulated right at the beginning of the judgment arise in the setting of facts and law we have broadly described above.
It was urged by Shri Chitale, followed by Shri Rama murthy, in two of the several matters heard together, that Part IVA provided for monopolistic award of permits to the State Transport Undertaking but Part IV put everyone on a competitive basis, regardless of whether one was a State undertaking or not, the most meritorious winning the battle in a free market economy.
If the soul of Part IV were free competition, not 'rigged ' selection, aid in the shape of extra marks given by rules had to be withdrawn and every applicant had to run without anyone being given a handicap in the race.
State undertakings being awarded 5 grace marks for no reason except that they belonged to the State was a gross violation of the spirit and letter of section 4 7 (1 ) which postulated the promotion of public interest as the basic consideration and the selection of the ablest as the criterion for choice.
Both counsel, in their overlapping arguments, stressed that there was a negative mandate in the proviso to section 47(1) not to prefer a State undertaking save where other conditions were equal and if the State undertak ing was unable to attain the condition of equality with another, its claim could not be promoted by the artifice of assignment of marks to a State undertaking qua State under taking.
Public law, in our pie bald economy and pluralist socie ty, responds to societal challenges and constitutional changes.
TO miss the ideological thrust of our Constitution and the economic orientation of our nation while construing legislation relating to public law and scanning them for their validity is to fail in understanding the social phi losophy that puts life and meaning into the provisions of the Act.
The law, being realistic, reckons with the social ist sector covering State and co operative enterprises.
The special status of a government owned transport undertaking in a Welfare State is obvious.
It has large resources to cater to the traffic needs.
It has, within its range of influence and coordination.
many services useful to the travelling public, which may be beyond the reach of private ownership.
Its functional motto is not more profits at any cost but service to citizens first and in a far larger measure than private companies and individuals, although profitability is also a factor even in public utilities.
Its sensitivity to community welfare and en couragement of labour participation, its accountability to the Government, the legislature and the public put it in a category by itself.
It is socially conscious, not profit obsessed.
We are aware of the shortfalls of some public sector undertakings in some respects 398 but it needs little argument to hold that to classify State transport systems on a separate footing is realsic and is ordinarily no sin before the principle of equality before the law.
The legislative body has done, in the given circum stances, what it thought was sound policy and we find no vice in the policy.
To classify what is conceptually and operationally different into a separate category is intelligence, not impertinence.
The judicial art of interpretation and ap praisal is imbued with creativity and realsm, especially where fundamental changes have been wrought by the Constitu tion in our approach to public sector enterprises.
Legal Darwinism, adapting the rule of law to new societal develop ments, so as to survive and serve the social order is neces sary: "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another genera tion badly, and which discards the old rule when it finds that another rule of law repre sents what should be according to the estab lished and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule.
It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life.
It is not and it should not be station ary.
Change of this character should not be left to the legislature.
If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors." (Cardozo: The Nature of the Judicial Proc ess: Yale University Press: pp.
151 152).
This refreshing perspective guides us to look at the submissions advanced.
Both the contentions can be shot down by three considerations.
Firstly, a State enterprise, in a truly Welfare State, is charged with a social consciousness and responsibility for its citizens, an attention to serve them and a willingness to embark on public utility undertak ings better to fulfil people 's demands.
The public sector enterprises are expected to be model employers and model servants, planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative com mittees and the Houses of the legislature.
Profits are their concern but, more importantly, public weal is their commitment.
Such is the philosophy of the State sector in our socialistic pattern of society.
Article 19(6)(ii) and article 38 of the Constitution, section 47 (1 ), especially the proviso, and Charter IVA of the Act (now governed by the impregnable Ninth schedule to the COnstitution) throw light on this policy of the paramount law.
Here, therefore, the rule making authority, having regard to all relevant circum stances, has decided to award to a State Transport Undertak ing 5 marks.
This is not an arbitrary stroke of favouritism because there are many promotional factors bearing on the interest of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not, take care of. 399 (Krishna lyer, J.) After all, private enterprise has its primary motivation in profit, although, under State direction, it is becoming socially responsive.
The superiority in many respects (not all respects) of State Transport Undertakings, in the legis lative judgment, has led to r. 155A.
This classification has noetic nexus with and rational relation to the object of augmenting the good of the passenger community.
The theory, rooted in the obsolescent laissez faire economics, that only cold competition among claimants to run businesses brings out the best operator has serious limitations in fields where the focus is on public service, not gains of business.
Public law, adapting itself to this socio economic view, shifts its emphasis.
This is what we have earlier called legal Darwinism.
We, therefore, hold that the assignment of marks under r. 155A is geared to public interest, which is the desideratum of section 47 ( 1 ) of the Act.
We now move on to an examination of the alleged fatal incompatibility between the proviso to section 47(1) and L 155A.
This second submission of counsel is a trifle mystifying.
There cannot be a contradiction without diction.
Unless section 47(1) proviso carries a negative injunction that transport tribunals shall not give any other preferential considera tion than what is stated in it, there cannot be any con flict between it and the impugned rule.
The proviso to the section does nothing of the kind.
It merely takes care of a specific situation.
Where a State Transport Undertaking: and a private operator are equally balanced, the scales may be tilted in favour of the former.
There is no implied inter dict that in other contingencies no preference shah be accorded.
It is not a 'Thus far and no further '.
Indeed, the spirit of this proviso has been carried further by the rule, having regard to the realities of the total transport system plying in the State.
The third consideration which silences the appellant 's charge of violation of section 47 is that the marking formula does not deprive the administrative tribunals of their discretion to choose the best.
The consternation of the private entrepreneurs that by manipulating the marking mechanism the State undertaking, regardless of its demons trable inferiority of public service, will knock off all the permits, paralysing the power of the Tribunal to pick and choose, by the overwhelming and inevitable superiority of marks, is misplaced.
The fear is falsified if we read the rule aright.
It has, written on its face, its own limita tion.
Marks shall guide, not govern the award.
Full discretion, to some extent, canalised by the marking proce dure, still vests in the Transport Authority.
For, the marks, these authorities will remember, sway the exercise of judgment, not supersede it.
It is conceivable that the pecularities of a route, the calamitous performance in an area of a State transport system, the outstanding spe cial facilities of a particular private operator or other like feature may outweigh the mechanics of marks.
After all, many qualifications, advantageous to the travelling public, may be thought of, untouched by the rigid marking moulds.
They are not irrelevant and may still be regarded by the tribunals.
All this leads to the conclusion that marks shape but do not clinch the ultimate selection.
The public is the consumer; its plenary service is the final test.
Therefore, these is 400 nothing in r. 155A deprivatory of the discretion vested by section 47(1).This interpretative footnote must allay the appre hensions voiced by counsel.
Nor are we convinced that there is no possibility of a private operator exceeding the mini mum marks of a State Transport Undertaking.
Moreover, the marking formula lacks flexibility.
Merely because the State Transport Undertaking has no 'residence ' or workshop on the route, although its attention and ability to react are considerable, why should it suffer a marks created handicap ? There is equity in r. 155A, making up, as it does, for the present shortfalls in the marking system visa visa govern ment transport service.
The appeals, for these reasons, must suffer dismissal.
There will be no order as to costs.
BEG, J. I agree with the conclusion reached by my learned brother Krishna Iyer.
As arguments in this batch of cases seem to raise some questions which I, speaking entire ly for myself, consider to be really outside the sphere of the law which we have to interpret and apply, I would like to make some observations on the implications of these questions argued after stating my reasons for agreeing with my learned brother.
Mr. Chitaley 's first argument for some of the appellants raised only what may be described as "normal" legal ques tions of construction or interpretation (there is some difference between these two allied processes as will appear from Crawfords "Statutory Construction", 1940 Edn., Chapter 18, paragraph 157 to 158 pages 240 244), as to whether Rule 155A(3)(D)(i), reproduced in the judgment of my learned brother Krishna Iyer, gives effect to or conflicts with Section 47 of the (hereinaf ter referred to as 'the Act ').
It was urged by the learned Counsel that what can be done only by resorting to Chapter IV A of the Act, by framing a scheme for partial or complete nationalisation of the routes involved, cannot be accom plished by framing a rule only ostensibly purporting to give effect to Section 47(1 ) of the Act or the proviso to it.
In ultimate analysis, the rule of construction relied upon by Mr. Chitaley to make the last mentioned submission is: "Expressio unius est exclusio alterius".
This maxim, which has been described as "a valuable servant but a dan gerous master (per Lopes J., in Court of Appeal in Colgu noun vs Brooks(1) finds expression also in a rule, formu lated in Taylor vs Taylor,(2) applied by the Privy Council in Nazir Ahmad vs King Emperor(3) which, has been repeat edly adopted by this Court.
That rule says that an express ly laid, down mode of doing something necessarily implies a prohibition of doing it in any other way.
The maxim from which the rule in Taylor vs Taylor(supra) is derived and the rule itself were discussed and explained by this Court in the Parbhani Transport Co operative Society Ltd. vs the Regional Transport Authority, Aurangabad & Ors (4) with specific reference to the argument advanced there that, (1) at 65.
(2) at 430.
(3) (1936) L.R. 63 I.A. 372.
(4) ; 401 as Chapter IV A is meant for running its own buses by the State by nationalisation of Motor Vehicle Road Transport Services, it was not open to the State to apply for per mits at all under Chapter IV of the Act which applies to private operators only.
This argument,repelled by this Court there has been put forward before us in a somewhat different and attenuated form by Mr. Chitaley.
Neverthe less, the basic rule of interpretation submitted to us is the same as the one which was relied upon in this Court in the Parbhani Transport Co operative Society 's case (supra) in an attempt to exclude the State Transport Undertaking altogether from entry into what was sought to be made out to be the exclusive preserve of private operators.
Before us, it is contended that exclusion of private operators could only be brought about by resorting to a duly framed scheme, on appropriate grounds given in Section 68C of the Act, but not indirectly by framing the kind of rule which has the effect of excluding private operators from the sphere of open competition which, it is submitted postulates an ini tial equality of positions.
This argument rests, as I will indicate below, on two erroneous assumptions: firstly, that Rule 155A(3)(D)(i) has the effect of excluding private operators; and, secondly, that the proviso to section 47(1) compels the permit issuing authorities to postulate or start by assuming an equality of conditions, as between private operators and a State Transport Undertaking.
Indeed, if they were to start with the assumption of equality they will have to give preference to the State Transport Under taking straightaway because that is what the proviso re quires.
The mainstay of the arguments of learned Counsel for the appellants before us, however, is that Rule 155A(3)(D)(i) really has the effect of excluding the private operators altogether by making it impossible for them to ever obtain preference over the State Transport Undertak ing when it applies for a permit in competition against them.
The reply on behalf of the State is that no exclusion of private operators is either intended or brought about by an application of Rule 155A(3)(D)(i) of the Act.
On the other hand, it is submitted that, as an ordinary operator and a State Transport Undertaking are, in many ways, so unlike each other that, unless five marks were assigned to each application of the State Transport Undertaking, it could not compete at all, on a fair and equal footing, with pri vate operators, who are able to obtain straightaway two marks for residential qualifications, four marks if they are operating not more than three buses, and two marks for workshop facilities.
apparently, the residential qualifica tion has reference to residence within the area in which the motor vehicles are to ply, and marks workshop facilities are granted to operators who are able to show such facili ties on particular routes whereas the State Transport Undertakings, it is pointed out, will neither have a resi dence within such an area nor may be able to show, in a particular case, workshop facilities on particular routes even though they may have better workshop facilities on the whole.
Again, two marks are to be given to private concerns or organisations, plying on particular routes, if their owners or Managing Directors have certain technical qualifications.
It is pointed out that, as State Transport Undertakings do 402 not have individual owners or Managing Directors, for whom these marks could be allotted, even though they may have technically much better qualified personnel to attend to their motor vehicles, the impugned Rule 155A(3)(D)(D could be justified as meant only to place State Transport Under takings on a footing of possible equality with private operators in competing.
for permits to be granted under Section 47(1) read with Section 42(3) of the Act and to do no more.
Furthermore, Rule 155A(3)(D)(i) occurs in a group for marks to be assigned on the basis of the number of vehicles run by the operators.
In any case, it was submit ted that it is a fair provision as a rough guide but is not decisive by any means.
It seems to me that the conten tion advanced on behalf of the State that the impugned part of Rule 155A enables provisions of the proviso to Section 47(1), read with Section 42(3), to be worked a manner in which the statutory provisions were intended to overate and does not really authorise a circumvention or infringement of the provisions of Chapter IV of the Act, is well founded.
The manner in which provisions of Chapter IV of the Act were meant to operate in cases of competition between pri vate operators and State Undertakings was explained in the Parbhani Transport Co operative Society 's case (supra) as follows (at p. 184): "The Government has of course the power to do.
any business it lies and therefore the business Of running stage carriages.
We have earlier drawn attention to the change made in cl.
(a) of section 42(3) by the: amendment of 1956.
Previously, it was not necessary for the Government to obtain permits under section 42(1) for buses that it intended to run as stage carriages.
SinCe the amendment the Government can no longer run transport vehicles for commercial purposes without obtaining permits under section 42(1 ).
Now the plying of buses as, stage carriages is a commercial enterprise and for such buses, therefore, under the sections as they stand, the Government would re quire permits as any one else.
That being so, the sections clearly, contemplate that the Government may apply for and obtain permits for its buses run as stage car riages.
The rule applied in Nazir Ahmad 's case (1936) L.R. 63, I.A. 372, 381) does not permit the ordinary meaning of section 42, sub.
s.(1) and sub.
s.(3), el.
(a) to be cut down because of the provisions of Chapter IVA.
The Act lays down two independent sets of provisions in regard to the.
running of buses by the Government, one under Chapter IV and, the other under Chapter IVA.
Chapter IVA was intended to give the Government, a special advantage.
When the Government chooses to proceed under that chapter, it becomes entitled as a matter of right under section 68F(1 ) to the necessary permits.
Under Chapter IV the Government does not have any such advan tage; it has to compete with other applicants, to secure permits to be able to run its buses.
The powers under the two.
chapters are there fore different.
To such a case the principle of Nazir Ahmad 's case cannot be applied".
403 Both Chapters IV and IVA enable plying of State transport as well as privately owned vehicles on hire on same routes, but the grounds for these combined operations under the two chapters are different.
The governing principle of Section 47(1) is to preserve as free and open a competition as possible in public interest, whereas the reason for allowing private operators upon a nationalised route may be broader one of public policy which may favour a decision against sudden stoppage of privately provided motor trans port, so as to avoid wastage of national wealth, even though it takes the form of investments by individual entrepre neurs, or, its object may even be prevention of undue hard ship to private operators.
Other reasons for permit ting combined services can be.
given.
It is, however, possible only under Chapter IVA to exclude private operators completely.
But, unless any rule relating to provision of motor transport under chapter IV has that effect it cannot be asserted that what can be done only by resorting to Chapter IVA is being attempted under the provisions of Chapter IV.
The rule in Nazir Ahmad 's case (supra) applies only to cases where there is a single specified mode laid down for doing something in exercise of the legal power to do it.
In that event, the specified mode may, negatively, operate as a prohibition against what is not prescribed at all and is outside the statute.
But, it could not apply to a case where two modes of doing the same thing are provided for by a statute itself.
Nor, as I have indicated above, could it be said that what is to be done under Chapter IV and what can be done under a scheme under Chapter IVA are really the same simply because, in a given case, the results of both may appear to be similar or even identical.
Mr. Ramamurthi, appearing on behalf of some of the appellants, embarked on quite an ambitious argument built upon an elaboration of the theme that Chapters IV and IVA belong to two different fields or spheres of action which cannot, so to speak, be allowed to mix, overlap, or collide.
It was contended that the waters of what are, in the eye of law, two different streams of activity. must not be allowed to mingle.
If 1 am not mistaken, even the word "pollute" was used, in the flow of arguments, to describe, possibly in a light vein, the alleged inequity of an invasion by a State Transport Undertaking of the supposedly exclusive preserve of private enterprise.
It was suggested that such a result would involve "pollution" of the domain of open competition, which is forbidden territory for State Under takings introduced as a consequence of another ideology or sphere of action found in Chapter IVA.
It seems to me that to hear such an argument, advanced even in a lighter vein, is really rather surprising in view of the language of the statute and welt known facts to which it is related.
It is quite well known that ours is what is known as a "mixed economy".
The highest norms of our law are embodied in our Constitution.
Article 19(6)(ii) of the Constitution clearly contemplates: "the carrying on by the State, or by a Corporation or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or.
otherwise".
And, in order to fulfil the objectives of the Preamble.
to our Constitution, the Constitu 404 tional mandate, contained in Article 39(c) of the Constitu tion, which the State has to carry out, may make it impera tive upon the State, in appropriate circumstances, either to take over or nationalise motor transport on roads in any region or area completely or to supplement the Transport Services provided by private operators with those provided by the State.
It seems to me that neither Chapter IV nor Chapter IV A can be really put into two separate water tight compartments so as to make it imperative either to exclude State Transport Undertakings from operating under the provi sions of Chapter IV or to exclude private operators when a scheme under Chapter IV A, which may itself provide for only a partial exclusion of such operators, is in force.
In the face of the clear words of proviso to Section 47 (1 ) of the Act, enabling State Transport Undertakings to provide Transport facilities in open competition, and of Section 68(C) in Chapter IV A of the Act, enabling "the exclusion complete or partial" of private operators from particular areas or routes, such an argument cannot be put forward at all before us under some preconceived notions even after these very notions had been rejected by this Court in the Parbhani Transport Co operative Society Ltd 's case (supra).
It is clear that the two chapters of the same Act are both intended to subserve "the interest of the public gener ally" in any area in the country, That is the integrating or governing principle evident from the language of the Act itself in both Chapter IV and Chapter lV A of the Act.
An argument advanced on behalf of the appellant seemed to be that Rule 155A(3)(D)(i) results in defeating the mandate of Section 47(1) of the Act, that the Regional Transport Authority must, as explained repeatedly by this Court, keep "the interest of the public generally" in the fore front.
As already indicated by me, this argument really proceeds on the erroneous assumption that the mere fact that the State Transport Vehicles are given five marks would defeat public interest by excluding consideration of all facts except that the State Undertaking has applied for one or more permits on a particular route.
As my learned brother Krishna Iyer has also pointed out, this is an unwarranted assumption.
Rule 155A gives only guidance, but the totality of factors men tioned in Section 47(1) 'really decide.
It was suggested on behalf of the State Transport Under taking that the obvious capacity of a State Undertaking to provide facilities which are beyond the reach of private operators, that its actions are subjected to such constant, vigilant, and rigorous control on behalf of the public, and that it is bound to be so free from any desire to make profit.s, by sacrificing public interests or convenience of passengers that, even if nothing else was considered, these presumed advantages would justify the award of five marks on each application of the State Undertaking for a permit.
If this line of reasoning was completely accepted and car ried to its logical conclusion, the provision/or giving five marks ,to each application of the State Undertaking would become quite otiose or unnecessary because, in that case, the State Undertaking would, by relying merely on a presumed superiority for purposes of Section 47 (1 ), get a prefer ence automatically.
The proviso to Section 47 (1 ) of the Act would then, apart from making it clear that the State Undertaking can also apply for permits, for which 405 purpose Section 42(3) was enough, serve: no useful purpose.
Indeed, if such a view were to be accepted, the first part of the proviso to Section 47 (1 ) would seem to rest on a false premise because there could be no case in which "other conditions" could ever be "equal" as between a State Transport Undertaking and a private operator.
The State Transport Service would, in that case, always get a prefer ence.
For this reason, I do not think that this line of reasoning could be pushed too far.
It has to be assumed, in view of the opening words of the proviso to section 47 (1 ), that there may be cases in which an application of the basic principle, contained in Section 47 (1) of the Act, may tilt the balance either in favour of the State Undertaking or the private operator.
The proviso applies only where the State Undertaking could ' reasonably be deemed to be in a position of equality as regards comparative advantages offered by it.
As there cannot, between such dis similar operating units, be comparability of conditions or advan tages offered unless some rule is flamed and applied which could make comparison reasonably possible, it seems to me that Rule 155A(3) (D)(i) is justifiable on the ground that it makes what is legally contemplated and permissible also practicable.
The proviso.
to Section 47 (1 ) reads as follows: "Provided that other conditions being equal, an application for a stage carriage permit from any State Transport Undertaking or a co operative Society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.
" An examination of this proviso shows that an.
equality of other conditions is contemplated before any question of giving preference, merely on the ground that the applicant is the State Transport Undertaking or a Cooperative Society, can arise.
If other conditions are equal, then, undoubted ly, the choice as between such equals must, if the proviso is to be given effect, be made in favour of the State Trans port Undertaking or a Cooperative Society automatically.
That is how, in such a case, See.
47(1) itself would be deemed to operate.
The validity of the proviso is not challenged.
Even if Article 14 were available for an attack upon it, as it is not during the current emergency, it is clear that the State Transport Undertaking does stand in a separate category.
Therefore, it could be found entitled, for obviously good and intelligible reasons, to preference over private operators "other conditions being equal".
The narrow ques tion before us.
Thus, appears to me to be nothing more than whether the impugned part of Rule 155A sub serves or vio lates the proviso.
The proviso itself is meant to explain what public interest, as visualised by Section 47(1), re quires.
Hence it appears to me that the validity of the impugned part of Rule 155A could be determined on purely legal grounds as a necessary corollary of the proviso to Section 47(1).
The impugned part of the Rule is there to make the proviso workable and not to defeat its provisions.
406 It is, however, becoming increasingly fashionable to start with some` theory of what is basic to a provision or a chapter or in a statute or even to our Constitution in order to interpret and determine the meaning of a particular provision or rule made to sub serve an assumed "basic" requirement.
I think that this novel method of construc tion puts, if I may say so, the cart before the horse.
It is apt to seriously mislead us unless the tendency to use such a mode of construction is checked or corrected by this Court.
What is basic for a section or a chapter in a stat ute is provided: firstly, by the words used in the statute itself; secondly, by the context in which a provision oc curs, or, in other words, by reading the statute as a whole; thirdly, by the preamble which could supply the "key" to the meaning of the statute in cases of uncertainty or doubt; and, fourthly, where some further aid to construction may still be needed to resolve an uncertainty by the legislative history which discloses the wider context or perspective in which a provision was made to meet a particular need or to satisfy a particular purpose.
The last mentioned method consists of an application of the Mischief Rule laid down in Heydon 's case long ago.
If we start from a theory as to.
what the real purpose or need is or could be, the danger is that we may be inject ing a subjective notion or purpose of our own into what is, after all, a legal question of construction or interpreta tion, according to well recognised principles, although it may be necessary, in exceptional eases, to explain or forti fy the interpretation adopted in the light of so well under stood and.
well known a purpose or theory that we could take judicial notice of it and refer to it.
The exposition of the well known purpose or theoretical foundation must, however, generally, flow from and explain an interpretation adopted, on the strength of legally acceptable and accepted canons of construction, if we are to avoid the danger of an a priori determination of the meaning of a provision based on our own pre conceived notions of an ideological structure or scheme into which the provision to be interpreted is somehow fitted.
The path of judicial certainty and predictability has to be paved with well settled principles of construction and interpretation.
We cannot let it develop into a slippery slope be set with hazardous possibilities.
The science of statutory construc tion and interpretation I think can call it that rests on certain systematised principles and rules of common sense, logic, and reason.
It can not be transformed into a happy hunting ground for whatever may captivate the forensic or judicial fancy or become something akin to poetry without even the attractions of euphony.
For the reasons given above, I find that, on an applica tion of the ordinary and well recognised rules of interpre tation, without resorting to any of the novel methods suggested by some of the arguments of learned Counsel for the appellants, the impugned part of Rule 155A(3) (D)(i) is valid.
I, therefore, concur with nay learned brother Krishna Iyer, and hold that the connected appeals and peti tions before us must be dismissed.
M.R. Appeals dis missed.
| IN-Abs | The appellants, private stage carriage operators, applied for the renewal of their expiring bus permits.
The re spondent State Transport Undertaking objected, urging preferential grounds in its own favour, claiming to have secured higher marks with the aid of r. 155 A of the Motor Vehicles Rules.
The State Transport Undertakings claim was upheld.
The appellants moved the appellate Tribunal, and also filed a writ petition before the High Court for direc tions to the appellate Tribunal to dispose of his appeal without relying on r. 155 A.
The writ petition was dismissed by a Single Judge, and an appeal before the Division Bench also failed.
In appeal by Special Leave, the appellants assailed the validity of r. 155 A the grounds of its being partial to the Government against public interest and contradicting the proviso to section 47(1) of the .
Dismissing the appeals, the Court, HELD: (Per Krishna Iyer J. for himself and on behalf of A. N. Ray CJ.) 1.
The assignment of marks under r. 155 A is geared to public interest, which h the desideratum of section 47(1) of the Act.
This is not an arbitrary stroke favouritism because there are many promotional factors bearing on the inter est of the travelling public which a State enterprise qua State enterprise will, but a private enterprise qua private enterprise will not take care of.
There is equity in r. 155 A, making up, as it does, for the present short.falls in the making system vis a vis a government transport service.
[398H. 399B] P. Kumaraswamy vs State Transport ,Appellate Tribunal, Madras & referred to.
The Court observed: Legal Darwinism, adapting the rule of law to new socie tal developments, so as to survive and serve the social order, is necessary.
[398B] Cardozo: The nature of the Judicial Process; Yale Uni versity Press; pp. 151 152, relied upon.
There cannot be any conflict between section 47(1) proviso and the impugned rule.
The proviso does not carry any negative injunction that transport tribunal shall not give any other preferential consideration than what is stated in it.
There is no implied interdict that in other contingen cies no preference shah be accorded.
The proviso merely takes care of a specific situation.
Moreover.
the mark ing formula does not deprive the administrative tribunals their discretion to choose the best [399C E] Per H.M. Beg, 1.
(Concurring) Where there is a single specified mode laid down for doing something exercise of the legal power to do it, the specified mode may, negatively operate.
393 (Krishna Iyer, J.) as a prohibition against what is not prescribed at all and is outside the statute.
But expressio unius est exclusio alterius could not apply ot a case where two modes of doing the same thing are provided for by a statute itself.
Here both chapters IV and IV A enable plying of State transport as well as privately owned vehicles on hire on same routes, but the grounds for these combined operations under the two chapters are different.
[403A, C, D] Parbhani Transport Co operative SOciety Ltd., vs The Regional Transport Authority, Aurangabad & Ors.
; , applied.
Nazir Ahmad vs King Emperor (1936) L.R. 63 I.A. 372, distin guished.
Colquhoun vs Brooks at a, 65; Taylor vs Taylor at 430 and Crawfords "Statuto ry Construction" 1940 Edn., Chapter 18, paragraphs 157 to 158, pages 240 244, referred to.
|
Civil Appeal No. 2454 of 1972.
From the Judgment and Order dated the 18th December, 1971 of the Punjab and Haryana High Court at Chandigarh in Civil Writ Petition No. 2604 of 1971.
L. N. Sinha, Solicitor General,Naunit Lal, R. N. Sachthey for the appellant.
Anand Swarup, Harbans Singh Marwah for Respondent No.2.
Ashok Grover; for Respondent No. 1.
RAY, C.J.
This appeal is by certificate from the judgment dated 18 November, 1971 of the Punjab and Haryana High Court.
The respondent joined the Punjab Civil Service, (Executive Branch) in November, 1954.
He was selected for the Judicial Branch of the Punjab Civil Service on or about 1 May,1965.
On 15 November, 1968 he was promoted as officiating Additional District and Sessions Judge.
The respondent was due to attain the age of 55 years on 24 February, 1971.
His case was referred to the High Court for their recommendation whether the respondent should retire at the age of 55 years or he should be retained in service till the age of 58 years which is the prescribed age of superannuation under the Punjab Civil Service Rules.
The High Court was of opinion that the work of the respondent as Additional District and Sessions Judge was not satisfactory.
The High Court was not inclined to recommend the respondent 's continuance in Superior Judicial Service up to the age of 58 years.
The High Court recommended that the respondent should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to continue in service till the age of 58 years.
The State Government agreed with the recommendation for reverting the respondent from the post of Additional District and Sessions Judge to the Senior Subordinate Judge/Chief Judicial Magistrate.
With regard to the retention of the respondent in service up to the age of 58 605 years the State again asked the High Court to consider whether in view of the respondent 's work as Additional District and Sessions Judge, Hissar, having been found to be unsatisfactory, the respondent should be retained at all in service beyond the age of 55 years.
The State Government suggested that it was in public interest to retire the respondent at the age of 55 years.
The High Court did not agree with the suggestion.
By letter dated 16 August, 1971 the High Court reiterated that the respondent might continue in service up to the age of 58 years.
The State Government did not agree with the recommendation of the High Court and decided to retire the respondent under Rule 5.32 (c) of the Punjab Civil Service Rules.
A notice was issued to the respondent on 20 August, 1971 giving him notice of three months on the expiry of which he would retire from service.
The respondent filed a writ petition in the High Court impeaching the notice dated 20 August 1971.
The matter was heard by a Bench of three learned Judges.
The order retiring the respondent from service was quashed by the majority opinion.
The question is whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under rule 5.32 (c) of the Punjab Civil Service Rules against the recommendation of the High Court.
This Court in Shyam Lal vs State of Uttar Pradesh held that compulsory retirement does not involve stigma or any implication of mis behaviour or incapacity.
In Dalip Singh vs State of Punjab this Court held that in order to find out whether an order of compulsory retirement is or is not by way of punishment, is to find out whether a charge of imputation against the officer is made the basis of the exercise of power and second whether the officer is deprived of any benefit already earned.
In the recent decision in Tara Singh vs State of Rajasthan this Court held that compulsory retirement is not a punishment because the officer does not lose the terminal benefits already earned by him.
In B. Venkateswararao Naidu vs Union of India this Court held that compulsory retirement does not involve civil consequences.
It, therefore, follows that compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under the Service Rules.
It is in fact compulsory retirement in accordance with the terms and conditions of service.
The decisions of this Court in State of West Bengal vs Nripendra Nath Bagchi and High Court of Punjab and Haryana etc.
vs State of Haryana (Sub nom Narendra Singh Rao) are that Article 235 vests in the High Court control over District Courts and courts subordinate thereto.
The Governor appoints and dismisses and removes Judicial Officers.
Control which is vested in the High Court is complete control subject only to the power of the Governor in the 606 matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges.
There is nothing in Article 235 to restrict the control of the High Court in respect of Judges other than District Judges in any manner.
Article 311 has taken away the power of dismissal or removal or reduction in rank from the High Court and the Governor has been given that special power referred to in Article 311(3).
This Court in Shamsher Singh & Anr.
vs State of Punjab held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the Judicial Officers is by the High Court and no other authority.
There cannot be dual control.
If State Government is to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court.
Compulsory retirement is neither suspension nor removal nor reduction in rank.
It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act.
The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.
The Punjab Civil Service Rules in Rule 3.26(a) deals with compulsory retirement at the age of 58.
Rule 5.32(c) deals with retirement at the age of 55.
Two relevant rules in the Punjab Civil Service Rules in the present case are these.
Rule 3.26(a) states that the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which he attains the age of 58.
Rule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months ' notice.
This Court in Bagchi 's case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service.
Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service.
The High Court further deals with members of the judicial service in accordance with the rules and conditions of service.
This Court in Bagchi 's case (supra) said that the word "deal" points to disciplinary and not merely administrative jurisdiction.
The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation will be passed by the State Government on the recommendation of the High Court.
This is because the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.
It is true that the fixation of the age of superannuation is the right of the State Government.
The curtailment of that period under rule 607 governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control.
Disciplinary control means not merely jurisdiction to award punishment for misconduct.
It also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation.
Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court.
Premature retirement is made in the exercise of administrative and disciplinary jurisdiction.
It is administrative because it is decided in public interest to retire him pre maturely.
It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superannuation and that it is in the public interest to do so.
This Court held in State of Assam vs Ranga Mahammad and Ors.
that the Governor under Article 233 is concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre.
This Court has held in the Punjab and Haryana case (supra) that the confirmation of District Judges is to be done by the High Court because it falls within the control vested in the High Court.
The High Court is acquainted with the capacity of work of the members of the Service.
In the Punjab & Haryana case (supra) this Court pointed out that if after the appointment of District Judge till he is confirmed the State is allowed to control the District Judge there will be dual control.
This is not the meaning of "control" in our Constitution.
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 recommendation 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 jurisdiction will bind the State. "The Government will act on the recommendation of the High Court.
That is the broad basis of Article 235".
See Shamsher Singh 's case (supra) at page 841.
In the present case, the order of the State retiring the respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court.
The High Court did not make any recommendation to that effect.
The appeal is, therefore, dismissed with costs.
V.P.S. Appeal dismissed.
| IN-Abs | The respondent was officiating as Additional District & Sessions Judge.
On a reference to the High Court whether he should be retained in service till the age of 58 or should be retired at the age of 55, the High Court recemmended that he should be reverted to his substantive post of Senior Subordinate Judge but that he should be allowed to continue in that post till the age of 58.
The State Government reverted him but retired him from service at 55 under r. 5.32(c) Punjab Civil Service Rules.
The rule states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 by giving him 3 months notice.
The High Court quashed the order of retirement.
Dismissing the appeal to this Court.
^ HELD: (1) Article 235 vests in the High Court control over district court and courts subordinate thereto.
The control includes both disciplinary and administrative jurisdiction.
Disciplinary control means not merely jurisdiction award punishment for misconduct, but also the power to determine whether the record of member of the service is satisfactory or not so as to entitle him to continue in service for.
the full term till he attains the age of superannuation.
Administrative judicial and disciplinary control over members of the judicial service is vested solely in the High Court.
Premature retirement is made in the exercise of administrative and disciplinary jurisdiction.
It is administrative because it is decided in public interest to retire him prematurely and it is disciplinary, because, the decision is taken in public interest that he does not deserve to continue up to the normal age of superannuation.
The fixation of the age of superannuation is the right of the State Government.
The curtailment of that period under rules governing the conditions service is a matter pertaining to disciplinary control as well as administrative control.
[605G H: 606H 607C] State of West Bengal vs Nripendra Nath Bagchi ; and High Court of Punjab and Haryana etc.
vs State of Haryana (Sub nom Narerdra Singh Rao) ; , followed.
(2) The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to District Judges.
The vesting of complete control over the subordinate judiciary in the High Court, leads to this that if the High Court is of opinion that a particular officer is not fit to be retained in service, the High Court will communicate that opinion to the Governor, because, the Governor is the authority to dismiss, remove or reduce in rank or terminate the appointment.
In such cases, the Governor, as the head of the State, will act in harmony with the recommendation of the High Court as otherwise the consequence will be unfortunate.
[605H 606A G. H: 607E F] (3) But, compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under service rules.
When a case is not of removal or dismissal or reduction in rank, any order in respect of exercise of control over the judicial officers is by the High Court and by no other authority; otherwise, it will affect the independence of the judiciary.
[605F G;] 604 Shyam Lal vs State of Uttar Pradesh ; ; Dalip Singh vs
State of Punjab ; Tara Singh vs State of Rajasthan [1975] 4 S.C.C.86; B. Venkateswararao Naidu vs Union of India ; and Shamsher Singh & Anr.
vs State of Punjab ; , followed: (4) It is not correct to contend that the Governor and not the High Court has the power to retire a judicial officer compulsorily under section 14 Punjab General Clauses Act.
The suggestion that the High Court recommends and the State Government implements the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.
It is only the order terminating the appointment of a member of the service otherwise than upon his reaching the age of superannuation that will be passed by the State Government on the recommendation of the High Court.[606C D, G H]
|
Appeal No. 156 of 1971.
From the Judgment and Order dated 19 10 1970 of the Gujarat High Court in Special Civil Appln.
No. 1177/70.
B.R.L. Iyengar, S.K. Dholakia and R.C. Bhatia, for the appellant.
B.B.Ahuja, for respondent No. 1.
The Judgment of the Court was delivered by UNTWALIA, J.
The appellant 's writ petition filed in the High Court of Gujarat was dismissed in limine by a Bench of the High Court on October 19, 1970.
The Commissioner of Income tax, Gujarat II, respondent No. 1 was the authority against whom several reliefs had been claimed in the writ petition.
Subsequently were added the other members of the family of the appellant as respondents to the writ petition.
The appellant obtained a certified from the High Court for appeal to this Court under sub clause (b) of clause (1) of Article 133 of the Constitution of India as it stood before the 30th Constitution Amendment Act.
Hence tills appeal to this Court.
Having heard Mr. B.R.L. Iyengar, Senior Advocate for the appellant at some length we found that the appellant was ill advised to file the writ petition and to.
pursue the matter upto this Court.
The appeal being devoid of any substance must fail.
We proceed to state the facts and discuss the points urged before us very briefly.
One BapalaI Purshottamdas Modi was the head of a Hindu Undivided family.
The joint family possessed many immovable properties and carried on business of various types such as money lending etc.
Bapalal had five sons namely Vadilal, Ramanlal, Jayantilal, Gulabchand and Kantilal.
Ramanlal died long ago in or about the year 1933.
Jayantilal died in 1956.
The appellant is one of the sons of Jayantilal.
The appellant 's case in the writ petition was that Bapalal was the karta of the Hindu Undivided family.
He executed a general power of attorney on October 5, 1948 in favour of his third son Gulabchand to manage his (Bapalal 's) separate property.
On October 22, 1954 Bapalal relinquished his right, title and interest in the joint family properties on taking a sum of Rs. 75,000/ leaving the corpus and management of the joint family properties to his four sur viving sons and Rajnikant, son of late Ramanlal.
These five members also executed a memo of partition on October 24, 1954 disrupting the erstwhile Hindu Undivided family and partitioning the properties.
In course of the proceedings for assessment of the income tax for the assessment year 1955 56 against the Hindu Undi vided family of Bapalal Purshottamlal Modi, an application under Section 25A of the Income tax Act, 1922 was made claiming partition w.e.f. October 24, 1954.
Notices of the enquiry under section 25A were served on all the members of the family.
At the enquiry the statements of various persons including the appellant were recorded by the Income tax Officer.
He, by his order, dated January 28, 1960 disallowed the 114 claim under section 25A of the Income tax Act, 1922.
It is asserted that in the year 1961 a suit for partition had also been filed and the City Civil Court Ahmedabad passed a decree for partition on June 30, 1965.
In an appeal filed before the Appellate Assistant Commissioner from the order of the Income tax Officer dated January 28, 1960 reliance was placed on the Civil Court partition decree also.
The Appellate Assistant Commissioner, however, dismissed the appeal by his order dated September 30, 1965.
A second appeal to the Income tax Appellate Tribunal was dismissed on March 28, 1969.
InCometax assessment was made against the Hindu Undivided family for the year 1955 56.
Assessments were also made against the Hindu Undivided family, sometimes treating it as Association of Persons or Unregistered Part nership Firm as per returns filed from time to time, for the subsequent years upto the assessment year 1965 66.
Copies of all the assessment orders were enclosed with the writ petition aS Annexure 'I ' collectively.
Appeals taken to the Tribunal from some of the assessment orders were also dismissed.
Notices were being issued and served under sections 22 and 23 of the Income tax Act, 1922 for the assessment years which were governed by the said Act.
In respect of the assessment years 196.2 63 onwards notices were.
issued and served under sections 142 and 143 of the Income tax Act, 1961.
A large sum of tax and penalty became due as the demands from time to time were partly paid.
The Income tax authorities took steps for realization of the income tax dues against the appellant 's family and got attached various properties.
In Civil Suit No. 806 of 1961 in which the preliminary partition decree was passed on June 30, 1965, respondent Kantilal had been appointed as a re ceiver Later on one Mr. Bhatt was appointed Receiver.
A Savings Bank Account No. 412002 was being operated by the Receiver.
The Income tax Officer attached the entire amount of Rs. 56,294.43 in the said account by his orders dated May 12, 1970.
Thereupon, the appellant filed the writ petition challenging the various orders passed in the pro ceeding under section 25A of the Income tax Act, 1922; the assessments made for the years 1955 56 to 1965 66 and the attachment orders on various grounds.
In a single writ petition rambling allegations were made challenging the multifarious proceedings and the orders on various ground 's and the following prayers were made: "(a) declaring void and illegal and quashing the proceedings of the income tax authorities making assessments on Hindu Undivided Family, Association of persons and unregistered partnership firm afore said for the years beginning from the assessment year 1955 56 and also the proceedings for the recovery of the taxes so assessed, and (b) quashing the orders of the income tax Au thorities refusing to record partition and direct ing the Respondent and his Subordinates to record under Section 25A of the Act that the erstwhile joint family property has been divided or parti tioned in definite portions, each member getting an equal share, on October, 1954; 115 (c) directing the respondent and his subordi nates to cancel o.r withdraw the impugned orders and all steps taken for the recovery of the amounts so.
assessed; (d) directing the respondent and hi.s subordi nates not to take any further steps for the recov ery of the tax so assessed; (e) quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid; (f) quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955 56 onwards, and (g) to pass such other and further orders as your Lordships deem just and expedient in the circurm stances of the case.
" It seems to us that the High Court rightly dismissed the appellant 's petition in limine.
Since the valuation under Article 133(1)(b) was beyond Rs. 20,000/ , the appellant was granted a certificate as a matter of course.
It was pointed out to.
the appellant 's counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only.
Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account.
While doing so, he traversed the entire allegations in the petition by adopting an ingenious method.
Counsel submitted that the attachment had been made for realization of the income tax dues based upon various orders which were void and ultra vires.
All those orders could be attacked collaterally while attacking the attachment order.
Mr. Iyengar urged the following points in,support of the appeal.
(1 ) That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act, 1922 were without jurisdiction and on their face suffered from many infirmities of law.
(2) That after Bapalal relinquished his inter est in the joint family properties and ceased to be the karta, there was no karta of the family.
Gulabchand a junior member of the family could not act as a karta.
Other members of the family did not accept him to be the karta.
(3) That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi a dead person and hence the entire proceedings and assessment orders were nullities.
116 (4) That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings.
None of the points urged on behalf of the appellant merits any detailed discussion.
We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relin quishment executed by him on October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act, 1922.
In our opinion.
the orders do not suffer from any infirmity of law or any such defect which will make them void.
Notice of the enquiry had been given to all the members as admitted by the appellant himself.
He had been examined in the proceedings.
Sub section (3) of Section 25A pro vides.
that where an order accepting partition had not been passed in respect of a Hindu family as sessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family.
A partition preliminary decree came much later.
The income tax authorities had their own view to take.
They were not bound by the decree.
No reference was taken under the income tax Act challenging the order of the Tribunal dismiss ing the appeal.
It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban.
At the relevant time no body disput ed his authority to act as karta.
His eldest brother Vadilal was an old man of about 70 years of age.
His eider brother Jayantilal father of the appellant died in the year 1956.
In these circum stances he appears to have acted as the karta with consent of all the other members.
A junior member of the family could do so.
See Mulla 's Hindu Law 296, fourteenth edn.
Where occurs the following passage: "So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties," includ ing even charitable properties (q); and is presumed to be the manager until the contrary is shown(r).
But the senior member may give up his right of management, and a junior member may be appointed manager(s) .
" Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi.
They were neither issued to nor served on Bapajal the dead person.
In response to the notices returns were being filed by the managing member of the family.
At no stage before the income tax authorities a contention was raised that the notice was served on a dead person.
There is no substance in the third point.
Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assess ment made in respect of the income of his family which continued in the eye of law to be joint.
The share 117 of the appellant 's properties received by him from the joint family or the income thereof is liable for the income tax dues in question.
The appellant, as we have said above, was ill advised to file a misconceived petition on wholly un tenable grounds.
In the result the appeal fails and is dismissed with costs to respondent No. 1.
S.R. Appeal dismissed.
| IN-Abs | Bapalal Purshottamdas Modi was the karta and head of a Hindu Undivided Family possessing many immovable properties and carrying on business of various types including money lending.
Bapalal had five.
sons, viz. Vadilal Ramanlal, Jayantilal, Gulabehand and Kantilal; out of whom Ramanlal and Jayantilal predeceased him in 1933 and 1956 respectively and the appellant was one of the sons of Jayantilal.
As per the general power of attorney dated 5 10 1948, executed by Bapalal in his favour, Gulabchand, the third son was acting as a karta and was filing the various tax returns without any objection.
whatsoever by the other members of the Hindu Undivided Family.
Bapalal relinquished all his rights in the joint family property on 22 10.54 leaving the corpus of the joint family properties to his four surviving sons and Rajnikant, son of Ramanlal.
All of them executed on 24 10 54, a memo of partition disrupting the Hindu Undivided Family and partitioning the properties the course of the proceedings of the income tax assessment for the assessment year 1955 56 against the H.U.F. of Bapalal Purshottamlal Modi, an application under section 25A of the Income Tax.
Act, 1922 claiming partition was made.
The claim was disallowed by ' the I.T.O. by his order dated 28 1 1960.
During the pendency of the appeal, a suit for partition was filed in 1961 and a decree for partition was obtained on June 30, 1965.
The. appeal to the Appellate Assistant Commissioner was dismissed on September 30, 1965 and the second appeal 10 the Income Tax Appellate Tribunal was also dismissed on March 28. 1969.
The appellants did not ask for a reference to the High Court, as provided under the Act, but went on filing the returns in respect of the subsequent assessment years.
When the Income Tax Officer got attached the entire amount in the, Savings Bank A/c towards the tax liability by an order dated May 12.
1970, the appellant filed a writ petition challenging the various orders passed in the pro ceedings under section 25A for the assessment years 1955.66 to 1965 66 and the several attachment orders.
The High Court dismissed the writ in limine, but granted a certificate under article 133(1)(b) of the Constitution.
Dismissing the appeal, the Court, HELD: (1) Sub section (3) of section 25A provides that where an order accept ing partition had not been passed in respect of a Hindu Undivided Family assessed as undivided, such family shall be deemed for the purposes of the Act to con tinue to be Hindu Undivided Family.
The Income Tax Officers who had their own view to take, were not bound by the de cree, since in the instant case the partition preliminary decree came much later and there was no reference under the Income Tax Act challenging the order of the Tribunal.
[116 C D] (2) A junior member of the family can, with the consent of all the other members.
act as a karta, if the senior member gives up his right.
[116 E] 113
|
riminal Appeal No. 361 1975.
(Appeal by Special Leave from the Judgment and Order dated the 19th Sept., 1975 of the Karnataka High Court in Criminal Petition No. 52 of 1975.) D. Mookerjee and B.R.G.K. Achar, for the appellant.
H.B. Datar and R.B. Datar, for respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
, This appeal by special leave raises a short but interesting question of law relating to the interpretation of certain provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Old Code").
The facts giving rise to the appeal are few and may be briefly stated as follows.
One Bodegowda was murdered and in regard to this inci dent a case was registered at the Police Station on 13th October, 1973 as Crime No. 62 of 1973.
The police inves tigated the case and after the investigation was complete, a charge sheet was filed against the respondents in the Court of Judicial Magistrate, 1st Class Chickmagalur and the case was registered as C.C. No. 2319 of 1973.
The learned Magistrate held an inquiry in accordance with the provisions of Chapter XVIII of the old Code and being of the opinion that the respondents should be committed for trial, the learned Magistrate framed a charge against the respondents for having committed an offence under section 302 read with section34 of the Indian Penal Code.
The learned Magis trate then read and explained the charge to the respondents and after giving an opportunity to the respondents to.
give in a list the names of witnesses whom they wished to be summoned to give evidence, the learned Magistrate made an order committing the respondents for trial by the Court of Sessions, Chickmagalur.
This order of committal was made on 15th March 1974 and in pursuance of it, the records of the case were forwarded to the Court of Sessions, Chickmaga lur where they reached on 23rd March, 1974 and the case was registered as S.C. No. 5 of 1974.
The Sessions Judge fixed the trial of the case on 15th July, 1974 but before that date, the Public Prosecutor filed an 352 application on 29th June, 1974 praying for permission to withdraw from the prosecution under section 494 of the old Code.
The learned Sessions Judge by an order passed on the same day accorded permission to the Public Prosecutor to withdraw from the prosecution and 'discharged ' the respond ents in respect of the offence charged against them.
The State thereafter ordered fresh investigation into the of fence and ha consequence of such investigation, a new charge sheet was filed against the respondents and three other accused in the Court of Judicial Magisrate, 1st Class, Chickmagalur.
Since this chargesheet was filed after 1st April, 1974 when the Code of Criminal Procedure, 1973 (hereinafter referred to as "New Code") had come into force, the learned Magistrate, following the provisions of the New Code, committed the respondents and the other three accused to stand their trial before the Court of the Ses sions Judge, Chickmagalur for the same offence.
When the case came up for hearing before the Sessions Judge, the respondents made an application contending that by virtue of the order dated 29th June, 1974 made by the Sessions Judge under section 494 of the Old Code, the respondents had been acquitted and they were, therefore, not liable to be prose cuted again for the same offence in view of section 300 of the New Code.
The Sessions Judge rejected the applica tion, taking the view that the respondents were discharged and not acquitted under the Order dated 29th June, 1974 and, therefore, section 300 of the New Code was not applicable and there was no bar against their fresh prosecution for the same offence.
The respondents challenged this Order by preferring a revision application to the High Court.
This revision application was allowed and the High Court held that though the Order passed by the Sessions Judge directed that the respondents be 'discharged ', the legal effect of this order was to bring about the acquittal of the respond ents since the withdrawal from the prosecution was made after the charge had been framed and the respondents having been acquitted under that Order, the bar of section 300 of the New Code was attracted and the respondents were not liable to be prosecuted again for the same offence.
This order made by the High Court is challenged in the present appeal preferred by the State with special leave obtained from this Court.
It may be pointed out that before the High Court it was contended on behalf of the State that the earlier case before the Sessions Judge, viz., Sessions Case No. 5 of 1974, was governed by the provisions of the new Code and, therefore.
in view of section 228 of the new Code, t was the obligation of the Sessions Judge to frame a charge before proceeding with the trial and since the withdrawal from the prosecution was effected before the framing of such charge by the Sessions Judge, the order passed by the Sessions Judge amounted to an order of discharge and not of acquit tal.
This contention was, however, not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the earlier case before the Ses sions Judge was governed by the provisions of the old Code and the new Code had no application to it.
Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force.
Here in the present case the Judicial Magistrate had already made an order of.
353 committal on 15th March, 1974 and pursuant to that order, the records of the case had reached the Court of the Ses sions Judge on 23rd March, 1974.
The case was, therefore, already before the Court of Sessions prior to 1st April, 1974 and it was pending before that court for trial on 1st April, 1974 when the new Code came into force.
It is immaterial as to when the case was actually registered and a number given to it.
Since the case was pending for trial before the Sessions Court on 1st April, 1974, it was liable to be tried in accordance with.
the provisions of the old Code and it was for this reason that the application for withdrawal from the prosecution was also made by the Public Prosecutor under section 494 of the old Code and not under the corresponding provision of the new Code.
Sec tion 494 of the old Code provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return Of the verdict and in other cases, before the judgment is pronounced, withdraw from.
the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and the section then goes on to add that: "upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged (in respect of such offence or offences); (b) if it is made after a charge has been framed or when under this Code no charge is required he shall be acquitted in respect of such offence or offences) .
" The withdrawal from the prosecution in the present case having been made under this section, it is clear that if it was made before a charge was framed, the respondents would be discharged but if it was made a charge had been framed, the consequence would be that the respondents would be acquitted.
It, therefore, becomes material to inquire whether at the date when the withdrawal from the prosecution was made, a charge had been framed against the respondents or not.
Whether the order of the Sessions Judge granting consent to the withdrawal from the prosecution amounted to an order of discharge or acquittal would depend upon the answer to this question.
It may be pointed out that it is of no consequence that the Sessions Judge directed the respondents to be 'discharged ' because if the legal effect of the order was to acquit the respondents, then the incor rect use of the expression 'discharged ' by the Sessions Judge would not alter the legal position and convert the order of acquittal into one of discharge.
Now, in order to determine whether the withdrawal from the prosecution was made before the framing of the charge or after, it is necessary to notice the scheme of the relevant provisions of the old Code.
Sessions Case No. 5 of 1974 in which the withdrawal was made was committed to the Sessions Court by the Judicial Magistrate under the provisions of Chapter XVIII of the old Code.
The proceeding before the Judicial Magistrate was instituted on a police report and the learned Magistrate, therefore, followed the procedure specified in section 207A.
This section lays down a special procedure to be adopted in proceedings instituted on police report with a view to expeditious disposal of criminal cases.
Sub section (1) provides that the Magistrate, on 354 receipt of the report forwarded under section 173, shall fix a date for the purpose of holding an enquiry and sub section (2) empowers the Magistrate to issue process for compelling the attendance or any witness or the production of any document.
The Magistrate is required by sub section (3) to satisfy himself at the commencement of the enquiry that the documents referred in section 173 have been furnished to the accused.
Sub section (4) then requires the Magistrate to proceed to.
take the evidence of such persons as may be produced by the prosecution as witnesses to the actual commission of the offence and also empowers the Magistrate to take the evidence of any other witness for the prosecu tion if he thinks it necessary to do so in the interest of justice.
The accused is given liberty under sub section (5) to cross examine the witnesses examined under sub sec tion (4) and subsection (6) provides that the Magistrate shall, if necessary, examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him and thereafter give to the prosecution and the accused an opportunity of being heard.
If the Magis trate, at the end of this procedure, feels that there is no ground for committing the accused for trial, he is bound to discharge the accused under subsection (6).
But where "upon such evidence being taken.
, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard," the Magistrate forms an opinion that the accused should be committed for trial, sub section (7) provides that the Magistrate shall frame a charge under his hand declaring with what offence the accused is charged.
Sub section (8) then requires the Magistrate to real and explain the charge to the accused and to give a copy thereof to him free of cost.
Sub section (9) provides that the accused shall then be required to give in at once, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence at the trial and when the accused on being required to.
give the list under sub section (9) declines to do so., or gives such list, the Magistrate is empowered under sub section (10) to make an order committing the accused for trial by the Court of Session.
It will thus be seen that, according to this procedure, the Magistrate is required to frame a charge and to read and explain it to the accused before making an order of committal and the accused is in fact committed to stand his trial before the Court of Session on the charge so framed.
This was the procedure followed by the Judicial Magistrate in the present case and in accordance with it, the Judicial Magistrate framed a charge against the respond ents and committed them for trial to.
the Court of Session on this charge.
The procedure to be followed by the Sessions Court when an accused is committed to it for trial is laid down in Chapter XXII of the old Code.
Section 271 provides that when the court is ready to commence trial, the accused shall appear or be brought before it and the charge shall be read out and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried.
That is the first step to be taken by the Sessions Court in relation to the case committed to it for trial.
Nov, obvi ously, the charge that is required to be read out and ex plained to the accused is the charge that has been framed by the Committing Magistrate under sub section (7) 355 of section 207A.
There is no provision in Chapter XXIII which requires the Sessions Court to frame a charge before proceeding with the trial of the accused.
That is plainly unnecessary because a charge is already framed by the Magis trate when he commits the accused for trial to the Sessions Court and that is the charge on which the Sessions Court is to try the accused.
Of course, the Sessions Court is given an overriding power under section 226 that when it finds that an accused is committed for trial without a charge or the charge is imperfect or erroneous, it may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in the old Code as to the framing of charges.
But this is only an enabling power to frame a charge where, for some reason or the other, no charge has been framed by the committing Magistrate or to correct a charge where the charge is imperfect or erroneous.
It does not say that in every case the Court of Session shall frame a new charge before proceeding with the trial.
On the contrary, it clearly postulates that ordinarily there would be a charge framed by the committing Magistrate and it is on that charge that the accused would be tried, unless the Court of Session finds it necessary to alter or amend the charge.
It is interesting to compare the procedure under the new Code where there is no provision for framing a charge by the committing magistrate and it is only when the Court of Session to which the case is committed finds, after considering the record of the case and the documents submit ted therewith and after hearing the submissions of the accused and the prosecution, that there is ground for presuming that, the accused has committed an offence which is exclusively triable by the Court of Session, that it is required by section 220 of the new Code to frame a charge against the accused.
The charge against the accused under the procedure prescribed in the new Code is to be framed for the first time by the Court of Session while according to the procedure prescribed under the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the power to alter or amend the charge, if it thinks necessary to do so.
It is, therefore, clear that when the Court of Session commences the trial of an accused, there is already before it a charge framed by the committing Magistrate and it is that charge, unless altered or amended under section 226, that is required to be read out and explained to the accused and on which the plea of the ac cused is required to be taken.
It must follow inevitably as a necessary corollary from this proposition that when the prosecution against an accused who has been committed for trial is allowed to be withdrawn by the Court of Session under section 494, the withdrawal of the prosecution would be after the framing of the charge against the accused and it must result in the acquittal of the accused under clause (b) of that section.
We find that this view which we are taking has prevailed with the Madras High Court since the last about eight or nine decades.
The Madras High Court held as far back as 1888 in Queen Empress vs Sivarama(1) that where an accused is committed to stand his trial before a court of session on a Charge and the prosecution is withdrawn by (1) 356 the public prosecutor with the consent of the court of session under section 494, the accused is entitled to be acquitted and not merely discharged.
The same view was reiterated by the Madras High Court in In re Velayudha Mudali(1).
We are in agreement with the view taken in these two decisions of the Madras High Court.
We accordingly affirm the decision of the High Court holding that by reason of the Order dated 29th June, 1974 passed by the Sessions Judge granting consent to the with drawal from the prosecution in the earlier case, the re spondents were acquitted and in view of section, 300 of the new Code, they were not liable to be tried again for the same offence and dismiss the appeal.
P.B.R. Appeal dismissed.
(1) A.I.R 1949 Mad.
| IN-Abs | Section 494 of the Code of Criminal Procedure 1893 provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict and in other cases before the judgment is pro nounced.
withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal (a) if it is made before a charge has been framed the accused shall be discharged; and (b) if it is made after the charge has been framed or when under the Code no charge is required, he shall be acquitted.
In the instant case, the committing Magistrate framed a charge against the respondents for having committed an offence under section 302 read with section 34 I.P.C. and committed them for trial by a Sessions Court.
The Sessions Judge granted permission sought by the Public Prosecutor to with draw from the prosecution under section 494 of the Code and "discharged" the respondents.
After fresh investigation a new charge sheet was filed.
By then the Code of Criminal Procedure 1973 had come into force.
Following the provisions of the new Code, the commit ting Magistrate committed the respondents to stand trial before the Sessions Court for the same offence.
When the case came up for trial, the respondents contended that by virtue of the earlier orders of the Sessions Court, they had been acquitted and that they were not liable to be prosecut ed again for the offence in view of section 300 of the new Code.
This was rejected on the ground that they had earlier been "discharged" and not acquitted and that section 300 had no appli cation to their case.
The High Court allowed their revision application holding that since the withdrawal from the prosecution in the earlier case was made after the charge had been flamed, the respondents had been acquitted and the bar of section 300 was attracted.
Dismissing the appeal, HELD: The High Court was right in holding that by reason of the order of the Sessions judge granting consent to the withdrawal from the prosecution in the earlier case, the respondents were acquitted and in view of section 300 they were not liable to be tried again for the same offence.
[356B] (1) Section 484 of the new Code provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force.
[352H] In the instant case, when the new Code came into force the case was pending before the Court of Session for trial and so was liable to be tried according to the old Code.
It was for this reason that the withdrawal application was made under section 494 of the old Code.
[353A B] (2) (a) When the prosecution against an accused commit ted for trial is allowed to be withdrawn by the Court of Session under section 494 of the old Code, 351 the withdrawal of the prosecution would be after the framing of the charge against the accused and it must result in the acquittal of the accused under el.
(b) of that section.
[355G] (b) The charge against an, accused under the procedure prescribed in the new Code is to be framed for the first time by the Court of Session while according to the proce dure prescribed under the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the vower to alter or amend the charge, if it thinks necessary to do so.
Therefore, when under the old Code, the Court of Session commences the trial of an accused, there is already before it a charge framed by the committing Magis trate and it is that charge that is required to be read out and explained to the accused.
and on which the plea of the accused is required to be taken.
[355D F] (c) In the instant case, the Judicial Magistrate fol lowed this procedure and after framing the charge committed the respondents for trial.
[354G] Queen Empress vs Sivarama, and In re.
Ve layudha Mudali, A.I.R. 1949 Mad 508, approved.
|
Appeal No. 183 of 1952.
Appeal by special leave from the Judgment and Decree dated the 16th day of February 1950 of the Madras High Court in Second Appeal No. 1826 of 1945 from Original Decree dated the 16th March, 1945, of the Court of District Judge, East Godavari at Rajahmundry in A.S. No. 32 of 1943 arising out of the Decree dated the 31st October, 1942, of the Court of Sub Judge, Rajahmundry in Suit No. 17 of 1940 and O.S. No. 39 of 1939.
B. Somayya (K. R. Chaudhury and Naunit Lal, with him) for the appellant.
K. section Krishnaswamy Aiyangar, (K. R. Krishnaswamy, with him) for respondents Nos.
I to 4. 1955.
November 4.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal by special leave against the judgment of the Madras High Court in a second appeal which reversed the concurrent judgments of the courts below, and granted a decree 941 in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent of 503 acres 18 cents in the village of Kalavacherla and of 10 acres 12 cents out of a parcel of land of the extent of 40 acres 47 cents in the village of Nandarada, with mesne profits, past and future.
All these lands measuring 543 acres 65 cents were purchased by five co sharers on 5 6 1888 under two sale deeds, Exhibits P and P 1.
One of these shares of the extent of about 218 acres was, at the material dates, held in common by two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45 cents.
On 19 8 1908 Kumara executed a simple mortgage, Exhibit Q, over 81 acres 45 cents belonging to him for Rs. 1,000 in favour of Nallapparaju, who with his undivided brother, Achutaramaraju, held a share in the two parcels of land aforesaid in Kalavacherla and Nandarada.
On 19 7 1909 both Rangaraju and Kumara executed a mortgage, Exhibit A, for Rs. 2,000 over all the 218 acres belonging to them in favour of Achutaramaraju.
On 4 6 1910 Kumara again created a mortgage over 81 acres 45 cents belonging to him, Exhibit Q 1 for Rs. 2,500 in favour of Achutaramaraju.
On 14 12 1911 Achutaramaraju executed a mortgage for Rs. 14,000 in favour of one Merla Agastayya, Exhibit C, over the properties which he held in full ownership as co sharer, and also the mortgage right which he held over the properties belonging to Rangaraju and Kumara under the three mortgage deeds, Exhibits Q, A and Q 1.
On 29 8 1920 Kumara sold the 81 acres 45 cents belonging to him and comprised in the mortgages aforesaid to Achutaramaraju for Rs. 11,000 as per Exhibit G, and thereby the two deeds, Exhibits Q and Q 1 became completely discharged and Exhibit A to the extent of the half share of Kumara.
The position then was that Achutaramaraju became the owner of 81 acres 45 cents out of the properties mortgaged under Exhibit A, and continued to be a simple mortgagee as regards the rest of them to the extent of half the amount due therein.
By virtue of section 70 of the Transfer of 942 Property Act, the sale under Exhibit G would enure for the benefit of the mortgagee, Merla Agastayya, being an accession to the interest of his mortgagor.
On 20 1 1924 the representatives of Merla Agastayya assigned their interests in the mortgage, Exhibit C, to the present appellant, who instituted O.S. No. 25 of 1927 on the file of the court of the Subordinate Judge of Kakinada to recover the amount due thereon by sale of the hypotheca.
Achutaramaraju, the mortgagor, and the members of his family were defendants I to 4 in that suit.
Kumara was impleaded as the 14th defendant and Rangaraju and his son as defendants 15 and 16.
In the plaint, it was alleged that the properties comprised in the mortgage deed, Exhibit C, consisted of the properties belonging to the mortgagors in full ownership as co sharers and also of the mortgage right under Exhibits Q, A and Q 1.
Then there was an allegation that defendants I to 4 had themselves purchased the mortgaged properties "towards discharge of the first defendant 's mortgage debts".
As a statement of fact, this was not accurate, because the purchase by Achutaramaraju was only of 81 acres 45 cents belonging to Kumara and the re maining properties continued to be held by Rangaraju, and Achutaramaraju was only a mortgagee thereof under Exhibit A.
There were the further allegations that defendants 14 to 16 were impleaded as parties because they were in possession of the properties, and that they were the predecessors in title in respect of the properties which were mortgaged under Exhibits Q, A and Q 1.
Then there was the general prayer for the sale of the properties.
The mortgagors, defendants 1 to 4, entered into a compromise with the plaintiff, while defendants 14 to 16 remained expert.
On 31 1 1931 the suit was decreed in terms of the compromise as against defendants I to 4 and ex parte as against defendants 14 to 16, and a final decree was passed on 6 11 1932.
On 23 8 1934 the decree holder filed E.P. No. 99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Exhibit A. Defendants 15 and 16 then intervened, and filed an objection to 943 their being sold on the ground that the mortgage had been discharged in 1923, and that the exparte decree against them had been obtained fraudulently.
This application was rejected by the Subordinate Judge on 26 8 1935, and an appeal against this order to the High Court, Madras was also dismissed on 1 9 1938.
Meanwhile, 163 acres 18 cents out of the properties mortgaged under Exhibit A, of which 81 acres 86 1/2 cents belonged to Rangaraju, were brought to sale on the 14th and 15th April 1936, and purchased by the decree holder himself.
The sale was confirmed on 26 6 1936, and possession taken on 15 12 1936.
But before possession was taken, on 14 12 1936 Rangaraju and his sons instituted O.S. No. 268 of 1936 in the District Munsif 's court, Rajahmundry for a declaration that the decree in O.S. No. 25 of 1927 had been obtained fraudulently, and that the decree holder was not entitled to execute the decree as against their pro perties.
An objection was taken to the jurisdiction of the court of the District Munsif to try this suit, and eventually, the plaint was returned to be presented to the proper court.
Thereupon, they instituted on 7 8 1939 the present suit, O.S. No. 39 of 1939 on the file of the District Court, East Godavari for a declaration that the decree in 0.
section No. 25 of 1927 was obtained by suppressing service of summons, and was therefore void and could not affect their title to 136 acres 45 cents which were mortgaged under Exhibit A.
The suit was transferred to the court of the Subordinate Judge of Rajahmundry, and was numbered as O.S. No. 79 of 1946.
In his written statement, the appellant denied that the decree in O.S. No. 25 of 1927 was obtained fraudulently, and contended that the present suit was barred by limitation.
He also pleaded that as he had purchased the properties in execution of the decree and obtained possession thereof, the suit which was one for a bare declaration that the decree was void and inexecutable was not maintainable.
It must be mentioned that while 81 acres 86 1/3 cents of land belonging to Rangaraju and his sons had been sold on the 14th and 15th April 1936, their remaining properties of the 944 extent of 54 acres 58 1/2 cents were sold after the insti tution of O.S. No. 268 of 1936 in the court of the District Munsif, Rajahmundry.
In view of the objections aforesaid, the plaintiffs amended the plaint by adding a prayer that 136 acres 45 cents out of the total of 543 acres 65 cents in schedule A and belonging to them might be partitioned and put in their separate possession.
The Subordinate Judge of Rajahmundry dismissed the suit on the ground that no fraud had been established, and that the suit was barred by limitation in so far as it sought to set aside the decree on the ground of fraud.
The plaintiffs appealed against this judgment to the District Court of East Godavari, which by its judgment dated 16th March 1945 affirmed the decree of the Subordinate Judge.
The plaintiffs then preferred Second Appeal No. 1826 in the High Court, Madras.
There, for the first time the contention was pressed that the decree in O.S. No. 25 of 1927 on its true construction directed a sale only of the mortgage rights which Achutaramaraju had over the A schedule properties, and that the sale of the properties themselves in execution of that decree was in excess of what the decree bad directed., and was therefore void, and that the plaintiffs were accordingly entitled to recover possession of those properties ignoring the sale.
Satyanarayana Rao, J. who heard the appeal, construed the plaint as sufficiently raising this question and issue (2) (b) as covering this contention, and accordingly directed the District Judge to return a finding on the question as to whether the sale of the properties was warranted by the terms of the decree.
The District Judge of East Godavari to whom this issue was referred, held that the decree directed the sale of only the mortgage rights of Achutaramaraju under Exhibit A. and that the sale of the properties themselves was not in accordance with the decree.
But he further held that this was an objection relating to the execution of the decree which could be agitated only before the executing court, and that a separate suit with reference to that matter was barred under section 47, Civil 945 Procedure Code.
On this finding, the second appeal came up for final disposal before Satyanarayana Rao, J. who agreed with the District Judge that the sale of the properties was not authorised by the decree, and was therefore void.
But he declined to entertain the objection that the suit was barred by section 47, Civil Procedure Code, on the ground that it had not been taken in the written statement, and was a new contention preferred for the first time at the stage of second appeal.
In the result,, he granted a decree for partition and delivery of 136 acres 45 cents out of the properties mentioned in schedule A to the plaintiffs, and mesne profits, past and future.
Against this judgment, the defendant prefers the present appeal, and insists that the suit is liable to be dismissed as barred by section 47, Civil Procedure Code.
On behalf of the appellant, it was contended by Mr. Somayya that the question whether having regard to section 47 the suit was maintainable was argued before the learned Judge before he called for a finding, and that it ought to have been therefore considered on the merits, and that, in any event, as it was a pure question of law and went to the root of the matter, it ought to have been entertained.
On behalf of the respondents, Mr. Krishnaswami Iyengar vehemently contends that as the objection to the maintainability of the suit based on section 47 was not taken in the written statement, the learned Judge had a discretion whether he should permit the point to be raised for the first time in second appeal or not, and that we should not interfere with the exercise of that discretion in special appeal.
The basis on which the suit has now been decreed is that the decree in 0.
section No. 25 of 1927 properly construed directed only a sale of mortgage rights under Exhibit A and not of the properties, but it must be conceded that this point does not distinctly emerge on the face of the plaint.
It is true that there are allegations therein which might be read as comprehending that question, but they are vague and elusive, and what is more, this contention was not argued either in the court of the 946 Subordinate Judge of Rajahmundry or in the District Court of East Godavari, and it is only in second appeal that the question appears to have been first thought of in this form.
Though we are not prepared to say that the allegations in the plaint are not.
sufficient to cover this point, we are of the opinion that they are so obscure that it is possible that the appellant might have missed their true import, and omitted to plead in answer thereto that the suit was barred by section 47.
Apart from this, it is to be noted that this point does not involve any fresh investigation of facts.
Indeed, when the matter was before the District Judge in pursuance of the order of the High Court calling for a finding, counsel on both sides understood it as involving a decision on this point as well, and the argument proceeded on the footing that it was a pure question of law involving no further enquiry on facts.
We have therefore permitted the appellant to raise this contention.
Mr. Somayya for the appellant does not challenge the finding of the District Court confirmed by the High Court that the decree directed only the sale of the mortgage rights of Achutaramaraju under Exhibit A, but he contends that the sale in execution of that decree of not merely the mortgage rights under Exhibit A but of the properties themselves was excessive execution against which the judgment debtor was entitled to obtain relief by application to the execution court, and that a separate suit with reference thereto would be barred under section 47, Civil Procedure Code.
It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under section 47, Civil Procedure Code and not in a separate suit.
In J. Marret vs Md. K. Shirazi & Sons(1) the facts were that an order was made by the execution court directing, contrary to the terms of the decree, payment of a certain fund to the decree holder.
A separate suit (1) A.I.R. 1930 P.C. 86. 947 having been instituted by the judgment debtor for recovery of the amount on the ground that the payment was not in accordance with the decree, it was held by the Privy Council that the action was barred under section 47.
A case directly in point is Venkatachalapathy Aiyen vs Perumal Aiyen(1).
There, the suit was to enforce a mortgage which related both to properties held in ownership by the mortgagor and mortgage rights held by him.
In execution of the decree passed therein, the properties themselves and not merely the mortgage rights were sold.
The judgment debtor then sued for a declaration that what was sold was only the mortgage right and to recover possession of the properties.
It was held that such a suit was barred under section 47.
Vide also the decisions in Biru Mahata vs Shyama Charan Khawas(2), Abdul Karim vs Islamunnissa Bibi(3) and Lakshmi narayan vs Laduram(4).
The position is, in our opinion, too well settled to be open to argument, and it must accordingly be held that the present suit is barred under section 47, Civil Procedure Code.
That, however, does not conclude the matter.
Section 47, clause (2) enacts that "the Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding. . .
Under this provision, this Court has the power to treat the plaint presented on 7 8 1939 as an application under section 47 provided that on that date an application for the relief claimed was not barred by limitation, and provided further that the court in which it was filed was competent to execute the decree.
On the question of limitation, the relevant dates are the 14th and 15th, April 1936, when 81 acres 861 cents belonging to the plaintiffs were sold, and 15th December 1936 when possession was taken thereof through court.
As regards the remaining properties, the exact date on which they were, sold does not appear on the record, but it is sufficient for the present purpose that it was subsequent to the institution of O.S. No. 268 of 1936 on 2,0.4 (1) (2) Cal.
(3) All. 339.
(4) [1931] A.I.R. 1932 Bom.
120 948 the file of the District Munsif 's court, Rajahmundry, which was on 14 12 1936.
Now, the point for determination is whether the plaint was barred by limitation either under article 165 or article 166 of the Indian Limitation Act, if it is treated as an execution application presented.
on 7 8 1939, or whether it was in time under article 181.
Under article 165, an application by a person dispossessed of immovable properties and disputing the right of the decree holder or purchaser at an execution,sale to be put in possession must be filed within 30 days of dispossession.
If this is the article applicable to the present proceedings, then it must be held that the plaint treated as an execution application was filed out of time.
In Vachali Rohini vs Kombi Aliassab(1), a Full Bench of the Madras High Court has held, dissenting from the view previously ex pressed in Ratnam Aiyar vs Krishna Doss Vital DSS(2) and following Abdul Karim vs Mt.
Is amunnissa Bibi (3), that this article applies only to applications for being restored to possession by persons other than judgment debtors, as under Order XXI, rule 100, Civil Procedure Code and that applications by judgmentdebtors claiming relief on the ground that their properties had been erroneously taken in execution of the decree are not governed by it.
This view was approved and followed in Rasul vs Amina (4) and Bahir Das vs Girish Chandra(1).
We are of the opinion that the law has been correctly laid down in the above decisions, and that in accordance therewith, the present proceedings are not barred by article 165.
Coming next to article 166, an application by a judgment debtor to set aside a sale in execution of a decree has, under that article, to be filed within 30 days of the sale.
If the present proceedings are governed by this article, there can be no question that they are barred by limitation.
But then, there is abundant authority that article 166 applies only when the sale is one which has under the law to be 2,0.4 (1) Mad.
(2) Mad.
(3) All. 339 (4) Bom.
(5) [1922) A.I.R. 1923 Cal.
949 set aside as for example, under Order XXI, rules 8990 and 91, but that it has no application when the sale is inoperative and void.
In Seshagiri Rao vs Srinivasa Rao(1), the appellant was a party to the suit, but the decree had exonerated him from liability.
In execution of the decree, his three fourths ' share in the properties was sold on 26 1 1910 and purchased by the decree holder and possession delivered to him on 16 12 1910.
The appellant then filed a suit on 25 7 1911 to set aside the sale on the ground that it was in contravention of the decree and therefore void.
An objection having been taken by the defendant that the suit was barred under section 47, the court, while upholding the same, held that the plaint could be treated as an application under that section if it was in time as an execution application, and the question arose for decision whether the application was governed by article 166 or article 181 of the Indian Limitation Act.
It was held that as the sale was a nullity, it had not to be set aside under the law, and therefore the article applicable was article 181 and not article 166.
This statement of the law was ap proved by a Full Bench of the Madras High Court in Rajagopalier vs Ramanujachariar.
A similar decision was given in, Manmothanath Ghose vs Lachmi Devi(1), wherein it was observed by Page, J. that the sale being void need not have been set aside at all, and the order to be passed was "in substance merely a declaration that the sale was null and of no effect".
The question whether an application by a judgmentdebtor for setting aside a sale on the ground that there was excessive execution and that the sale of his properties was in consequence void was governed by article 166 or article 181 came up directly for consideration in Nirode Kali Roy vs Harendra Nath(1).
In holding that the application was governed by article 181, B. K. Mukherjea, J., (as he then was) observed that "article 166 must be confined to cases where the sale is voidable only and not void when the execution sale is a nullity, if a party files an application under (1) Mad. 813.
(2) [ Mad. 288.
(3) Cal 96.
(4) I.L.R. , 950 section 47 to have it pronounced a nullity or for setting it aside for safety 's sake to avoid future difficulties, the proper article would be article 181 and not article 166 of the Indian Limitation Act".
The decisions in Seshagiri Rao vs Srinivasa Rao(1) and Rajagopalier vs Ramanujachariar(2) were again followed in Ma We Gyan vs Maung Than Byu(3), wherein it was held that if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer, that would not affect the real nature of the application which was really "for an order directing the respondent to deliver property on the ground that there was no valid sale".
We are in agreement with these decisions, and hold that when a sale in execution is inoperative and void, an application by a judgment debtor to have it declared void and for appropriate reliefs is governed by article 181 and not article 166.
On the findings of the courts below that the decree in O.S. No. 25 of 1927 properly construed authorised only the sale of the mortgage rights of Achutaramaraju under Exhibit A and not the lands which were the subject matter of that mortgage, the respondents were entitled to apply to the court for delivery of possession of the properties wrongly sold through process of court and delivered to the appellant, and such an application would be governed by article 181.
Then, there is the further question whether applying article 181, the plaint presented on 7 8 1939 was within time under that article.
As already stated, 81 acres 581 cents were sold on the 14th and 15th April 1936.
If the starting point of limitation is the date of sale, then the application must be held to be barred, unless the period during which the suit was pending in the court of the District Munsif, Rajahmundry, is deducted under section 14 of the Indian Limitation Act.
But if limitation is to be reckoned from the date of dispossession, then the application would clearly be in time.
Under article 166, an application to set aside a sale must be presented within 30 days thereof.
(1) Mad. 313.
(2) (1923] I.L.R. 47 Mad.
(3) A.I.R. 1937 Rang.
951 But if the sale in question was void, and for that reason article 166 becomes inapplicable, then the date of the sale must vanish as the starting point of limitation, as it has no existence in law.
It is not until the purchaser acting under colour of sale interferes with his possession that the person whose properties have been sold is really aggrieved, and what gives him right to apply under article 181 is such interference or dispossession and not the sale.
As observed in Ma We Gyan vs Maung Than Byu(1), such an application is really one for an order for redelivery of the properties wrongly taken possession of by the purchaser.
If that is the correct position, the right to apply arises by reason of dispossession and not of sale, and the starting point for limitation would be the date of dispossession.
It was so held in Chengalraya vs Kollapuri(2).
There, the properties of a party to the suit who had been exonerated by the decree were sold in execution of that decree on 8 1 1918 and purchased by the decree holder.
It was found that lie took actual possession of the properties in 1919.
On 23 11 1921 the representatives in interest of the exonerated defendant commenced proceedings to recover possession ,of the properties from the decree holder purchaser on the ground that the sale under which he claimed was void.
It was held that the proper article of limitation applicable was article 181, and that time commenced to run under that article from the date not of sale but of actual dispossession, and that the proceedings were accordingly in time.
We agree with this decision, and hold that an application by a party to the suit to recover possession of properties which had been taken delivery of under a void execution sale would be in time under article 181, if it was filed within three years of his dispossession.
Therefore, there is no legal impediment to the plaint filed on 7 8 1939 being treated as an application under section 47, on the ground that it is barred by limitation.
The next question for consideration is whether the present suit was filed in a court which had jurisdiction to execute the decree in O. section No. 25 of 1927.
(1) A.I.R. 1937 Rang.
(2) A.I.R. 1930 mad.
12. 952 That was a decree passed by the Subordinate Judge of Kakinada, whereas the present suit was filed in the District Court, East Godavari to which the court of the Subordinate Judge of Kakinada is subordinate.
Section 38, Civil Procedure Code provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution.
The District Court of East Godavari is neither the court which passed the decree in O.S. No. 25 of 1927 nor the court to which it had been sent for execution.
But it is common ground that when the present suit was instituted in the District Court, East Godavari, it had jurisdiction over the properties, which are the subject matter of this suit.
It is true that by itself this is not sufficient to make the District Court of East Godavari the court which passed the decree for purpose of section 38, because under section 37, it is only when the court which passed the decree has ceased to have jurisdiction to execute it that the court which has jurisdiction over the subject matter when the execution application is presented can be considered as the court which passed the decree.
And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court.
Vide Seeni Nadan vs Muthuswamy Pillai(1) Masrab Khan vs Debnath Mali(1) and Jagannath vs Ichharam(3).
But does it follow from this that the District Court, East Godavari has no jurisdiction to entertain the execution application in respect of the decree in O.S. No. 25 of 1927 passed by the court of the Subordinate Judge, Kakinada? There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subjectmatter of a decree is transferred to another court, that court is also competent to entertain an application for execution of the decree.
Vide Latchman vs Madan Mohun (4), Jahar vs Kamini Devi(1) and Udit Narayan vs Mathura Prasad(6).
But in Ramier vs 2,0.3 (1) Mad. 821.
F.B. (2) I.L.R. (3) A.1 R. (4) Cal.
(5) (6) Cal.
974. 953 Muthukrishna Ayyar(1), a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of transfer by the court which passed the decree, that court alone can entertain an application for execution and not the court to whose jurisdiction the subject matter has been transferred.
This view is supported by the decision in Masrab Khan vs Debnath Mali(1).
It is not necessary in this case to decide which of these two views is correct, because even assuming that the opinion expressed in Ramier vs Muthukrishna Ayyar(1) is correct, the present case is governed by the principle laid down in Balakrishnayya vs Linga Rao(1).
It was held therein that the court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution appli cation with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings.
That precisely is the position here.
We have held that the allegations in the plaint do raise the question of excessive execution, and it was therefore open to the appellant to have raised the plea that the suit was barred by section 47, and then, there could have been no question of waiver.
We have, it is true, permitted the appellant to raise the contention that the present suit is barred by section 47, and one of the reasons therefor is that the allegations in the plaint are so vague that the appellant might have missed their true import.
But that is not a sufficient ground for relieving him from the consequence which must follow on his failure to raise the objection in his written statement.
We agree with the decision in Balakrishnayya vs Linga Rao(,), and hold that the objection to the District Court enter taining an application to execute the decree in 0.
section No. 25 of 1927 is one that could be waived and not (1) Mad. 801.
(2) I.L.R. (3) I.L.R. 954 having been taken in the written statement is not now available to the appellant.
There is thus no legal bar to our treating the plaint presented by the respondents on 7 8 1939 as an execution application under section 47, and in the interests of justice, we direct it to be so treated.
But this should be on terms.
We cannot ignore the fact that it is the gross negligence of the respondents at all stages that has been responsible for all the troubles.
They did not appear in the suit, and put forward their rights under Exhibit A.
They intervened at the stage of execution, but their complaint was mainly that the ex parte decree had been obtained by fraud, a plea which has now been negatived.
Even in this suit.
they did not press the plea on which they have succeeded until they came to the High Court.
Under the circumstances, we think it just that they should be dep rived of all claims for mesne profits down to this date.
In the result, treating the plaint as I an execution application, we direct that the properties mentioned in schedule A to the plaint be partitioned and the respondents put in possession of 126 acres 33 cents in Kalavacherla village and of 10 acres 12 cents in Nandarada village in proceedings to be taken in execution of this order.
The respondents will be entitled to their share of the net income attributable to 136 acres 45 cents aforesaid from this date down to the date on which they are put in separate possession thereof.
Subject to the modification of the decree of the court below as stated above, this appeal will stand dismissed.
The parties will, however, bear their own costs throughout.
| IN-Abs | The appellant was the assignee of a mortgage dated 14 12 1911, executed by A, which comprised.
lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on 19 7 1909.
The appellant instituted a suit in the court of the Subordinate Judge of Kakinada, for the recovery of the amount due on the mortgage, dated 14 12 1911, and prayed for sale of the hypotheca.
The respondents were impleaded as defendants but did not appear.
The suit was decreed ex parte, and in execution of the decree, the properties of the respondents, mortgaged to A on 19 7 1909, were brought to sale, and purchased by the decree holder.
The respondents then instituted the present suit in the District Court of East Godavari which then bad jurisdiction over the properties in suit, for a declaration that the decree obtained by the appellant was fraudulent and inoperative and could not affect their title.
The plaint was later on amended and a prayer added that the properties might be partitioned and the respondents put in separate possession of their share.
The trial Judge dismissed the suit and the District Court in appeal affirmed his decision.
Before the High Court in second appeal it was contended for the first time that the decree in question did not direct a sale of the mortgaged properties but a sale of the mort gagee 's rights under the mortgage deed dated 19 7 1909 and as such the sale of the properties was void.
The High Court having called for a finding from the District Court as to what was sold, it was 939 found by that Court that the decree bad really directed a sale of the mortgagee 's rights and not of the properties mortgaged and that there was excessive execution.
It was, however, of opinion that the point should have been taken before the executing court and the suit in so far as it claimed relief on the basis of excessive execution was barred under section 47 of the Code of Civil Procedure.
The High Court declined to entertain the objection that the suit was barred under section 47 as it had not been taken in the written statement and was raised for the first time in second appeal, and decreed the respondent 's suit.
It was contended for the appellant that the High Court should have entertained the objection and held that the suit was so barred.
Held, that the appellant should be permitted to raise the contention.
The point relating to excessive execution had never been specifically raised except before the High Court and the allegations in the plaint were vague and obscure.
It is a pure question of law which requires no further investigation of facts and was understood and debated as such by the parties before the District Court.
That it was well settled that the question whether an execution sale was in excess of the decree and, therefore, not warranted by it could be raised as between the parties only by an application under section 47 of the Code before the executing court and not by a separate suit.
J. Marret vs Md. K. Shirazi & Sons (A.I.R. 1930 P. C. 86), Venkatachalapathy Aiyen vs Perumal Aiyen ([1912] M.W.N. 44), Biru Mohata vs Shyania Charan Khowas ([1895] I.L.R. , Abdul Karim vs Islamunnissa Bibi ([1916] I.L.R. 38 All. 339) and Lakshminarayan vs Laduram ([1931] A.I.R. , approved.
That the court, however, had the power to treat the plaint in the suit as an application under section 47 subject to any objection as to limitation or jurisdiction.
That the application was not barred under article 165 as it ap plied only to applications for restoration to possession by persons other than judgment debtors and bad no application to the present case.
Vachali Bohini vs Kombi Aliassan '([1919] I.L.R. 42 Mad. 753), Batnam Aiyar vs Krishna Doss Vital Doss ([1897] I.L.R. , Basul vs Amina ([1922] I.L.R. and Bahir Das vs Girish Chandra ([1922] A.I.R. 1923 Cal.
287), approved.
Nor could article 166 apply since it had application only where the sale was voidable and not void and had to be set aside.
That the article applicable to a case of a void sale such as the present was article 181 of the Indian Limitation Act.
Seshagiri Rao vs Srinivasa Rao ([1919] I. , Bajagopalier vs Bamanujachariar ([1923] I.L.R. 47 Mad. 288), Manmothanoth Ghose vs Lachmi Devi ([1927] I.L.R. 55 Cal.
96), Nirode Kali Boy vs Harendra Nath (I.L.R. [1938] 1 Cal. 280), and 119 940 Md We Gyan vs Maung Than Byu (A.I.R. 1937 Rang.
126), ap proved.
That the starting point of limitation for an application under article 181 would be the date of dispossession by the purchaser and not the date of the void sale which had no existence in law and the plaint in the present suit, treated as an application, having been filed ,within 3 years of such dispossession was in time.
Chengalraya vs Kollapuri (A.I.R. , approved.
That the District Court of East Godavari to whose jurisdiction the properties had been transferred before the present suit was instituted had by reason of such transfer acquired an inherent jurisdiction over them and if it entertained an application for execution with reference to them such action was no more than an irregular assumption of jurisdiction and no objection to jurisdiction having been taken by the appellant at the earliest opportunity he must be deemed to have waived it and, consequently, there was no legal bar to treating the plaint as an execution application under section 47 of the Code.
Balakrishnayya vs Linga Bao, (I.L.R. , applied.
Case law discussed.
|
ivil Appeal No. 432 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 4 10 1974 of the Rajasthan High Court in D. B, Civil Special Appeal No. 134 of 1973).
L. M. Singhvi, K.B. Rohtagi, section K. Dhingra, Vijay, K. Jain and M.M. Kashyap, for the appellant.
Mrs. Shyamla Papu, R.N. Sachthey and Girish Chandra, for respondents.
The Judgment of the Court was delivered by RAY, C.J.
In this matter leave was granted on 30 March, 1972.
Leave was confined to the question whether Union of India is a necessary party.
Leave was granted because it was contended that there were decisions to support the appellant 's contention, that the Union of India is not a necessary party.
We gave leave to settle this question.
410 The appellant applied under Article 226 in the High Court of Rajasthan.
The appellant was an employee of the Northern Railway.
He was removed from service with effect from, 2 January 1969.
His appeal against the order of removal was rejected by the General Manager.
The appellant felt aggrieved and filed the application under Article 226.
The trial court rejected the application on the ground that the Union of India was not impleaded.
On appeal the Division Bench affirmed the decision of the trial court and held after referring to two decisions of this Court that the Union of India is a necessary party.
Counsel for the appellant contended that the General Manager is the authority to hear these matters regarding the removal, and, therefore, that is the appropriate party.
Reliance was placed in support of the contention on the decision Hari Vishnu Karnath vs Ahmad Syed Isak & Ors.(1).
That was a case relating to an Election Petition.
The contention was advanced that the Union of India was a necessary party because the Election Commission is required to transmit copies of order of the Tribunal to the Speaker of the House and to publish the same in the Gazette.
The Nagpur High Court rejected the contention that the Union was a necessary party on that ground.
This decision can by no stretch of imagination be of any aid to the appellant in the present case.
Counsel for the appellant relied on the decision of the Punjab High Court in Observer Publications Pvt. Ltd. vs Railway Board, Ministry of Railways, Government of India, New Delhi(2).
The petitioner in that case made an applica tion under Article 226 to question the validity of the ban imposed by the Railway Board on the news weekly "Indian Observer".
At page 421 of the report the question of compe tency of the petition was discussed.
The High Court said that it was accepted by both parties that the Railway Board was acting under a "notification issued in this behalf ' and the Railway Board .was thus invested with all the powers of the Central Government.
The High Court held that it was not necessary in that situation for the petitioner in that case to implead the Union Government and it could not be contend ed that the petition should fail on that ground.
There is no discussion on the question now canvassed here.
This decision is also of no aid to the appellant for the reasons indicated now.
It cannot be disputed that the appellant was a servant of the Union.
It is equally indisputable that any order of removal is removal from service of the Union.
The appellant challenged that order.
Any order which can be passed by any Court would have to be enforced against the Union.
The General Manager or any other authority acting in the Railway administration is as much a servant of the Union as the appellant was in the present case.
(1) A.I.R. 1954 Nag.
(2) 411 The Union of India represents the Railway administra tion.
The Union carries administration through different servants.
These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal.
It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union.
Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party.
The petition was rightly rejected by the High Court.
The appeal fails and is dismissed.
Parties will pay and bear their own costs.
P.H.P. Appeal dis missed.
| IN-Abs | The appellant, an employee of the Northern Railway was removed from service.
His appeal against the order of removal was rejected by the General Manager.
The appellant feeling aggrieved filed a writ petition under article 226.
in the writ petition, the General Manager was joined as a respondent but the Union of India was not impleaded.
On appeal, the Division Bench confirmed the decision of the single Judge.
The counsel for the appellant contended that the General Manager is the authority to hear the matters regarding the removal and, therefore, he is the proper authority.
Dismissing the appeal by Special Leave, HELD: The appellant was servant of the Union.
The order of removal is removal from the service of the Union.
Any order of a court would have to be enforced against the Union.
The General Manager or any other authority acting in the Railway AdminiStration is as much a servant of the Union as the appellant was in the present case.
The Union of India represents the Railway Administration.
The Union carries administration through different servants.
Any order setting aside the removal would fasten liability on the Union of India and not on any servant of the Union.
There fore, the Union of India is a necessary party.
[410G H, 411A B] Hari Vishnu Kamnath vs Ahmad Syed Isak & Ors., A.I.R. 1954 Nagpur 166 and Observer Publications P. Ltd. vs Railway Board, Ministry of Railways, Govt.
of India, New Delhi , distinguished.
|
ivil Appeals Nos.
1987. 1988 of 1976.
(Appeals by Special Leave from the Judgment and Order dated the 25 3 1975 of the Punjab and Haryana High Court in Civil Writ Petn.
1228 & 1229 of 1975).
G.L. Singh, in CA 1988/76 with Hardev Singh, B. Datta and N.S. Sodhi, for the appellants.
Niren De, Attorney General with Devan Chetan Das, Adv.
General, Prem Malhotra and R.N. Sachthey, for respondents Nos. 1 & 2.
Anand Swarup, and Mrs. section Bhandare, for respondent No. 3. 362 The Judgment of the Court was delivered by RAY, C.J.
These appeals are by special leave against the judgment dated 25 March, 1975 of the Punjab and Haryana High Court dismissing the writ petitions.
The appellants in the writ petitions asked for a manda mus directing Respondents No. 1 and 2 to appoint the appel lants to the posts of Additional District and Sessions Judge.
The appellants also asked for a mandamus or an appropriate writ quashing the orders of Respondents No. 1 and 2 whereby the High Court was informed that the Govern ment was not prepared to appoint the appellants to the post of Additional District and Sessions Judge.
Respondent No. 1 is the State of Haryana.
Respondent No. 2 is the Chief Minister of Haryana.
Respondent No. 3 is the High Court of Punjab and Haryana.
The High Court dismissed the petitions on the ground that the appellants had no locus standi to file the peti tions.
The reason given by the High Court is that the appel lants were not appointed and they had no right to be ap pointed.
They had also no right to know why they were not appointed.
The High Court by letter dated 19 February, 1972 invited applications from eligible members of the Bar to fill up two vacancies in the quota of direct recruits from the Bar in the Haryana Superior Judicial Service.
The High Court called for interview 9 candidates on 18 October, 1972.
The High Court thereafter recommended to the Haryana Government the names of the appellants for appointment as District/Additional District & Sessions Judges.
After 27 months the Government reacted the recommendation of the High Court.
Thereupon the appellants filed writ petitions challenging the order of rejection and asked for mandamus for appointment.
There is a letter dated 8 September, 1972 from the Chief Secretary to the Government of Haryana to the Registrar of the High Court.
In that letter the Government took excep tion to the inviting of applications from members of the Bar without the High Court having first obtained the approval of the Government for that purpose.
The letter also stated that in the past two occasions the High Court obtained the approval of the State Government before inviting applica tion.
The High Court rightly dismissed the petitions.
It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.
There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus.
A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty 363 to do something or to abstain from doing something (See Halsbury 's Laws of England 4th Ed.
I, paragraph 122; State of Haryana vs Subash Chander Marwaha & Ors.(1) Jasbhai Motibhai Desai vs Roshan Kumar Haji Bashir Ahmed & Ors.
(2) and Ferris Extraordinary Legal Remedies paragraph 198.
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court.
The Governor is not bound to act on the advice of the High Court.
The High Court recommends the names of persons for appointment.
If the names are recommended by the High Court it is not obli gatory on the Governor to accept the recommendation.
Counsel for the appellants relied on the decisions of this Court in Chandra Mohan vs State of Uttar Pradesh & Ors.(3); Chandramouleshwar Prasad vs Patna High Court & Ors(4) and A. Panduranga Rao vs State of Andhra Pradesh & ORS.(5) in SUppOrt of tWO contentions.
First, the Governor should accept the recommendations made by the High Court.
Second, if the Governor will not accept the recommendations he should give reasons for not accepting the recommenda tions.
None of the decisions supports the contentions.
In these three cases the scope and content of Article 233 was examined.
This Court has held that the Constitu tion contemplates consultation of the Governor with the High Court inasmuch as the High Court is in a position to express views on the judicial work of persons who are recommended for appointment to the posts of District Judges.
The High Court knows the merits and demerits of persons who will be promoted from the service to the post.
The High Court interviews persons who will be appointed by direct recruit ment.
The High Court in those circumstances will select candidates for promotion and direct recruitment and send their names to the Government.
This Court has also held that the consultation of the Governor with the High Court does not mean that the Governor must aceept whatever advice or recommendation is given by the High Court.
Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons, selected for promotion and direct recruitment.
In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to the Government to choose a candidate for appOintment by direct recruitment or by promotion unless and until his name is recommended by the High Court.
In Panduranga Rao 's case (supra) there is an observation that the Government could tell the High Court its reasons for not accepting (1) ; (2) [19761 3 S.C.R. 58.
(3) (4) [19701 2 S.C.R. 666.
(5) ; 364 the recommendations of the High Court in regard to certain persons.
The observation in Panduranga Rao 's case (supra) was made in the facts and circumstances of that case and in particular the controversial correspondence.
In the present case the Government pointed out that the High Court had not written to the Government about the proposed appointments before issuing advertisements there for.
In any event, after the Government communicated to the High Court that the recommendations were not accepted a new situation developed.
The Government asked the High Court to issue advertisements and to invite applications for appointment to the posts.
The High Court accepted that position and acted upon it.
The High Court issued the advertisements.
The attitude of the High Court has been peculiar.
When the High Court decided to ask for fresh applications the High Court accepted the position that the original recom mendations which had been made by the High Court were not accepted by the State Government and yet the High Court supported before this Court the appellant 's case by pleading for the "candidature" of the appellants.
The High Court should not take a partisan view by supporting the candida ture of any person.
We were a little surprised that the High Court supported the appellants.
This is not proper particularly when the High Court dismissed the writ peti tions of the appellants.
For the foregoing reasons the appeals are dismissed.
There will be no order as to costs.
M.R. Appeals dis missed.
| IN-Abs | The Haryana High Court invited applications and interviewed candidates for filling up vacancies in the quota of direct recruits from the bar, in the Haryana Superior Judicial Service.
The names of the appellants were recommended to the State Government who rejected them and asked the High Court to invite application again.
Accepting the position, the High Court issued the advertisements.
The appellants filed petitions against the order rejecting their names and asked for mandamus for appointment.
The same were dismissed by the High Court on the ground that the appellants had no locus standi.
Dismissing the appeals, the Court, HELD: (1) There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus.
A person can be said to be aggrieved only when he is denied a legal right by some one who has legal duty to do something or to abstain from doing something.
[362G H, 363A B] State of Haryana vs Subash Chander Marwaha & Ors. ; ; Jasbhai Motibhai Desai vs Roshan Kumar Haji Bashir Ahmed & Ors. ; ; Halsbury 's Laws of England 4th Ed.
I, pargraph 122 and Ferris Extra ordi nary Legal Remedies, paragraph 198, applied.
(2) The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court though the consulta tion does not mean that the Governor must accept whatever advice or recommendation is given by the High Court.
Article 233 only requires that the Governor should obtain from the High Court its views on the merits and demerits of per sons, selected for promotion and direct recruitment.[363A B. F G] Chandra Mohan vs State of Uttar Pradesh & Ors. ; Chandramouleshwar Prasad vs Patna High Court & Ors. ; and A. Panduranga Rao vs State of Andhra Pradesh & Ors. ; referred to.
|
l Appeal Nos.
1349 1350/76.
Appeals by Special Leave from the Judgment and Decree dated the 12th October 1976 of the Madras High Court in Writ Petition Nos.
5881 and 5884 of 1975.
V.P. Raman, Addl.
Sol, General of lndia, (Mrs.) N. G, Krishna Iyengar, Shri Narain, K.J. ' John, D.N. Mishra for the Appellant.
F.S. Nariman, M. N. Rangachari, A.R. Ramanathan, Jayaraman,M.M.L. Srivastava and A.T.M. Sarapath for Respond ent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The short ,question, involving a point of construction of section 68 F(1D), has been raised by the Additional Solicitor General in these appeals by Special Leave.
The respondent was a stage carriage operator whose two permits ,were to expire in January and.
March 1976.
In the usual course and in compliance with section 58.
of the (for short, 'The Act ') he applied for renewal more than 120 days ahead but at the time of the actual date of expiry of the permits a draft scheme under part IV A had been published.
This fulfilled the require ments of the proviso to section 68 F(1D) and entitled the appel lant to renewal for the limited period stated in the said proviso.
But the State withdrew the draft scheme for some technical reasons and republished it in July 1975, after the appellant 's permit had expired.
Applying the prohibition contained in section 68 F(1D) the Regional Transport Authority (for short the 'R.T.A. ') rejected the prayer for renewal.
However, the High Court set aside that order and directed the grant of renewal, on a certain view of the section which the Additional Solicitor General contends goes beyond the limits of the plain words used.
The aggrieved State ap peals.
While we are satisfied that on the peculiar facts.
of this case the respondent can sustain the permits the legal position canvassed by the appellant appears to be correct.
At the time the respondent 's permit expired a draft scheme had already been published but the approved scheme had not been published.
Any permit holder whose permit expires during this spell is eligible for a renewal as specified in the proviso.
The fact that the draft scheme was later withdrawn cannot affect the right to a renewal.
We, therefore, hold that the renewal of permit shall remain to the extent contemplated in the proviso to section 68 F(1D).
Before we consider the legal question we may read section 68 F(1D). "(1D) Save as otherwise provided in sub sectiOn (1A) or sub section (1G), no permit shall be granted or renewed during the period intervening between the date of publication, under Section 68 (2 of any scheme and the date of publication of the approved or modified scheme, in favour of 391 any person for any class or road transport service in relation to an area or route or portion thereof covered by such scheme.
Provided that where the period of opera tion of a permit in relation to any area, route, or portion thereof specified in a scheme published under Section 68 C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of Seetion 68 D." Three propositions plainly emerge.
No permit or renewal, except to the extent expressly saved by section 68 F(ID), can be granted by the R.T.A. during the period between the date of publication of any scheme and the date of publication of the approved scheme.
(2) If a permit expires after the publication of any draft scheme such permit is eligible for renewal for a limited period as set out in the proviso.
This special provision cannot be stretched, on the ground of possible anomalies or unjust consequences, to cover permits expiring even before the publication of the draft scheme.
Where the language is plain, interpretation cannot take the shape of addition or interstitial legislation.
(3) A rider to proposition No. 2 has to be added.
If a permit holder whose permit is about to expire, diligently does, in the normal course, all that he need and all that he can, that is to say, apply for renewal before 120 days, in the manner laid down in section 58 of the Act, he sets in motion the legal machinery for the grant of renewal which must ordinarily culminate.
in renewal within 120 days.
The fact that a scheme is published before the actual grant of renewal will not intercept or extinguish the process of law set in motion by the applica tion for renewal.
In such cases the R.T.A. has to act promptly and if the application for renewal is in conformity with the law it has to consider it and grant or reject according to merit.
If, for reasons beyond the control of the applicant, the renewal process gets delayed or pro longed he cannot be penalised.
Renewal is a legal process, not the final act.
Save in this category of cases, all other permits which have expired before the draft scheme is published, suffer the ban of section 68 F(1D).
However, no permit can ensure beyond the time of the publication of the approved scheme.
This saves cases of bona fide applications for renewal of permits, not calculated to thwart a scheme, and helps the travelling public during the interregnum when the scheme is under scrutiny.
The wider proposition accept ed by the High Court that all permits which have expired before the draft scheme is published can be renewal does not appear to be correct and does not have our approval.
With this declaration of the law we dismiss the appeals.
No order as to costs.
P.H.P. Appeals dismissed.
| IN-Abs | The respondent was Stage Carriage Operator whose two permits were to expire in January and March 1976.
In the usual course and in compliance with section 58 of the , he applied for renewal more than 120 days ahead but at the time of the actual date of expiry of the permits a draft scheme under A had been pub lished.
The State withdrew the draft scheme under A for some technical reasons and republished in July 1975, after the appellants ' permits had expired.
Section 68F(1D) provides that no permit shall be granted or renewal 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.
The proviso to the said sec tion provides that if a permit expires after the publication of the scheme such permit may be renewed for a limited period but the renewed permit shall cease to be effective on the publication of the scheme under section 68D(3).
Applying the prohibition contained in section 68F(1D) the Regional Transport Authority rejected the prayer for renewal.
The High Court set aside that order directed the grant of the renewal.
Dismissing the appeals, HELD: 1.
At the time the respondents ' permit expired a draft scheme had already been published but the approved scheme had not been, published.
Any permit holder whose permit expires during this spell is eligible for a renewal as specified in the proviso.
The fact that the draft scheme was later withdrawn ca.not affect the rights to a renewal.
Renewal of the permit however would be to the extent contem plated by section 68F(1D).
[390G H] 2.
(a) No permit or renewal except to the extent ex pressly saved by section 68F(1D) can be granted by the Regional Transport Authority during the period between the date of publication of any scheme and the date of publi cation of the approved scheme.
[391C] (b) If a permit expires after the publication of any draft scheme such permit is eligible for renewal for a limited period as set out in the proviso.
The special provi sion contained in that proviso cannot be stretched on the ground of possible anomalies or unjust consequences to cover permits expiring even before the publication of the draft scheme.
Where language is plain the interpretation cannot take the shape of addition or interstitial legislation.
[391C D] 3.
If a permit holder whose permit is about to expire diligently does in the normal course, all that he needs and all that he can, that is to say, if he sets in motion the legal machinery for the grant of renewal as laid down in section 58, the fact that a scheme is published before the actual grant of renewal will not intercept or extinguish the process of law set in motion by the application for renewal.
If for reasons beyond the control of the applicant the renewal process gets delayed or prolonged he.
cannot be penalised.
Renewal is a legal process and not the final act.
Save in this category of cases all other permits which have expired before the draft scheme is published, suffer the ban of section 68F(1D).
However, no permit can ensure beyond the time of the publication of the approved scheme.
[391D F] 390
|
Appeal No. 128 of 1976.
(From the Judgment and Order dated 10 12 1975 of the Allahabad High Court in Election Petition No. 35/74).
G.N. Dikshit, M.V. Goswami, S.V. Goswami and Ambrish Kumar, for the Appellant.
L.M. Shinghvi, Pratnod Swarup and S.K. Verma, for Re spondent No. 1.
The Judgment of the Court was delivered by GUPTA, J.
The appellant was one of the eight contest ants from Mat Constituency No. 365 in District Mathura in the Uttar Pradesh Legislative Assembly elections held in 1974.
February 24 and 26, 1974 were the dates when poll was taken and the result was declared on February 28, 1974.
The first respondent who was sponsored by Bhartiya Kranti Dal, it will be referred to as B.D. hereinafter, was elected securing 33565 votes.
The appellant who came next was a nominee of the Congress party; he polled 20731 votes, 12,834 votes less than the successful candidate.
On April 14, 1974 the appellant presented an election petition in the Allaha bad High Court calling in question the election of the first respondent alleging that he was guilty of adopting corrupt practice within the meaning of sub sections (2), (3) and (3A) of section 123 of the Representation of the People Act, 1951.
The first respondent in his written statement denied all the allegations.
The High Court held that the election petitioner had failed to prove the charge of corrupt prac tice alleged against the successful candidate and dismissed the election petition.
The election petitioner challenges the correctness of the decision in this appeal under section 116A of the Representation of the People Act, 1951.
Certain principles governing election disputes are now well settled.
One such principle is that proceedings arising out of election petitions are quasi criminal in character and the allegations made in the petition must be proved beyond reasonable doubt. 'Another is that in an appeal under section 116A of the Representation of the People Act, 1951 this Court will not interfere with the findings of fact recorded by the trial court except for very strong and cogent reasons.
A third is that it is unsafe in an election case to accept oral evidence at its face value without looking for assurance from some surer circumstances or unimpeachable documents.
[see Rahim Khan vs Khurshid Ahmed ; (656)].
Of the issues framed upon the pleading of the parties, issues 1, 2, 3 and 4 only are relevant for the purposes of the present appeal.
These issues are as follows: (1) Whether the respondent No. 1, his agents, workers and supporters, with his consent, promoted feeling of hatred between different classes of the citizens of India, particularly between fats and Thakurs of the Constituency on the one side and other Castes and 414 communities on the other, for furtherance of the prospects of his election and thereby committed corrupt practice as defined in section 123 (3 A) of the Act ? (2) Whether the respondent No. 1, his agents workers and supporters, with his consent, promoted caste feeling and appealed to the voters to vote or refrain from voting on the basis of caste and community for furtherance of the prospects of his election and thereby committed corrupt practice as defined in section 123(3) of the Act? (3) Whether the respondent No. 1, his agents and workers, with his consent, directly or indirectly interfered with free exercise of electoral rights of the voters and committed corrupt practice of undue influence as defined in section 123(2) of the Act? (4) Whether the respondent No. 1, his agents and workers, with his consent, committed corrupt practice of bribery for inducing Muslim voters to vote for the respondent No. 1, by paying several thousands of rupees for construction of a school building and a mosque, as alleged in para 13(i), (ii) and (IV) of the petition ? The first two issues are interconnected The allegations relating to these issues are based on three pamphlets, Exhibits P. and P. 22, and oral evidence of meet ings where speeches were delivered appealing to voters on the ground of caste and attempting to promote hatred between different castes.
There is no reference, however, to these pamphlets in the election petition.
Of the pamphlets, exhibits P. 20 and P. 22 contain an appeal to all the resi dents of the constituency to vote for the first respondent, and the High Court rightly held that these two pamphlets cannot be called objectionable.
Exhibits P. 21 appeals to the voters not to vote for outsiders such as, the appellant but to one who belonged to the constituency like the first respondent.
It is difficult to say that this is an appeal on the ground of caste or community.
But it is not neces sary to pursue this matter further because there is no evidence to connect the first respondent with this pamphlet and, as the High Court has found it is not "proved as to at whose instance this pamphlet was printed or distributed".
The oral evidence on these two issues seeks to prove that meetings were held at three villages, Bajna, Neemgaon and Surir Kalan where speeches were made asking the votes to vote on the basis of caste and community and attempting to promote feelings of enmity between different castes and communities in the constituency.
At Bajna two meetings are said to have been held on February 5, 1974, one at 12.30 P.M. at the canal inspection house and the other at 8 P.M. at the local B.K.D. office.
P.W. 6 Ganga Sahai, P.W. 8 Gandalal, and P.W. 22 Jaipal Singh are the witnesses who were examined by the 415 election petitioner to prove this allegation.
From the evidence of P.W. 8 it does not appear that any appeal was made to the voters on the ground of caste or community in either of the two meetings.
P.W. 6 and P.W. 22 wanted the court to believe that though they had heard offending speeches being delivered at the meetings, they did not report the matter to anyone earlier but disclosed what they heard for the first time in court.
If the High Court found their.
testimony unbelievable, we do not think any exception can be taken to it.
The High Court also.
found that neither P.W. 8 nor P.W. 22 was a disinterested witness, P.W. 8 being an active member of the Congress and P.W. 22 was a polling agent of the appellant.
At Neemgaon a meeting is alleged to have been held on February 19, 1974 at 12 noon in the primary school premises.
Of the two witnesses who speak about this meeting, P.W. 16 Lotan appears to have admitted on cross examination that he had not attended the meeting and P.W. 15 Raghubir says, like P.Ws. 6 and 22, that what he heard in the meeting he was disclosing for the first time in court.
The High Court further finds that P.W. 15 was a man in the confidence of the appellant and P.W. 16 was admittedly a "man of Congress".
If in these circumstances the High Court refused to rely on the evidence of these two witnesses, no interfer ence is called for.
The meeting at Surir Kalan is said to have been held at 2 P.M. on the Ramlila platform in the village.
P.W. 4 Harpal Singh and P.W. 5 Badan Singh are the two witnesses for the petitioner as to what happened at this meeting.
From the testimony of P.W. 4 Harpal Singh it seems extremely unlikely that he was present at the meeting.
P.W. 4 is the Head Master of a junior high school.
The school was open on that day.
The schools hours were from 10 A.M. to 4 P.M.
The witness says that he was able to attend the meeting as it was held during the "interval period".
He admits that there are eight periods of forty minutes duration each and the interval is after the fourth period for about forty five minutes.
It is dear therefore that he could not possibly attend the meeting at 2 P.M.
The witness however attempts to prove his presence at the meeting by saying that the meeting started at about 1 P.M., thus contradicting his earlier statement.
The attempt to shift the time makes.
his evidence more suspect.
He also states that he does not know who ultimately won the election.
This apparent unconcern suggesting that he was an impartial witness which is hardly believable marks him out as thoroughly unreliable.
The other witness P.W. 5 Badan Singh says that the meeting was held at 2 P.M.
According to him a pamphlet (Exhibit A) was distrib uted at the meeting.
This pamphlet which contains the description "Decision of Kashatriya Mahasabha" contains an appeal to all the members of the Kashatriya caste to attend the meeting to be held on February 8, at 2 P.M. at Surir Kalan.
The pamphlet does not disclose the .name of the place where it was printed.
There is no evidence to connect it with the first respondent.
There is also no mention of this pamphlet in the election petition.
P.W. 5 does not make any secret that he was opposed to Chandan Singh being elect ed a member of the assembly.
Further, he admits that he did not complain of what happened at the meeting to the authori ties or to the petitioner.
If the High 416 Court did not find it possible to rely on P.W. 4 and P.W. 5, we do not think any legitimate grievance can be made.
We therefore find no reason to interfere with the findings recorded by the High Court on issues 1 and 2 that no corrupt practice within the meaning of section 123(3A) or section 123(3) has been proved against the first respondent.
Issue No. 3 relates to the alleged undue influence exercised by the successful candidate or with his consent by his agents and workers within the meaning of section 123(2) of the Act.
The allegations relating to this issue are contained in paragraph 12 of the election petition and the particulars are in schedule III and IX thereto.
The evi dence adduced on this issue falls into three categories; (1) evidence of witnesses who speak about the threats at the meetings held in support of the first respondent, (2) wit nesses who speak about the actual interference and (3 ) circumstantial evidence of a corroborative nature.
As re gards the first category, these witnesses have been found unreliable by the High Court while dealing with issues Nos. 1 and 2.
No further reference therefore need be made to their evidence.
As regards the second category of witnesses who speak of actual interference by the agents and workers of the first respondent, the High Court after a detailed examination of the evidence adduced found that many of these witnesses were interested witnesses and that their testimony did not inspire confidence.
No presiding officer of the polling stations where such undue influence is alleged to have been used has been examined.
One of the witnesses examined by the election petitioner, P.W. 37 Rajendra Kumar Pathak, who was Sector Magistrate in Neemgaon which includes five polling stations says that he was making a continuous round of the polling stations staying for about 15 minutes at each and that whenever any complaint was made to him about any difficulty felt by the voters in the matter of the free exercise of their right to vote, he saw that the cause for complaint was removed.
His evidence is that he did not receive any complaint about anyone being prevented from casting his vote.
He adds that instructions were given to the Sector Magistrates by the Government that voters should be allowed to cast their votes freely; no Sector Magistrate was examined by the election petitioner to prove that this was not done.
The High Court therefore did not place any reliance, and in our view rightly, on these witnesses.
The circumstantial evidence which is claimed as corroborative of the oral evidence on this issue consists of certain let ters, namely Exhibits P.7, P.8, P.9, P. 10, and P.14 Exhib its P.7 and P.8 are two letters sent to the appellant by P.W. 14 Habura and P.W. 29 Brij Mohan Bhardwaj respectively complaining about the various irregularities at the polling stations.
On a scrutiny of their testimony the High Court found both of them unreliable witnesses and was of the view that these two letters were brought into existence for the purpose of this case after the result of the election had been declared.
Exhibit P.9 is a copy of a letter dated February 23, 1974 addressed to the Superintendent of Police, Mathura.
by the District Magistrate, Mathura.
The copy was proved by P.W. 30 Was ud din Quareshi who was a Stenographer to the District Magistrate at the relevant time.
The High Court doubted the authenticity of this copy as the date, February 23 appearing on the letter was admittedly not in the hand 417 writing of the District Magistrate nor of the witness.
Exhibit 14 is another letter dated February 23, 1974 ad dressed to the District Magistrate, Mathura, by the appel lant.
In this letter the petitioner expressed his general apprehension about the irregularities likely to be committed at some polling stations on the day of poll and requested the District Magistrate to.
make necessary arrangements to prevent the same.
Exhibit P. 10 dated February 25, 1974 was also addressed to the District Magistrate Mathura by the petitioner.
This letter of course contains reference to a number of specific cases of irregularities in certain poll ing stations.
The oral evidence adduced to prove these irregularities, we have found already, is not creditworthy.
That the election petitioner did not examine any of the Sector Magistrates within whose jurisdiction such irregular ities had taken place has already been mentioned.
The only Sector Magistrate examined on behalf of the election peti tioner, P.W. 37 Rajendra Kumar Pathak, does not support the petitioner 's case.
Having considered the two letters Exhibits P. 14 and P. 10 the High Court observed: "If the two letters are read and consid ered together an inference may well be drawn that the former was sent as a precautionary measure advance to give support to the latter one with a view to create some sort of an evidence in case an election petition was necessitated to be filed." These letters put in evidence to corroborate the oral testi mony on the issue of undue influence have themselves no intrinsic merit and are far from reliable and therefore do not advance the petitioner 's case any further than what the oral testimony does.
We therefore affirm the finding of the High Court on issue No. 3 that the petitioner has failed to prove the allegation of undue influence.
This leaves only issue No. 4 concerning the allegation of bribery.
This is the issue which was pressed before us as the main ground in support of the appeal.
The allegations relating to the corrupt practice of bribery are contained in paragraph 13(ii) and (iv) of the election petition and the particulars are set out in schedule X thereto.
Paragraphs 13(ii) and (iv) state: "13.
That the material facts relating to corrupt practice of bribery committed by respondent No. 1, his workers and agents with his consent are given hereinafter.
(i) * * * (ii) That Sri Chandan Singh in order to get the support of the Muslim voters of village Naujhil offered a bribe Rs.1200/ ostensibly for the erection of the building for Islamia school to Sri Aijaz Hussain, Ida and Idris The order was made to induce the Muslim voters to vote for respondent No. 1.
(iii) * * * (iv) That village Bishambara is also a Muslim dominated village in which there are about 2000 Muslim voters belonging to Meo community.
Respondent No. 1 paid a sum of Rs. 3000/ to the Pradhan of the said village Sri Niamat 418 Khan, for inducing the voters of Meo community to vote in his favour.
The said amount was paid for constructing a mosque for use of this community of this village.
Full particulars of this corrupt practices are given in Sched ule X to this petition.
" The allegations are denied in paragraph 13 of the written statement.
Before turning to the evidence on this issue it is necessary to dispose of a contention raised in the High Court and also before us that the allegations must be taken to have been admitted by the first respondent in view of the vague evasive denial given by him in his written statement.
This is how the allegations have been denied in the written statement.
That the averments made in para graph 13 of the petition . are vague, absurd, wrong and baseless.
No person can be stopped in donating certain amount in public institution or the charitable one.
Donation to an institution does not amount to bribery.
The construction of the part 6 indicate igno rance of the petitioner who is not aware in spite the legal advice.
The alleged allega tion of bribery is denied in toto and is liable to be dismissed.
13(ii) That the averments made in para l3(ii) are wrong, baseless, hence denied.
The same being repetition of foregoing sub clause (i), no need of saying much whatever is said in the previous paragraph (i).
13(iii) * * * 13(ii) That the averments made in para 13(ii) are wrong, false and baseless as if the same is denied.
The schedule enclosed marked Annexure X is general in nature and wrong, hence denied and the petition is liable to be dismissed.
" In paragraph 13(iii) of the written statement the first respondent refers to the contents in schedule X of the election petition as "too vague and incorrect, false and baseless".
Counsel for the appellant contended that the denial amounted to this only that donation to a public or charitable institution could not constitute bribery.
We think that a correct and complete reading of paragraph 13 of the written statement the construction put on it on behalf of the appellant would not be justified.
It cannot be overlooked that the allegation of bribery is also denied ' 'in toto" and as false and baseless.
The additional con tention that donation to public or charitable institutions could not amount to bribery appears to be a legal plea asserting that even on the statements made in paragraph 13 of the election petition the allegation of bribery was not sustainable.
The case of bribery rests on two incidents, one relating to payment of Rs. 1200/ to the Muslim voters in village Naujhil for the reconstruction of a Muslim school in that village and the other relating to the payment of Rs. 3000/ to the Pradhan of village Bishambara, which is a Muslim dominated village, for the construction of a mosque in the 419 village.
The allegation regarding the payment of Rs. 1200/ for Islamia school in Naujhil is sought to be proved by P.W.1 Alia Noor, who has a motor cycle repairing shop, P.W. 2 Chandra Pal Sharma, P.W. 3 Ashraf Ali, P.W. 7 Fiaz Khan, P.W. 17 Kadhera and some correspondence that passed between some of these witnesses.
What is alleged to have happened is like this.
Near about midnight between the 23rd and the 24th February, 1974, the first respondent Chandan Singh along with Chatur Singh and several others drove in a jeep to Naujhil at a place where about 200 Muslims were sitting around a fire.
Some from the crowd went upto the jeep, had a talk with Chandan Singh and told him that whoever would donate money for Islamia school, the Muslim votes would be cast in his favour, Chandan Singh Offered to pay and gave twelve currency notes of Rs. 100/ each to Chatur Singh who made them over to one Ida who is said to be the president of the school.
P.W. 1 Alla Noor, P.W. 3 Ashraf Ali and P.W. 7 Fiaz Khan are witnesses to this inci dent.
About half an hour later, two persons named Nanhey and Habib informed P.W. 2 Chandra Pal Sharma, who was the pradhan of village Naujhil, of the incident.
On being sum moned the appellant arrived there within a few minutes and Nanhey and Habib repeated the story in his presence.
At the instance of the appellant the Station Officer, Naujhil, was also summoned there, but he declined to take any step.
The appellant then came to the place visited by the first re spondent earlier and remonstrated with the Muslims crowd still present there for having accepted the money from the first respondent.
Certain letters were produced on behalf of the appellant to strengthen the oral evidence relating to the incident.
Exhibit P.2 appears to be a notice given by Fiaz Khan, who is a member of the school committee, to Ida accusing him of not utilising for the school the money taken by him from the first respondent, asking him to take early steps in the matter, and warning him that in default action would be taken against him.
Exhibit P.I is a letter written by P.W.3 Ashraf Ali, who was a teacher of the school, to P.W. 1 All Noor saying that he had taken the sum of Rs. 1200/from Ida in the presence of witnesses and pur chased some building material for the school.
This letter bears no date.
Exhibit P.5 is another letter sent by P.W. 1 Alla Noor to P.W. 7 Fiaz Khan assuring him that the sum of Rs. 1200/ taken from the first respondent would be utilised for the benefit of the school.
The High Court has disbe lieved the entire story finding that neither the witnesses were believable nor the letters reliable.
The story of the midnight visit of the first respondent doling out money to a crowd of Muslim voters who happened to be present would strike anyone as ridiculous and we agree with the High Court that it cannot be true.
Besides, neither Ida who is made to appear as a central figure in the dispute over the money, nor Nanhey or Habib who conveyed the information to P.W. Chandra Pal Sharma, has been examined.
About the letters the High Court 's finding is that from their tenor it was clear that these were brought into existence for the purpose of the election petition.
We find nothing to justify a different view.
The other allegation with regard to the issue of bribery is that a sum of Rs. 3000/ was paid to Niamat Khan, Pradhan of village Bishambara, for constructing a mosque to induce the Muslim voters of that 420 village to vote in favour of the first respondent.
The only witness examined to prove this allegation is P.W. 24, Usman.
According to him on the evening previous to the date of poll, grand father of the first respondent came to Niamat Khan and paid Rs. 3000/ to him ;n return for his promise that he would see that all the Muslim votes were cast in favour of the first respondent.
On cross examination the witness admits that he does not know what happened to that money and that he was disclosing this fact for the first time in court.
He is not named either in the election petition or on the schedule thereto.
He came to depose without receiving any summons.
Niamat Khan has been exam ined by the respondent as his witness and he denies the allegation as totally false.
The High Court therefore did not rightly put any reliance on the evidence of this wit ness.
The appellant had no personal knowledge of the facts alleged in support of the case of bribery.
Exhibit P. 10, the letter he addressed to the District Magistrate on Febru ary 25, 1974 of course contains a vague reference to these allegations, but this, as the High Court has said, seems to have been written "with a view to create some sort of an evidence in case.
election petition was necessitated to be filed".
We find no merit in this appeal which we dismiss with costs.
P.B.R. Appeal dismissed.
| IN-Abs | In the election to the State Assembly the first respond ent was declared elected.
The appellant, who was one of the defeated candidates, impugned the election on the ground that the first respondent was guilty of adopting corrupt practices within the meaning of section 123(2), (3) and (3A) of the Representation of the People Act, 1951.
It was alleged that (i) to get support of the Muslim voters of a village, the first respondent offered a bribe for the construction of a school building for Muslim boys in the village and (ii) in another village with predominant Muslim voters, he paid a big sum of money for the construction of a mosque.
The first respondent in his written statement denied the allega tions as absurd and baseless and denied in toto the allega tion of bribery.
The High Court dismissed the petition.
On appeal to this Court it was contended that the alle gations against the respondent must be taken to have been admitted in view of his vague and evasive denial.
Dismissing the appeal, HELD: The well settled principles governing election dis putes are: (1) proceedings arising out of election petitions are quasi criminal in character and the allegations made in the petition must be proved beyond reasonable doubt; (2) in an appeal under section 116A of the Act the Supreme Court will not interfere with the findings of fact recorded by the trial court except for very strong and cogent reasons; and (3) it is unsafe in an election case to accept oral evidence at its face value without looking for assurances from some surer circumstances or unimpeachable documents.
[413F] Rahim Khan vs Khurshid Ahmed, ; , 656, followed.
(i) In the instant case the contention that donation to public or charitable institutions could not amount to bribery is a legal plea asserting that even on the state ments made in the election petition the allegation of brib ery was not sustainable.
The allegation of bribery was denied by the first respondent in toto and as false and baseless.
[418G] (ii) The story that the first respondent visited the village at midnight and doled out money to a crowd of Muslim voters could not be true.
The central figures in the dis pute over the money had not been examined by the appellant and the letters produced by him to strengthen oral evidence relating to the incidents were clearly brought into exist ence for the purpose of election petition.
[419G] (iii) As regards the amount alleged to have been paid for the construction of a mosque one of the witnesses exam ined deposed without receiving any summons from the court.
The appellant had no personal knowledge of the facts alleged in support of the case of bribery.
The High Court rightly held that the letter which the appellant addressed to the District Magistrate containing vague references to the allegations had been written "with a view to create some sort of evidence in case the election petition was necessi tated to be filed ' '.
[420C] 413
|
Civil Appeals Nos.
374 375 & 457 462 of 1976.
(From the Judgment and order dated 12 3 76 of the Guja rat High Court in S.C.A. Nos.
1784/73 and 650/74, 1125, 1118, 1123, 1124, 1835, 1836/74 respectively.) A.K. Sen, S.J. Sorabjee, M.V. Chinubhai and B.R. Agarwa la, for the appellants in CAs 374 375/76.
S.J. Sorabjee, Mrs. Chinubhai, S.H. Sanjanwala, P. H. Parekh and Miss Manju Jetley, for the appellants in CAs 457 462/76.
J.M. Thakere, Adv.
General, J. P. Nanavati and M.N. Shroff, for respondent No. 1 in all the appeals.
The Judgment of the Court was delivered by BEG, J.
The eight Civil Appeals before us by certifi cates of fitness of the cases for appeals to this Court raise common questions involving the interpretation of Articles 31A and 3lB of the Constitution of Indian relation to the Gujarat Agricultural Land Ceiling Act XXVII of 1961 (herein after referred to as 'the Act ').
The preamble of the Act says that it was enacted because: "xxx it is expedient in the public interest to make a uniform provision for the whole of the State of Gujarat in respect of restrictions upon holding agricultural land in excess of certain limits and it is also expedient for so securing the 105 distribution of agricultural land as best to sub serve the common good to provide for the acquisi tion of surplus agricultural land for the allotment thereof to persons who are in need of lands for agriculture (including cooperative farming socie ties, landless persons, agricultural labourers and small holders) or for the allotment of such surplus agricultural lands the integrity of which is main tained in compact blocks to a department of Govern ment or to cooperative farming societies or corpo rations owned or controlled by the State, for ensuring the full and efficient use thereof and to provide for other consequential and incidental matters hereinafter appearing?" The part of section 6 of the Act with which we are especially concerned provides: "6(1) Notwithstanding anything contained in any law for the time being in force or in any agreement, usage or decree or order of a Court, with effect from the appointed day, no person shall, subject to the provisions of sub sections (2), (3), (3A) and (3B) be entitled to hold, wheth er as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area.
(2) Where an individual, who holds land, is a member of a family, not being a joint family which consists of the individual and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, irrespective of whether the family also includes any major son, and land is also separately held by such individual 's spouse or minor children, then the land held by the individu al and the said members of the individual 's family, excluding major sons, if any shall be grouped together for the purposes of this Act and the provisions of this Act shall apply to the total land so grouped together as if such land had been held by one person.
(3) xxx xxx xxx (3A) xxx xxx xxx (3B) Where a family or a joint family con sist of more than five members comprising a person and other members belonging to all or any of the following categories, namely : (i) Minor son, (ii) widow of a pre deceased son, (iii) minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, Such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and, 9 1003 SCI 176 106 in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area: Provided that if any land is held separately also by any member of such family, the land so held separately by such member shall be grouped together with the land to such family for the purpose of determining the total holding of such family: Provided further that where.
in consequence of any member of such family holding any land in any other part of India outside the State, the ceiling area in relation to the family is reduced as pro vided in sub section (3A), the one fifth of the ceiling area as aforesaid shall be calculated with reference to the ceiling area as would have been applicable had no such land been held by such member in any other part of India.
(3C) Where a family or a joint family irre spective of the number of members includes a major son, then each major son shall be deemed to be a separate person for the purposes of sub section ( 1 ) ".
In accordance with the provisions of Sections 4 and 5 of the Act, classes of land, nature of irrigation facilities provided there, and the ceiling area for each particular class of land in each locality were specified in Schedule I.
This is found classified in nine local areas.
The range of ceiling limit varies from 10 acres to 54 acres, according to the irrigation facilities and quality of land, the ceiling for less productive and less advantageously situated land being higher.
The question which has been raised before us is whether, apart from variations in the ceiling area imposed by stat ute, there can be a depriviation of rights of individuals holding property separately, in exercise of their separate individual rights, by grouping them as members of one family so as to compel them to take only one unit of land ' in such a way that their total holding does not exceed the ceiling limit which is the same for both individuals as well as families as defined by the Act with some allowances for large families.
This raises a further question: What is the unit for which this ceiling is prescribed? It is evident that Section 6 conceives of each "person" holding land as a single unit whose holding must not exceed the ceiling limit.
Section 2, sub section
(21) says: " 'person ' includes a joint family;".
Thus, the term "person" is not, strictly speaking, defined in the Act.
Section 2, sub section
(21) only clarifies that the term "person" will "include" a joint family also.
It certainly does not exclude an indi vidual from being a person in the eyes of law.
This has been done apparently to make it clear that, in addition to individuals, as natural persons, families, as conceived of by other provisions, can also be and are per sons.
This elucidation of the term "person" is in keeping with Section 3 (42) of the , which lays down: " 'person ' shall include any company or association or body of individuals, whether incor porated or not".
107 We have referred to the Central 10 of 1897 and not to the State , which also contains a similar clarification, because Article 367 of our Constitu tion provides that the definitions contained in the Central Act "apply for the interpretation of the Constitution".
The argument which has been ad vanced before us is that the concept of the term "person", having been fixed by the Central , this concept and no other must be used for interpreting the second proviso to Article 31A of the Constitution which lays down: "Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof".
As no argument based on Articles 14 and 19 is open to the appellant, the Act under consideration having been included in the 9th Schedule to the Constitution, the ground now taken is that Section 6, subsection (2) of the Act, set out above, contains a colourable device for getting round the limitations on legislative power imposed by the second proviso to Article 31A(1) of the Constitution.
It is urged that this is done by adopting an unnatural and legally untenable concept of a "person" which transpires from an analysis of Section 6 of the Act.
It is true that, but for the provisions of Section 6, sub.s.(2) of the Act, the term "person", which includes individuals, as natural persons, as well as groups or bodies of individuals, as artificial persons, such as a family is, the entitlement to the ceiling area would be possessed by every person, whether artificial or natural.
In other words, if Section 6(2) of the Act was not there, each indi vidual member of a family would have been entitled to hold land upto the ceiling limit if it was his or her legally separate property.
This follows from the obivous meaning of the term "person" as well as the inclusive definitions given both in the Act under consideration and in the .
Spouses and minor children, as natural persons, have not been debarred from holding their separate rights to land by the provisions of the Act.
It is not the object of the Act to do that.
The object of the Act, as set out above, is two fold: firstly, to limit the ceiling area of each holder; and, secondly, to acquire what falls beyond the ceiling limit so that the State may distribute it to more needy persons.
It is not disputed that compensation is provided for acquisition of what exceeds the ceiling area in every case.
As was held by this Court in H.H. Kesavananda Bharati Sripadagalavaru vs State of Kerala,(1) the amount of compen sation fixed can not be questioned.
Therefore, no [1973] Supp.
S.C.R. 1. 108 provision of the Act could be or is challenged on the ground that the required compensation is not prescribed for an acquisition under it as required by Article 31(2) of the ' Constitution or is inadequate.
Article 3lB of the Constitu tion seems to us to provide a complete answer to any attack directed against the provisions of an Act based upon an alleged violation of any of the rights conferred by the provisions of Part III of the Constitution.
It reads: "3lB.
Without prejudice to the generality of the provisions contained in Article 31B, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, and provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulation 's shall, subject to the power of any competent Legislature to repeal 'Or amend ' it, continue in Force".
Learned Counsel for the petitioners concede that, in view of the decision of this Court in H.H. Kesavananda.
Bharti 's case (supra) and other cases referred to there, it is not possible to assail the provisions.
of Section 6 of the Act on the ground that they take away or abridge any right.
conferred by Part III of the Constitution on individuals, But, what they urge is that the second proviso to Article 31A(1)does not confer any right upon any person but only imposes, a limit upon the Legislative compe tence to that the inclusion of the Act in the 9th Schedule will not validate a provision which a legislature was not competent it all to enact.
Such a provision, it was submit ted, will not be protected by Article 3lB of the Constitu tion.
The contention is that Article 3lB does not protect a provision from invalidity on the ground of legislative incompetence of the legislature enacting it.
We do not think that the ease before us raises any question of legislative competence of the nature which could arise if a State Legislature had tried to trespass upon the exclusive domain of Union Legislation.
What has been urged is simply that the second proviso to Article 31 (1) disables the State Legislature from acquiring any land below the ceiling limit without providing for compensation for such acquisition at the full market value.
The proviso certainly protects, and, indeed, confers certain rights upon individuals to an amount of compensation.
That is its direct effect.
The argument on behalf of the appellant, as we under stand it is that, although, an alteration of the ceiling limit for each "person" directly by prescribing its stauto ry limit is permissible, yet, if it is not done directly by changing the ceiling limit for each person but by introduc ing a concept of "person", contrary to the concept in the provisions of the second proviso to Article 31 A( 1 ), it becomes a prohibited colourable device for getting round the second proviso to Article 31A(1).
It is urged that the effect of the amended Section 6 of the 109 Act is to change the ceiling limit for some persons only by altering the legal and constitutional concept of a person.
We do not find any fixed concept of "person" anywhere.
No .doubt the concept is wide so that it could be contended that it should not be narrowed down or confined, But does Section 6 (2) do that? Section 6 (2) does not either disable a husband or wife from owning or holding their separate properties separately.
It does not merge or de stroy their separate legal personailties.
It requires their separate holdings to be grouped together as though they were held by one person only for the purpose of determining the ceiling limit for each member of a family.
It may indirect ly have the effect of disabling a member 'of a family from holding land upto the prescribed ceiling limit for a person holding as an individual.
In other words, the result is that such a member of a family will have to be content with a holding less than that of an unmarried individual.
It has the effect of making it clear that what have to be grouped together are the separate properties of individuals belong ing to families other than what are "joint families", in law.
It takes in and applies to members of families other than undivided Hindu families.
It means that married per sons and their minor children will have to be viewed as though they hold one lot together even though they retain their separate legal personalities and remain competent owners of their separate holdings.
It does not affect either their legal status or competence.
It does reduce their individual holdings.
But, we do not find any prohibi tion enacted by the second proviso to Article 31A(1) against different ceiling limits prescribed for various individuals or classes of individuals differently situated.
Nor does the second proviso to Article 31A(1) prescribe any particular or direct more of imposing different ceilings on individu als differently circumstanced.
A glance at the provisions of Section 20 of the Act shows that separate rights to properties grouped together for purposes of computation only do not vanish.
On the other hand, each holder of such separate rights above the ceiling ,limit is permitted to select the property he or she wishes to continue to hold in such a way "that the lands selected for such continuance shall be in the same propor tion in which lands held by each spouse before furnishing the relevant statement were under sub section (1) of Section 10.
The reduction in their holdings would, therefore, be proportionate to the areas of lands held separately but ' brought together only for the purposes of determining the: ceiling limit for the family.
The whole object of the proc ess prescribed seems to be that families, as contemplated by the Act, should be units for merely determination of ceil ings for each member of a family.
Appellants relied on Kunjukutty Sahib etc.
vs State of Kerala & Anr.(1) where it was held by this Court (at p. 314): "It was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix; nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further (1) [1973] 1 S.C.R.326 @ 341. 110 reducing the ceiling limit so fixed.
Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within the ceiling limit fixed thereby could be acquired without payment of compensation according to the market value, but once ceiling limit was changed by the amended Act the second Proviso to article 31A (1) must be held to refer only to the new ceiling limit fixed by the amended Act.
The ceiling limit originally fixed ceased to exist for future the moment it was replaced by the amended Act.
The prohibition contained in the second proviso oper ates only within the ceiling limit fixed under the existing law, at the given time.
It is true that the new ceiling limit was fixed contemporaneously with the acquisition of the land in excess of that ceiling limit.
But it was not contended that a law so fixing the ceiling limit and acquiring the land in excess would offend any provision of the Consti tution".
Pritam Singh vs State of Punjab & Ors.(1) was also cited on behalf of the appellants.
Here the contention, amongst others, was repelled that, by adding land transferred to certain relations to that held by a person under his person al cultivation, for the purpose of determining his ceiling area and the surplus left, under the provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955, as amended by a subsequent Act, rights guaranteed by the second proviso to Article 31A(1) were contravened.
This case certainly does not lay down that the ceiling limit applicable to each individual must be uniform or that it must be contained in a single statutory provision directly dealing with ceiling limits.
It follows that the ceiling limit may vary from individual to individual.
These varying limits may result from the combined effect of several provisions.
The pre scription of different ceiling limits for different individ uals, differently circumstanced, could be enacted directly by a single provision dealing with individual celling lim its, or, alternatively, it could be the consequence of several provisions dealing with differing sets of circum stances.
No law known to us has ever laid down that the intention of the law makers on a particular subject must necessarily transpire from a single statutory provision or statutory provisions dealing directly with a particular aspect.
To read any such limit into the 2nd proviso to Article 31A(1) of the Constitution would be to accept a novel restriction on legislative competence.
We have no doubt that no such restriction could be found in the 2nd proviso to Article 31 A ( 1 ) of the Constitution.
It was urged that Article 31A(1) and 3lB of the Consti tution operate in different fields of legislation.
Whereas Article 3 IA( 1 ) cures certain possible invalidities in ordinary legislation, arising from its.
inconsistencies with Articles 14 or 19 or 31 of the Constitution, Article 3lB cures a wider range of infirmities arising from conflict with any of the provisions of Part III of the Constitution and necessitates a constitutional amendment so as to protect an impugned legislation by its inclusion in the 9th Schedule to the Constitution.
Legislation protected (1) [1967] 2 S.C.R.p.
111 by Article 31A of the Constitution would fall under appro priate legislative entries in the 7th Schedule.
But, to secure the protection of Article 3lB of the Constitution, resort to the provisions of Article 368 of the Constitution is imperative.
These differences do not mean that legisla tion falling under any part of Article 31A(1) of the Consti tution, including the provisos, cannot receive also the protection contemplated by Article 3lB of the Constitution.
There is nothing in our Constitution to bar any statute from receiving a dual protection, so to speak, of both Article 31A(1) and 3lB of the Constitution if the conditions of each are satisfied.
It is clear to us that the proviso to Article 31A(1) of the Constitution confers certain rights upon individuals and protects them from constitutionally illegal invasion.
We are, therefore, unable to accept the argument advanced on behalf of the appellants that the "protective umbrella" of Article 3lB does not shield the impugned provisions ,against an attack based upon the limits imposed by the second provi so to Article 31A(1) on legislative power.
The argument overlooks certain obvious answers: firstly, that limits on legislative powers, imposed by Part III of the Constitution, do have the direct result of protecting individual rights; and, secondly, that no part of the second proviso to Article 31 (1) of the Constitution was, as already pointed out above, infringed by the impugned provisions; and, thirdly, even if one were to assume, for the sake of argument, that rights conferred on individuals 'by the 2nd proviso to Article 31 (1), were infringed in any way, pro.
visions of Article 3lB of the Constitution are enough to repel an attack based upon such an alleged infringement.
Both Arti cle 31A(1) and 3lB are intended to operate as protections against consequences of what could otherwise be breaches of the Constitution.
Consequently, we have to and do dismiss these appeals.
But, in the circumstances of the case, the parties will bear their own costs.
P.H.P. Appeals dis missed.
| IN-Abs | The appellants challenged the constitutional validity of the Gujarat Agricultural Land Ceiling Act 1961 by filing writ petitions in the High Court of Gujarat.
The Preamble of the Act state that the Act was enacted for Securing the distribution of agricultural land as best to sub serve the common good.
Section 6(1) of the Act provides that no person shall hold either as owner or tenant land in excess of the ceiling area.
Section 6(2) provides that where an individu al who holds land as a member of a family, not being a joint family, then the spouse.
and the children excluding major sons shall be grouped together for the purposes of the Act and the provisions of the Act shall apply to the total land so grouped together as if such land had been held by one person.
The ceiling area is fixed depending on the classes of land, nature of irrigation facilities and productivity.
The said statute has been put in the 9th Schedule by the Parliament.
The Gujarat High Court dismissed the writ petitions filed by the appellants but granted certificate of fitness under article 133(1) of the Constitution to the appel lant.
The appellants contended that (1).Second proviso to article 31A of the Constitution provides that where any law makes provision for the acquisition by the State of any estate which is held by a person under his personal cultivation, it shall not be lawful for the State to.
acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force unless the law provides for payment of compensation at a rate which is not less than the market value.
Apart from variations in the ceiling area imposed by a statute, there cannot be a depri vation of rights of individuals holding property separately in exercise of their separate individual rights by grouping them as members of one family.
(2) The concept 017 "person" adopted by the statute is unnatural and legally untenable.
The concept of the term 'person ' having been fixed by the Central General Clause Act, this concept and no other must be used for interpreting second proviso to article 31A of the Constitution.
(3) The second proviso to article 31A(1) does not confer any right upon any person but only imposes a limit upon legislative competence so that the inclusion of the Act in the ' 9th Schedule will not validate a provision which the Legislature was ' not competent at all to enact.
HELD: The term 'person ' is not defined in the.
Section 2(21 ) merely states that person includes a joint family Under s 3(42) of the , a person is defined as.
including any company or association or body of individuals whether incorporated or not.
In the absence of section 6(2) each individual member of a family would have been entitled to hold land upto the ceiling limit if it was his or her legally separate property.
The Act does not debar spouses and minor children from holding their sepa rate.
rights to land.
There is no fixed concept of 'person ' any where.
Section 6(2) does not either disable a husband or a wife from holding their separate properties separately.
It does not merge or destroy their separate legal personali ties.
It 104 merely requires their separate holdings to be grouped to gether as through they were held by one person only for the purpose of determining the ceiling limit Each, holder of such separate rights above the ceiling limit is permitted to select the property he or she wishes to continue to hold in such a way that the lands selected for such continuance shall be in the same proportion in which lands were held by each spouse.
The reduction in their holding will, there fore, be proportionate to the areas ' of lands held separate ly.
But, they are grouped together only for the purpose of determining the ceiling limit for the fan, and, as a result of a specific provision to that effect.
It is not denied by the appellants that the ceiling limit could have been low ered by the statute.
Article 31A does not prohibit the legislature from fixing ceiling limits for various individu als or the classes of individuals differently situated, nor does the second proviso to article 31A(1) prescribe any partic ular or direct mode of imposing different ceilings for individuals differently circumstanced.
[106 G H, 109 A E] Pritam Singh vs State of Punjab & Ors. ; distinguished.
(2) Article 3lB provides a complete answer to any attack directed against the provisions of the Act based upon viola tion of any of the rights conferred by the provisions of Part III of ' the Constitution.
To read any limit into the second proviso to article 31A(1) that there can be only single ceiling limit for all persons would be to accept a novel restriction on legislative competence.
There is nothing in the Constitution to bar any statute from receiving a dual protection.
In the.
present case, the statute in question is fully protected by article 3lB.
Since the second proviso to Article 31A confers certain rights up.on individuals, the protective umbrella of article 3lB shields the impugned provi sion against any attack based upon the alleged violation of such rights as well.
[110 G H, 111 A C] (3) There is no question of legislative competence.
in the present case.
The proviso protects and confers certain rights upon individuals to an amount of compensation.
That is the direct effect.
[111 B C]
|
Appeal No. 138 of 1972.
(From the Judgment and Order dated 20.3.1971 of the Madhya Pradesh High Court in Misc.
Petition No. 313/70).
I. N. Shroff, for the appellants.
S.V. Gupte, J. D. Jain, Miss Kanwaljit Miglani and Balram Sahgal for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
Whether sales tax is payable by a photographer under the Madhya Pradesh General Sales Tax Act (Act 2 of 1959) when the 436 photographer takes photographs or does other photographic work and thereafter supplies the photographic prints to his client or customer is the question which arises for determi nation in this appeal on certificate against the judgment of Madhya Pradesh High Court reported in 28 STC 1.
The High Court answered the question in the negative in favour of the assessee respondent.
The respondent is the proprietor of Kame Photo Studio.
He has apart from his main shop two branches.
He carries on business, inter alia, of buying and selling photographic goods.
After buying photographic goods he either sells them to his customers or uses them in three ways (1) in taking photographs and supplying prints thereof, (2) in making enlargements for the clients who bring their own negatives, and (3) in preparing positive prints of the same size from the negatives brought by the clients.
For doing these various types of works the assessee respondent charges consolidated amount depending upon the work involved and the size and number of prints demanded by the client.
The sales tax authorities assessed the respondent for different periods from April 1, 1964 to March 31, 1969 to sales tax on his turnover on best judgment basis as he had not kept full and complete accounts.
It may be convenient to refer to the figures of assessment for one of the years.
For the year 1964 65 the total turnover of the respondent was taken to be Rs. 41,500.
Out of this amount a deduction of Rs. 6,500 was allowed as relatable to developing and enlargement which was considered to be not chargeable to tax.
The balance of Rs. 35,000 was divided into two parts Rs. 12,000 being treated as relatable to sale of materials as such and the rest Rs. 23,000 being taken to be the re ceipts on account of the supply of photo prints to those who got themselves photographed at the studios.
The respondent filed writ petition to challenge the levy of sales tax on the last item, namely, the item for the supply of photo prints.
The contention of the respondent was that in taking a photograph, preparing its negative and thereafter the final positive print for supplying the same to the client, the respondent undertakes a contract of work and labour and does not enter into a sale transaction.
It was also stated on behalf of the respondent that the prepared positive print was not a marketable commodity and he could not sell the photograph of one person to any other person except with the former 's consent.
As against that, the case of the appellants was that the respondent was carrying on a commercial activity in the nature of trade and business and the finished photographs supplied by him to his customer was a commodity and the supply of same attracted the levy of sales tax.
The High Court, on consideration of the matter, came to the conclusion that the respondent only undertook the contract of work and labour and did not enter into a sale transaction.
The respondent as such was held not liable to pay sales tax in respect of the item to which the writ petition related.
The High Court while accepting the writ petition also observed as under: "We may lastly make it clear that in this case we are not called upon to go into the question whether the material used 437 in preparing the photograph is sold and taxa ble.
The petitioner has alleged in the petition that he was paid full tax on the value of such material and the respondents have neither denied the fact nor have claimed tax on such material.
We, therefore, express no opinion on that question and need not consider either Masanda 's case (1957) 8 STC 370, where the only question referred to this Court was whether such material alone could be taxed, or the observations of the Bombay High Court in Camera House Case (1970)25 STC 354, about severability of the contract into one spearately for service and supply of material.
" In appeal before us Mr. Shroff has assailed the judgment of the High Court.
As against that,.
Mr. Gupte on behalf of the respondent has canvassed for the correctness of the view taken by the High Court.
The question as to whether a contract is a contract of work and labour or a contract for sale is not one free from difficulty.
The reason for that is that in border line cases the distinction between the two types of contract is very fine.
This is particularly so when the contract is a composite one involving both a contract of work and labour and a contract of sale.
Nevertheless, the distinction between the two rests on a clear principle.
A contract of sale is one whose main object is the transfer of property in, and the delivery of the possession of, a chattel as a chattel to the buyer.
Where the principal object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one of work and labour.
The test is whether or not the work and labour bestowed end in anything that can properly become the sub ject of sale; neither the ownership of materials, nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining, in the circum stances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel (see The State of Himachal Pradesh & Ors.
vs Associ ated Hotels of India(1).
The respondent company in that case carried on business as hoteliers.
As a part of its business as hoteliers, the company received guests in its several hotels to whom, besides furnishing lodging, it also served several other amenities, such as public and private rooms, bath with hot and cold running water, linen, meals during stated hours.
The bill tendered to the guests was all inclusive one, namely, a fixed amount for the stay in the hotel for each day and did not contain different items in respect of each of the amenities.
The question which arose for determination was whether the company was liable to pay sales tax under the Punjab General Sales Tax Act, 1948 in respect of meals served in the hotel to the ,guests coming there for stay It was held by the Constitution Bench of this Court that the transaction was essentially one and indivisible, namely, one of receiving a customer in the hotel to stay.
It was essentially one of service by the hotelier in the performance of which, and as part of the amenities incidental to the service, the hotelier served meals at stated hours.
The revenue, it was held, was (1) 29 S.T.C. 474.
438 not entitled to split up the transaction into two parts, one of service and the other of sale of food stuffs.
This Court accordingly came to the conclusion that there was no sale of food stuffs and the respondent company was not liable to pay sales tax in respect of the meals served to the guests in the hotel.
In arriving at this conclusion this Court observed as under: "Thus, in considering whether a transaction falls within the purview of sales tax, it becomes necessary at the threshold to deter mine the nature of the contract involved in such a transaction for the purpose of ascer taining whether it constitutes a contract of sale or a contract of work or service.
If it is of the latter kind it obviously would not attract the tax.
From the decisions earlier cited it clearly emerges that such determina tion depends in each case upon its facts and circumstances.
Mere passing of property in an article or commodity during the course of the performance of the transaction in question does not render it a transaction of sale.
For, even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materi als may pass to the other party.
That would not necessarily convert the contract into one of sale of those materials.
In every case the court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it.
It may in some cases be that even while enter ing into a contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service.
But, then in such cases the trans action would not be one and indivisible, but would fail into two separate agreements, one of work or service and the other of sale.
" Reliance in the above cited case was placed upon an earlier decision of this Court in the case of State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd.(1) wherein the Constitution Bench of this Court held that in a building contract the property in materials used, does not pass to the other party to the contract as movable property.
It would so pass if that be the agreement between the parties.
But if there was no such agreement and the contract was only to construct a building, then the materials used therein would, in the opinion of the Court, become the property of the other party to the contract only on the theory of accre tion.
The distinction between a contract of sale and contract for skill and labour has been discussed at page 10 of the 4th Edn. of "Sale of Goods" by P.S. Atiyah.
The following passage in that book has a material beating so far as the present case is concerned: (1) 9 S.T.C. 353. 439 "The distinction between contracts of sale and contracts for skill and labour has agitated the courts for many years, and though its importance has been greatly diminished by the repeal of Sect.
4 of the Act, it still cannot be ignored.
It was thought for many years that Lee vs Griffin ; laid down that, if a contract would result in the trans fer of the property in goods from one party to another, then it must be a contract of sale.
The view was exploded in Robinson vs Graves where it was held that a contract to paint a portrait was a contract for skill and labour and not a contract for the sale o[ goods, despite the fact that it was the object of the contract to transfer the property in the completed portrait to the defendent.
Green L.J. stated the law as fol lows (1935) 1 K.B. at p. 587: If the substance of the contract . is that skill and labour have to be exercised for the production of the articles and . it is only ancillary to that that there will pass from the artist to his client or customer some materials in addition to the skill in volved in the production of the portrait, that does not make any difference to the result, because the substance of the contract is the skill and experience of the artist in produc ing the picture." Keeping the above principles in view, we may now turn to the facts of the present case.
When a photographer like the respondent undertakes to take photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he cannot be said to enter into a contract for sale of goods.
The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result.
The occupation of a photographer, except in so far as he sells the goods pur chased by him, in our opinion, is essentially one of skill and labour.
A good photograph reveals not only the aes thetic sense and artistic faculty of the photographer, it also reflects his skill and labour.
A good photograph in most cases is indeed a thing of beauty.
It not only seeks to mirror and portray a scene from actual life, it also catches and preserves for the future what belongs to and is a part of the fleeting moment.
The ravage brought about by the passage of time, the decay and the ageing process which inevitably set in as the years roll by leave what is pre served in the photograph unaffected.
It is no wonder that an old photograph revives nostalgic memories of days no more, but to which we rook back through the mist of time with fondness even though such fondness has a tinge of sadness.
We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour.
Our attention has been invited during the course of arguments to some decisions of the High Courts.
It is, in our opinion, not necessary to deal with those cases 12 1546 SCI/76 440 because after giving the matter our consideration was are of the opinion, that the view taken by the High Court in the judgment under appeal substantially represents the correct position in law.
The appeal consequently fails and is dismissed, but in the circumstances without costs.
M.P. Appeal dis missed.
| IN-Abs | The respondent carries on business, inter alia, of supplying photo prints to those who get themselves photo graphed at his studios.
Sales tax authorities assessed him and levied sales tax on his supply of photo prints.
The respondent filed a writ petition in the High Court contend ing that in supplying photo prints, he did not enter into sale transactions but only undertook contracts of work and labour.
He also refuted the appellant 's contention that a finished photograph was a marketable commodity.
The High Court allowed the writ petition holding the respondent not liable to pay sales tax on the supply of photo prints.
Dismissing the appeal, the Court, HELD: (1) When a photographer undertakes to take photo graph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he cannot be said to enter into a contract for sale of goods.
The con tract on the contrary is for use of skill and labour by the photographer to bring about desired result.
[439E] Masanda 's case (1957) 8 STC 370 and Camera House Case (1970) 25 STC 354, distinguished; 28 S.T.C. 1 MP reversed.
(2) A contract of sale is one whose main object is the transfer of property in, and the delivery of the possession of, a chattel as a chattel to the buyer.
Where the principal object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one of work and labour.
The test is whether or not the work and labour bestowed end in anything that can properly become the subject of sale.
[437D E] State of Himachal Pradesh & Ors.
vs Associated Hotels of India Ltd. STC 474 and State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. STC 353, applied.
Sale of Goods, 4th Edn.
p. 10 by P.S. Atiyah relied upon.
|
Civil Appeals Nos.
1221 1226 of 1974.
(Appeals by.
Special Leave from the Judgment and Order dated 26 2 1974 of the Andhra Pradesh High Court in Tax Revision Cases Nos. 5 10 of 1973).
K. Sen, S.T. Desai, B.M. Bagaria and D.P. Mukherjee, for the appellants.
P.P. Rao and T.V.S.N. Chari for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
These six appeals are by special leave from the judgment dated 26 February, 1974 of the Andhra Pradesh High Court.
The principal question in these appeals is whether the appellants are the last purchasers of manganese ore within the State of Andhra Pradesh.
The appellants contended before the Sales Tax authorities that their sales of manga nese ore to the Mines and Minerals Trading Corporation in short called the M.M.T.C. were complete within the State of Andhra Pradesh.
The appellants therefore contended that they were not the last purchasers but the M.M.T.C. was the last purchaser within the State, and therefore, the M.M.T.C. was liable to pay the tax.
The High Court came to the conclusion that the appel lants were the last purchasers in the State.
The High Court held that the contract between the appellants and the M.M.T.C. indicated that the appellants ' contract of sale occasioned the export and that the contract of the appel lants with the M.M.T.C. was integrally connected with the contract entered into by the M.M.T.C. with their foreign buyer.
In short, the High Court held that there existed a bond between the contracts of sale entered into by the appellants with the M.M.T.C. and the actual exportation of the goods.
The High Court held that these contracts were intrinsically linked and connected and the sales effected were held to be sales in the course of export of manga nese ore out of the territory of India.
443 The Constitution Bench of this Court in the recent decision in Mohd. Serajuddin etc.
vs State of Orissa(1) held that manganese merchants who bought manganese from mines and thereafter sold the goods to the State Trading Corporation for short the S.T.C. could not be said on the terms and conditions of the contracts in that case to be exporters of the goods.
The S.T.C. contracts with the manganese merchants and the S.T.C. contracts with the For eign Buyers were held not to be integrated activities in the course of export.
The crucial words in section 5 of the are that a sale or purchase of goods shall be deemed to take place out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.
This Court found that the contracts between the manganese merchants and the S.T.C. on the one hand and the contracts between the S.T.C. and their foreign buyers on the other were two separate and independent con tracts of sale.
The S.T.C. entered into direct contract with their foreign buyers.
The S.T.C. alone agreed to sell the goods to their foreign buyers.
The S.T.C. was the exporter of goods.
There was no privity of contract between the manganese merchants and the foreign buyers from the S.T.C.
The privity of contract was between the S.T.C. and the foreign buyers.
The immediate cause of the movement of goods and export was the contract between the foreign buyers who were the importers and the S.T.C. who was the exporter and shipper of the goods.
In Serajuddin 's case (supra) this Court referred to the rulings in Coffee Board Bangalore vs Joint Commercial Tax Officer Madras (a) and M/s Binani Bros. (P) Ltd. vs Union of India & Ors.(3) as laying down the correct tests to find out the sale in the course of export.
The tests are that there must be a single sale which itself causes the export or is in the progress or process of export.
There is no room for two or more sales in the course of export.
The only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the export er to the importer.
Counsel for the State submitted that there were six contracts and it has been the case of the appellants that the contracts were different, and, therefore, there should be examination of five other contracts.
It may be stated here that counsel for the State did not dispute that the decision in Serajuddin 's case (supra) applied to one of the six contracts but he disputed the application of the ruling in Serajuddin 's case to the other five contracts.
The reasons given by counsel for the State are these.
Only one contract was referred to in the High Court.
The case of the appellants has all along been that the Sales Tax Appel late authorities considered only one contract.
The High Court also considered only one contract.
In the special leave petition the appellants assailed the assumption made by the High Court to the effect that all contracts between the appellants and the M.M.T.C. were similar.
(1) [1975] Supp.
S.C.R. 169.
(2) ; (3) ; 444 Counsel for the State put in the forefront the conten tion that the M.M.T.C. could not be the last purchaser of goods within the State of Andhra Pradesh because property in the goods passed from the appellants to the M.M.T.C. on board the ship.
In aid of that contention reliance was placed on F.O.B. character of the contract between the appellant and the M.M.T.C.
The position is identical in all the six contracts.
This Court in Serajuddin 's case (supra) pointed out that mention of F.O.B. price in the contracts between the manga nese merchants and the S.T.C. did not render these contracts F.O.B. contracts with the foreign buyers from the S.T.C.
The reason is simple.
The contracts between the S.T.C. and the foreign buyers are different contracts and it is the S.T.C. which entered into independent contracts with their foreign buyers on F.O.B. basis.
Under the contracts between the manganese merchants and the S.T.C. the merchants were required to bring the goods F.O.B. to the ship named by the S.T.C.
It has to be appreciated that quite often merchants dealing in goods which are exported out of our country enter into what is called string contracts for purchase of the goods from the factory or the mines for sale to exporters for sale to foreign buyers.
The Trading Corporations are often the only authorities allowed to export out of our country.
These Corporations enter into direct contracts with their foreign buyers for export.
The directions given by the Corporations to the merchants to place the goods on board the ship are pursuant to the contracts of sale between the merchants and the Corporation.
These directions are not in the course of export, because the export sale is an independent one between the Corporation and their foreign buyers.
The taking of the goods from the merchants ' place to the ship is completely separate from the transit pursuant to the export sale (See Serajuddin 's case at pp.
184 185).
In string contracts or chain contracts delivery is made by the original seller and eo instanti it is delivered in implement under each separate contract in the chain.
In chain or string contracts starting between the mills or mines or factories and their immediate buyer and ending with the ultimate buyer through several intermediaries not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery This process of delivery of possession goes all along the chain at the same moment when delivery is made to the steamer.
See Duni Chand Rataria vs Bhuwalka Brothers Ltd.(1).
In F.O.B. contracts the seller 's duty is to place the goods "free on board" a ship to be named by the buyer.
When the seller delivers the goods for loading on board he normally obtains a mate 's receipt which he transmits to the buyer and the buyer exchanges this for the proper bill of lading.
In this sort of F.O.B. contract the almost univer sal rule is that property and risk both pass on shipment as soon as the goods are over the ship 's rail and if it should be material, the property and risk in each part of the cargo will pass as it crosses the (1) ; 445 ship 's rail.
The loading of the goods is an unconditional appropriation which passes the property.
This is not because of any peculiarity of F.O.B. contracts but because in this type of contract the seller 's duty is to deliver the goods F.O.B. Once they are on board the seller has delivered them to the buyer and it is natural that they should thereafter be at the buyer 's risk.
Now a days a party which has contracted to sell goods to a foreign buyer may itself buy the goods F.O.B. Indian port from Indian seller in order to fulfill F.O.B. contract with a foreign buyer.
This Court in Serajuddin 's Case '(supra) has laid down that the mere mention of F.O.B. price or F.O.B. delivery in contract between a merchant and the S.T.C. which .exports the goods under a separate contract with the foreign buyer to the latter will not make the two contracts either inte grated or the contract between the merchant and the S.T.C. an F.O.B. contract.
There cannot be two last purchasers in the sale of same goods within the same State.
Similarly, there cannot be two exporters in respect of the same goods.
After the decision of the Constitution Bench in Serajuddin 's case (supra) the decision in National Tractors Hubli vs Commissioner of Commercial Taxes Bangalore(1) is no longer good law.
In the National Tractors case (supra) which was a three Judge Bench decision reliance was placed on the decision in B.K. Wadeyar vs M/s. Daulatram Rameshwarlal(2).
In Wade yar 's case (supra) this Court said that the normal presump tion attaching to F.O.B. contracts is that property in the goods passes only when they are put on board the ship.
Wadeyar 's case (supra) was before the Central Safes Tax Act 1956.
Further the Bill of Lading, the export licence and the export clause all showed that the export did not commence till the slip left the port.
In the National Tractors case (supra) it was said that the purchase by the State Trading Corporation from the merchant was in the course of export by the S.T.C. to the foreign buyer and, therefore, the purchase by the merchant from the mine owner was the last purchase in the State.
The basis of the decision is that these were integrated F.O.B. contracts in the course of export.
The decision in National Tractors case (supra) made no reference to the decision of this Court in Coffee Board case (supra).
The correct law is laid down by this Court in the Coffee Board case and Serajuddin 's case (supra).
The law is this.
It has to be found out whether the contracts between the merchants and the Corporation are integrated contracts in the course of export or they are different.
If they are different contracts, as they are in the present case, the last purchaser within the State is the M.M.T.C.
For the foregoing reasons the appeals are accepted.
The judgment of the High Court is set aside.
The parties will pa their costs.
P.B.R. Appeals allowed.
| IN-Abs | Under item 1 in the Second Schedule to the Andhra Pradesh General Sales Tax Act 1957, manganese ore was liable to be taxed at the point of purchase by the last dealer who bought in the State.
The appellants sell manganese ore to the Mines and Minerals Trading Corporation which exports the ore to buyers in foreign countries.
Their contention before the Sales Tax authorities that the sales of the ore to the MMTC were complete within the State of Andhra Pradesh and that it was the MMTC which was the last purchaser liable to pay sales tax was rejected.
On appeal the High Court held that the appellants ' contracts with the MMTC were integrally connect ed with the contract entered into by the MMTC with the foreign buyer and, as such, the appellants were the last purchasers liable to pay the tax.
The respondent State contended before this Court that since the property in the goods passed from the appellants to the MMTC on board the ship in view of the f.o.b.
charac ter of the contract, it was the appellants who, as the last purchasers, were liable to pay the tax and not the MMTC, Allowing the appeals, HELD: The law is that it has to be found out whether the contracts between the merchants and the Corporation are integrated contracts in the course of export or different contracts.
If they are different, the last purchaser within the State is liable to pay the sales tax.
[446G] (i) The tests for finding out the sale in the course of export are that there must be a single sale which itself causes the export or is in the progress or process of ex port.
There is no room for two or more sales in the course of export.
The only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the exporter to the importer.
[443E F] (ii) State Corporations are often the only authori ties allowed to export goods out of the country.
These corporations enter into contracts with foreign buyers for export and the Corporations in turn give directions to the merchants to place the goods on board a ship.
These direc tions are not in the course of export because the export sale is an independent one between the Corporations and their foreign buyers.
[444D E] (iii) In f.o.b. contracts the sellers ' duty is to place the goods free on board a ship named by the buyer but the mere mention of f.o.b. price or f.o.b. delivery in a contract between the merchants and the trading corporations which export the goods under a separate contract with the foreign buyers to the latter will not make the two contracts either integrated or the contract between the merchants and the Corporation an f o.b. contract.
There cannot be two last purchasers in the sale of the same goods within the same State.
There cannot be two exporters in respect of the same goods.
[444G & 445C] 442 (iv) In string contracts the contracts between the Corporation and the foreign buyers are different and it is the Corporation which enters into independent contracts with foreign buyers on f.o.b. basis.
Under the terms of the contract, the merchants are required to bring the goods f.o.b.
to the ship named by the Corporation.
[444C] Mohd. Serajuddin etc.
vs State of Orissa [1975] Supp.
S.C.R. 169, Coffee Board, Bangalore vs Joint Commercial Tax Officer, Madras ; and M/s. Binani Bros. (P) Ltd. vs Union of India & Ors.
[1974] 1 S.C.C. 459, followed.
National Tractors Hubli vs Commissioner of Commercial Taxes Bangalore , no longer good law.
|
APPEAL NO. 691 of 1976.
(From the Judgment & Order dated the 16th December 1975 of the Gujarat High Court in Special Civil Appln.
No. 572 of 1975).
G.L. Sanghi and Girish Chandra, for the Appellants.
480 V.M. Tarkunde, K.L. Hathi and Mrs. P.C. Kapur, for respondent No. 1.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal on certificate is from the judgment of the High Court of Gujarat.
The appellants 1 and 2 are respectively the Union of India and the Regional Provident Fund Commissioner.
Dhrangadhra Chemical Works Kamdar Sangh (hereinafter to be described as the union) is the first respondent.
The second respondent is Dhrangadhra Chemical Works (hereinafter to be described as the employer).
With respect to the dearness allowance (D.A.) of the workers under the employer there was a reference No. 70/70 before the Industrial Tribunal at Ahmedabad.
The parties arrived at a settlement of the said industrial dispute and an award was passed in terms of the settlement.
According to the award the employer was to pay D.A. to its employees at the rate of the quarterly average cost of living index as settled by the Simla Bureau, popularly known as "All India Consumers Price Index" for the relevant quarter.
Thus for the 'months of January, February and March, 1974, the rate of D.A. was on the basis of the average cost of living index for the months of July, August and September 1973 as pub lished by the said Bureau and this was to follow for every quarter.
It is the accepted position that for the months of April, May and June 1974 the D.A. worked out at Rs. 78/ per month, but for the quarter.
commencing on 1st July, 1974, and ending on 30th September, 1974, it worked out at Rs. 88.50 per month.
In other words, it was an agreed position between the union and the employer that the rate of D.A. payable to all the workers from 1st July, 1974, was at the rate of Rs. 88.50 per month.
With effect from 6th July, 1974, The Additional Emolu ments (Compulsory Deposit) Ordinance 1974 came into force.
This Ordinance was replaced by The .
(Act No. 37 of 1974) (briefly the Act) and the Act is deemed to have come into force on the 6th day of July 1974.
We have already made a detailed reference to the aim and object of the Act and also dealt with the material provi sions thereof in dealing with a similar question in Civil Appeal No. 690 of 1976 in which we have delivered our judg ment to day(1).
It is, therefore, not necessary to repeat those observations here.
The short question that arises in this particular appeal turns on the Explanation I to section 2(b) of the Act.
We will, therefore, read that provision: "2(b) 'additional dearness allowance ' means such dearness allowance as may be sanc tioned from time to time, after the appointed day, over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect.
(1) [1977] 2 S.C.R.472.
481 Explanation I.
Where payment of dearness allowance is linked to a cost of living index or any other factor, any automatic payment, after the appointed day, of dearness allowance in consequence of any rise in such cost of living index or in consequence of any change in such other factor shall, notwithstanding the provisions of this clause, be deemed to be the additional dearness allowance.
" It is clear under section 2(b) that additional D.A. has to be sanctioned after the appointed day. "Sanctioned" is the heart of the definition clause.
Since additional D.A. is defined to mean such D.A. as may be sanctioned from time to time after the appointed day, Explanation I 'to the definition is inserted to.
deal with a situation to avoid any controversy about the sanction while there is an auto matic rise in D.A. linked to a cost of living index.
Where D.A. is linked to a cost of living index any automatic payment, after the appointed day, of D.A. in consequence of any rise in such cost of living index shall be deemed to be the additional D.A.
In the absence of Explanation I there would have been scope for controversy whether additional D.A. which is paid automatically with the rise in the cost of living index, as agreed upon, can be said to be D.A. sanctioned from time to time.
Such a controversy is set at rest by insertion of Explanation I which is a deeming clause.
The question that arises for consideration in this appeal is whether the rise in the cost of living index has also got to be after the appointed day.
The union contends that the D.A. of Rs. 88.50 which is payable from 1st of July, 1974, for the quarter 1st July, 1974 to 30th Septem ber, 1974 is an pursuance of the rise of cost of living index between January to March 1974 which is prior to the appointed day, namely, 6th July, 1974.
It is, therefore, submitted that no additional D.A. is deductible under the Act.
The High Court has accepted the contention of the union and allowed the application under Article 226 of the.
Con stitution granting a Mandamus restraining the employer from deducting additional D.A. from the emoluments of the em ployees.
The High Court also granted certificate to appeal to this Court.
it is common knowledge that when D.A. is linked to a cost of living index, actual determination of the D.A. takes place after the index is published and known.
The index, therefore, is always of a past period by the yardstick of which D.A. is adjusted.
This being the concept about link age of D.A. to cost of living index, Explanation I makes it clear that when payment of D.A. is linked to a cost of living index any automatic payment after the appointed day of D.A. in consequence of any rise in the cost of living index shall.
notwithstanding the provisions of this clause, be deemed to be the additional D.A.
The non obstante clause in the Explanation takes note of the definition clause where sanction after the appointed day has been mentioned.
Explanation I therefore, plays its role, not withstanding whatever is stated in section 2(b), the definition clause.
We do not find anything in Explana tion I to warrant the conclusion that rise of the cost of living index should be after the appointed day.
What is to be after the appointed day is "any automatic payment of D.A. in consequence of any 482 rise . "and not that any rise in the cost of living index should be after the appointed day.
We are, therefore, unable to agree with the High Court that the rise of cost of living index also should be after the appointed day.
It is sufficient for the purpose of Explanation I if payment of D.A., in consequence of rise of cost of living index, takes place after the appointed day on account of rise in the cost of living index even prior to the appointed day.
The nexus for the purpose of Explana tion I is with the payment after the appointed day and not with the rise in the cost of living index.
The specified percentage of additional D.A. which is 50% of the rise, being the difference, between Rs. 78/ and Rs. 88.50 is, therefore, deductible under section 6(2)(b) of the Act and the High Court was not correct in holding to the contrary.
The appeal is allowed and the judgment of the High Court is set aside.
There will be, however, no order as to costs.
P.B.R. Appeal allowed.
| IN-Abs | Section 2(b) of the defines additional dearness allowance to mean such dearness allowance as may be sanctioned from time to time after the appointed day over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect.
Expla nation I to the clause states that where payment of dearness allowance is linked to the cost of living Index any auto matic payment after the appointed day of dearness allowance in consequence of any rise in such cost of living index or in consequence of any change in such other factor shall, notwithstanding the provisions of this clause, be deemed to be the additional dearness allowance.
Dearness allowance was paid to the employees of the respondent at the rate of quarterly average cost of living index for the relevant quarter.
The rate of dearness allow ance for one quarter e.g. the first quarter of 1974 was paid on.
the basis of the average cost of living index for the months of July September, 1973.
For the quarter July September, 1974 there was a rise in the cost of living index and consequently there was a rise in the dearness allowance payable to the employees.
In a writ petition under article 226 of the Constitution the employees contended that the increased dearness allowance payable for the quar ter July September, 1974 was as a result of rise in the cost of living index between January March, 1974 which was before the appointed day in July 6, 1974 and, therefore, no additional dearness allowance was deductible under the Act.
The High Court granted the writ.
Allowing the appeal, HELD: The High Court was wrong in its view that the rise of cost of living index should be after the appointed day.
The nexus, for the purpose of the explanation, is with the payment after the appointed day and not with the rise in the cost of living index.
There is nothing in the Explanation to warrant the conclusion that rise in the cost of living index should be after the appointed day.
What is to be after the appointed day is any automatic payment of dearness allowance in consequence of any rise in such cost of living index and not that any rise in the cost of living index should be after the appointed day.
[482B: 481H] When D.A. is linked to the cost of living index, actual determination of the D.A. takes place after the index is published and known.
The index, therefore, is always of a past period by the yard stick of which D.A. is adjusted.
This being the concept about linkage of D.A. to cost of living index.
Explanation I makes it clear that when pay ment of D.A. is linked to cost of living index any automatic payment after the appointed day of D.A. in consequence 'of any rise in the cost of living index shall, notwithstanding the provisions of this clause, be deemed to be the addition al D.A. [481G]
|
n No. 340 of 1972.
(Under article 32 of the Constitution of India).
P.H. Parekh and Miss Manju Jetlcy, for the petitioners in W.P. 340/72 excepting petitioner No. 59 and for petition ers in W.P. 1526/ 73.
Petitioner No. 59 in W.P. No. 340/72 in person.
Yogeshwar Prasad, S.K. Bagga, Mrs. section Bagga and Miss Yesh Bagga for the petitioner in W.P. No. 286/74.
Niren De, Attorney General in writ petition 340, Sardar Bahadur Saharya and Vishnu Bahadur Saharya, for respondents Nos. 1, 3, 4, 5 and 15 in W.P. 340/72 and respondents in all the W.Ps.
K.J. John for M/s. J. B. Dadachanji & Co. for R.R. 2, 6, 8, 10, and 12 in W.P. 340 & 1526 and R.R. 6, 8, 9, 11 and 12 in W,P. 286/74.
S.K. Mehta, K.R. Nagaraja and P.N. Puri for R.R. 13 178 in W.P. 1526/73.
The Judgment of the Court was delivered by RAY, C.J.
This Court on 29 August, 1974 appointed Shri Debabrata Mookerjee Chairman to convene, fix the date and hold the meeting of New Friends Cooperative House Build ing Society Ltd. referred to as the Society in accordance with the provisions of the Delhi Co operative Societies Act, 1972.
This meeting was direct 374 ed to be held for the purpose of electing the members of the New Managing Committee The Chairman was directed to look into each and every disputed question of membership.
The Chairman was further directed to decide whether the persons had been rightly or wrongly declared to be defaulters.
The order further directed that if the Chairman came to the conclusion that the person had been wrongly declared to be a defaulter, the Chairman would include him or her in the list of members.
The Chairman was also asked to give effect to all orders of this Court already made in regard to persons who were declared defaulters and who according to orders of this Court on payment of moneys are not and cannot be treat ed defaulters.
The Chairman was asked to go into cases where money had been sent and not accepted.
If the Chairman came to the conclusion that money had been wrongly not accepted, the Chairman would decide the same in accordance with Rules and Bye laws of the Society.
There are further details in the order dated 29 August, 1974.
In the order dated 29 August, 1974 Brij Mohan Malhotra was given liberty to adduce proof before the Chairman that the money was tendered Within time.
If the Chairman came to the conclusion that it was tendered in time, he would decide in accordance with Rules and Bye laws of the Society.
The Chairman was entitled to scrutinise whether any person had been either illegally brought in as a member or illegally removed, having regard to the rules, bye laws and regulations of the Society.
Inder Bir Kaur alleged that she had been illegally removed from membership.
The Chairman was directed to go into the question.
The order was made in two writ petitions No. 340 of 1972 and 1526 of 1973 and in a number of miscellaneous applica tions.
On 6 July, 1971 the Lt. Governor passed an award direct ing the Society to pay Rs.22 lakhs to the Delhi Administra tion.
On 9 July, 1971 the Lt Governor by a notification removed the elected Managing Committee and appointed a nominated ' Managing Committee under Rule 56 of the Rules made under the Bombay Cooperative Societies Act, 1925 here inafter referred to as the Bombay Act which applied to Delhi.
The term of the Managing Committee was for one year.
On 23 October, 1971 the nominated Managing Committee passed a resolution to make the award rule of the Court.
On 18 December, 1971 the nominated Managing Committee passed a resolution for having direct sub leases.
On 22 January, 1972 the nominated Managing Committee called for more funds.
On 5 July, 1972 the Lt. Governor issued second notification extending the term of the nominated Managing Committee by two years.
The Society was the subject matter of two writ peti tions.
287 members of the Society filed writ petition No. 340 of 1972 hereinafter referred to Raj Rani 's petition.
The members challenged 375 the vires of Rule 56 of the Society on the ground that the rule.was ultra rites section 71 of the Bombay Act and fur ther that the rule was bad on account of excessive delega tion.
The petitioners contended that action under Rule 56 could not.
be taken without complying with the provisions of section 46A of the Bombay Act which was applicable to.
Delhi at the relevant time.
The petitioners also challenged some notifications on the ground that the Lt. Governor having exercised his powers once could not extend the term, In short, it was said that the power of the Lt. Governor was exhausted.
The other challenges were that the notifications were not speaking order and were made malafide.
The broad challenge in the petition was against the extension of term of the Managing Committee.
On 29 August, 1972 Rule Nisi was issued.
On 30 April, 1973 the nominated Chairman of the Managing Committee issued a circular asking the members of the Socie ty to pay certain amount.
On 6 July, 1973 this Court restrained the Society and its Chairman from declaring any member a defaulter. 'On 13 August, 1973 this Court directed that all the interim orders passed in the writ petition should be confined to the petitioners in Raj Rani 's peti tion.
On 16 August, 1973 K.V. Johar filed a writ petition in a representative capacity under Order I Rule 8 of the Code of Civil Procedure.
This is writ petition No.
1526 of 1973 hereinafter referred to as Johar 's petition.
On 20 August, 1973 this Court issued Rule Nisi in Johar 's petition.
On 17 August, 1973 the nominated Managing Committee declared 321 members as defaulters.
This Court on 21 Sep tember, 1973 restrained the Society from taking any steps in pursuance of the resolution dated 17 August, 1973 against the petitioners and all other members of the Society.
On 29 November, 1973 respondent No. 6 filed an applica tion in Johar 's petition for vacating the stay order granted on 21 September, 1973.
An application for vacating the stay order granted on 6 July, 1973 in Raj Rani 's petition was not pursued.
This Court vacated the stay granted on 21 Septem ber, 1973 in Johar 's petition and granted a fortnight 's time to make the requisite payment.
On 6 January, 1974 the nominated Managing Committee declared 39 members as defaulters for non payment of dues, 42 members as defaulters for not submitting the affidavits.
This was one of the controversies which formed the subject mattter of the enquiry made by the Chairman.
On 25 January, 1974 the nominated Managing Committee decided to enrol 60 new members.
On 26 January, 1974 a confidential letter was addressed by respondent No. 6 to the Lt. Governor seeking his approval to the enrolment of 60 new members and allotment of plots to them.
On the same day, the Lt. Governor addressed a letter to respondent No. 6 giving his approval.
The enrolment of 8 1546SCI/76 376 new members on 25 January, 1974, the approval of the Lt. Governor on 26 January, 1974 and the allotment of plots to those 60 new members formed a big controversy which was also enquired into by the Chairman.
Two Civil Miscellaneous Petitions No. 1683 and 1072 of 1974 challenging the declaration of defaulters and the enrolment of new members were filed in this Court in February, 1974.
C.M.P.No.1683 of 1974 is in Raj Rani 's petition and C.M.P.No.
1072 of 1974 is in Johar 's petition.
This Court on 29 March, 1974 directed that all the papers including resolutions, original applications, original allotments should be produced in this Court on 4 April, 1974.
This Court also restrained the Managing Committee by an injunc tion from talking any steps in any manner.
On 4 April, 197 4 this Court passed directions in respect of persons who had made part payments within the time prescribed or even beyond the time prescribed not to be treated as defaulters.
This Court mentioned in its order that the allotment of plots to 60 new members who were characterised by the petitioners as very important persons appeared to have been made in undue haste and the persons in the Waiting list were not considered and that no notice was given to persons inviting application.
This Court directed that the said list of 60 new members had to await final adjudication by.
this Court.
This Court also directed that in case of 60 allot tees no further steps should be taken.
This Court directed that the case of 24 defaulters would be considered if it came to the conclusion that the allotment in favour of 60 new members would be treated as defaulters.
In the order dated 4 April, 1974 petitioners No. 60, 46, 216, 171 and 165 in Raj Rani 's petition who paid in part after due date were not to be treated as defaulters and they were given four weeks time to pay the balance.
It was said that if they failed to pay the balance within the time granted they would be treated as defaulters.
Petitioners No. 1,118, 43 and 287 in Raj Rani 's petition were stated to have paid in full but after the due date.
They were not to be treated as defaulters.
It was also said that if they had not paid the full amount, they were also given four weeks time for paying the balance,if any.
If they did not pay the balance within the time granted they would be treated as defaulters.
In Johar 's petition section Diwan, Virendra Singh, Dalip Singh and Hari Singh were stated to have made payments in part beyond time.
Iqbal Khanna and H. Bhatia were stated to have made payments in part within time.
They were all given four weeks time from the date of the order and in default of payment within the time they would be treated so defaulters.
Ten other persons in Raj Rani 's petition and 14 persons in Johar 's petition were said not to have paid within time.
A list of 31 sons was handed up to this Court by the petitioners.
These 31 persons were alleged to have been admitted as members and to have been allotted plots.
It was contended that this allotment is irregular.
These allotments were made on 26 January, 1974 to which reference has already been made.
It was 377 said that the list of 31 persons would await final adjudica tion.
Ten defaulters in Raj Rani 's petition and 14 de faulters in Johar 's petition aggregating 24 defaulters were to be considered at the time of final adjudication.
It was said that if the allotment in respect of 31 per , sons could not be allowed to stand then the cases of these 24 persons would be considered.
In this back ground on 29 August, 1974 when the two writ petitions filed by Raj Rani and K.V. Johar came up for heating this Court appointed Shri Debabrata Mookerjee as Chairman of the Society.
It may be stated here that some time in 1975 some one started a suit against the Chairman to stop the enquiry by him.
The matter was brought to the notice of this Court.
Some malicious and baseless allegations were made against the Chairman.
Under these circumstances this Court direct ed notice to the respondent who filed the suit to show cause why he should not be committed for contempt.
The Chairman was in the meantime asked to continue and he was directed to look into each and every matter as mentioned in the earlier orders.
The Chairman between 17 March, 1975 and 5 August, 1975 restored the membership of the alleged defaulters.
On 26 April, 1976 tentative voters list was published.
On 14 May, 1976 the Chairman informed the parties that election would be held on 29 August, 1976.
On 12 July, 1976 the Chairman informed the parties that the election would be held on 29 August, 1976 at Mavalankar Hall.
On 27 July, 1976 the Chairman declared that of the 60 new members who had been described as very important persons 21 did not have applications for membership and 38 were not legally admitted members and could not be included in the list.
The Chair man said that the allotment of plots in their favour could not be upheld.
On 28 July, 1976 the list of members was published.
On 17 August, 1976 there was scrutiny of the ballot papers.
On 24 August, 1976 11 persons out of the 60 persons who were enrolled members on 25 January, 1974 and allotted plots on 26 January, 1974 filed two Civil Miscellaneous praying for an order restraining the Chairman from holding the election on 29 August, 1976 These applications were held without serving any party to the proceedings contrary to the rules and practice of this Court.
On 25 August, 1976 coun sel for those petitioners mentioned the applications before the Court presided over by Khanna, J. asking that the applications filed might be heard.
It was also mentioned without informing the parties.
On 27 August, 1976 this Court further adjourned the applications.
On 29 August 1976 the meeting was held and voting took place at Mavalankar Hall.
On 23 September, 1976 the Chairman submitted his report and give copies to the parties.
On 15 October, 1976 11 persons who 378 had made the two applications for restraining of holding of the election filed an application for adjournment of the case for two months.
This Court cannot help observing two features.
One is that an attempt was made some time in the year 1975 to restrain the Chairman from proceeding with the enquiry by filing a suit against him and making baseless allegations.
It is only because this Court took immediate notice of the matter that the frivolous suit which had been filed in abuse of process of court was put an end to.
The second is that on the eve of the election another attempt was made to.
restrain the Chairman from holding the election.
These facts.
along with the attempt on the part of those 11 peti tioners to keep the matter adjourned for two months indicate the persistent attitude on the part of some of those persons to mark time for some oblique purposes.
In view of the importance of issues involved and the gravity of the situation where interest of ordinary citizens was sacrificed to meet the interest of persons of importance and influence that this Court took the aforesaid steps, in order to put an end to the litigation and the controversies, It was to be kept in the forefront that the Society is not yet the lessee of the Government in respect of the land which is to be allotted to the members.
In Volume II in Raj Rani 's petition No. 340 of 1972 appears the printed memorandum agreement to be entered into between the Society and the President of India in respect of land which will be allotted to the members of the Society, On 3 August, 1967 the Deputy Secretary, Delhi Administration wrote to the Secretary of the Society, inter alia, as follows: "I am desired to make it clear that the list of members submitted with your letter ' has been treated as final and no change in that list can be made without prior written permission of the Delhi Administration." The printed memorandum of agreement has three recitals.
One of the racitals is that whereas the Society has depos ited with the Chief Commissioner the sum of Rs.41, 62, 456.61 and has further agreed to deposit with the Chief Commissioner the additional sum or sums as hereinafter provided, being the amounts agreed to be paid by the Society to the President by way of premium for the grant to the Society of the lease hereinafter mentioned which amounts, pending the grant of the said lease, are to be a security to the President for due performance by the Society of the terms of the Agreement.
It is agreed between the parties, inter alia, as follows: 1.
The President hereby grants f0r a period of three years commencing from 13 February, 1973 a licence to the Society to enter upon the said land only for the purposes of making surveys and taking measurements and levels for preparing a lay out plan.
Upon the completion of the development of the land in accordance with the provisions contained herein and to the satisfaction of the Chief Commissioner and issue by him of a certificate to that effect 379 and provided that the other conditions of the Agreement have been duly observed, the President will, in .considera tion of the expenses incurred by the Society on the develop ment of the land and the payment of the premium and of the yearly rent as herein provided and of the covenants on the part of the Society to be;contained in the lease, grant to the Society and the Society ,shall accept a lease of such of the residential plots as may be determined by the Chief Commissioner in ,his absolute discretion.
XV(a).
After the execution and registration of the lease, the Society shall sub lease, within such time and on such premium and yearly rent as may be fixed by the President, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on the free hold or lease hold basis, ,any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Can tonment and who may be approved by the Chief Commissioner.
Reference to the Agreement is necessary to show that the Society is not yet lessee of the Government in respect of the land.
This is a mere agreement for the grant to the Society of the lease.
The Government refused to grant lease.
Thereafter the matter was referred to the arbi tration of the Lt. Governor.
The Lt. Governor made an award directing the Society to pay Rs.22,45,742/ as the balance amount representing the cost of land.
In 1972 a supplementary agreement was made between the President of India and the Society.
One of the recitals in that agreement mentions that the Society has not completed the development of the land and the members of the Managing Committee resolved that the Lt. Governor of Delhi be re quested to allow the members to pay their individual dues to the Administration to evacute their sub teases.
This recital indicates that there was an attempt on the part of individual members to pay dues to the Society as well as to the Government.
It can, therefore, be seen that membership of the Society and the allotment of lands are different matters.
One of the main contentions before the Chairman was in regard to membership of 60 persons.
These 60 persons were admitted to membership on 25 January, 1974.
The Lt, Governor approved of their membership on 26 January, 1974.
The Chairman found that of these 60 persons 21 had at one time or another withdrawn their membership.
10 out of those 21 had either never applied or never paid the requi site membership fee.
The result, according to the Chair man, was that the cases of 39 persons were to be consid ered.
The Chairman noticed that "many of these 60 persons were highly placed Government officials and friends and relations of persons prominent in public life." Another allegation was that many of them happened "to be close relations or friends and members of the nominated Managing Committee.
" At the meeting held on 27 July, 1976 the Chairman re ferred to Rules 24 and 30 of the 1973 Delhi Cooperative Societies Rules.
These 380 rules were under the Delhi Co operative Societies Rules 1972 which replaced the Bombay Act 1925 in relation to the Union Territory.
These rules relate to conditions to be complied with for admission to membership.
Bye law 5 of the Society Bye laws was also referred to by the Chairman.
Broadly stated, Rule 24 requires a person to apply in writing in the form laid down by the Society for membership.
His application is to be approved by the Committee of the Society.
He has to fulfil other conditions laid down in the Act, the Rules and the Bye laws.
Rule 25 of the Delhi Co operative Societies Rules, 1973 provides toter alia that no person shall be eligible for admission as member of a co operative society, if in the case of membership of a housing society (1 ) he owns a residential house or a plot of land for the construction of a residential house in any of the approved or up approved colonies or other localities in the Union Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children on lease hold or free hold basis; (2) he deals in purchase or sale of immovable property either as principal or as agent in the Union Territory of Delhi; or (3) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.
Rule 25(2) provides that if a member becomes or has already become subject to any disqualifications specified in sub rule (1), he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred.
Rule 30 deals with the disposal of application for admission of members.
The rule provides that on receipt of an application for membership, the co operative society shall enter particulars of the application in the register of applications in the form mentioned therein.
The co opera tive society shall dispose of an application received for admission as member as early as possible and in no case later than the expiration of a period of one month from the date of receipt of the application by the Society.
In case of refusal to admit, such society shall communicate its decision together with reasons thereof.
The appeal to the Registrar lies against the order for refusal to admit a member.
An important feature in rule 30 is the date of receipt of application for membership because the applica tion is to be dealt with within one month.
Rule 30(4) provides that the person whose membership has been approved by the Managing Committee of a co operative society shall deposit the membership fee, and the amount of the qualify ing shares necessary to become a member, within 14 days of the passing of the resolution of the Managing Committee approving the membership of the person concerned.
Bye law 5, inter alia, provides that every person seek ing membership of the Society shah sign a declaration to the effect that he or his wife (she or her husband) or any of his/her dependents does not own a dwelling house or plot in Delhi and that he/she is not a member of any other coopera tive house building society.
381 Judged by these rules and considering the rival conten tions of the parties the Chairman found that of the 39 cases there was only one case of N.K. Mukherjee M. No. 1526 which fulfilled the requirements of the rules and the bye laws and the Chairman in his report declared him as having been validly accepted as member.
Out of those 39 persons 20 applications did not bear any date.
The date of an applica tion, the prescription of time for deposit of the membership fee and the amount of qualifying share and the filing of the requisite declaration arc formalities which could not be disregarded.
The Chairman rightly came to the conclusion that out of 39 persons except N.K. Mukherjee the other 38 were not legally admitted to the membership and, therefore, they could not be treated as members.
The Chairman in paragraphs 9 to 16 of the Report consid ered the cases of several persons who. had been declared defaulters.
He rightly came to the conclusion that 108 persons mentioned in Annexure 'C ' should be restored to membership.
The Chairman next considered whether there should be a waiting list.
A list of 102 persons described as the wait ing list was forwarded and endorsed by the officers of the Delhi Administration.
The Chairman came to the conclusion that of the 102 persons on the list, only a few prosecuted their claims before the Chairman and the rest appeared to him to be no more interested in the membership of the Socie ty.
In an annexure marked 'G ' the Chairman rightly included in the waiting list the names of such persons who could be considered.
The Chairman said that 38 persons whose membership was cancelled by him at the meeting held on 27 July, 1976 could apply afresh so that their applications could be considered.
The Chairman said that 24 persons made applications for membership.
The Chairman rightly said that it would be fair to leave the consideration of the applications of these 24 persons to the new Managing Committee and that their names should be kept in a waiting list.
The Chairman next found that the Society had received from 4 persons deposits towards the price of the land more than a decade ago but took no steps to return the moneys or to admit them to the benefit of membership.
Again, there were 4 other persons whose land had been acquired by the Delhi Administration.
There was an agreement which required the Society to offer membership to these persons upon their fulfilling the conditions of membership.
The Chairman found that those 4 persons whose land had been acquired had made applications.
The Chairman tightly came to the conclu sion that these 8 persons, namely 4 from whom moneys had been received and the other 4 whose land had been acquired should be accepted as members.
Out of 38 persons whose membership was cancelled by the Chairman on 27 July 11 applied to this Court in C.M.P. No. 2065 of 1976 for an order that admission of 124 members mentioned in 382 Annexure 'C ' to the petition is illegal and for further declaration of revocation of membership of 38 members as mentioned in Annexure 'B ' to the said petition.
These petitioners also asked for an order directing the Chairman not to proceed with the meeting of the Society and the holding of elections on 29 August, 1976.
These 11 persons also made applications C.M.Ps.
No. 8485 and 8486 for filing objections to the report of the Chair man.
They wanted two months to file objections.
It should be stated here that 11 applicants wanted to prevent the holding of the meeting and the election for the purpose of prolonging litigation.
This Court rightly did not prevent the holding of the meeting and the election.
The report of the Chairman shows that the meeting as well as the election was lawfully and validly held.
These 11 persons were given full opportunity to make their submissions by way of objection to the report.
Coun sel appeared and made their submissions.
These 11 persons submitted that no relief can be sought by the petitioners in the writ petitions against the Society and that Article 19 cannot now be invoked for the enforce ment of rights.
Their further submissions were these.
On 6 January, 1974 39 persons were declared defaulters by the Managing Committee for non compliance with the order of this Court passed on 11 December, 1973.
One of those 39 defaulters made an application to this Court on 9 February, 1974 for condonation of delay and for restoration of his membership.
The application was dismissed on 25 February, 1974.
On 4 April, 1974 this Court granted four weeks time to 15 persons out of the 39 declared defaulters and there fore the default of 24 persons was confirmed.
The Chairman re considered the cases of 24 defaulters including the one whose application was dismissed.
These 11 persons submitted that their membership and allotment should have been restored.
The Chairman was also in error in considering the cases of 8 persons because records were not available.
It is significant that out of 1100 members and the several parties to the writ petitions none has taken objec tion to the report of the Chairman.
The only persons who objected are out of the 24 persons those membership and allotment on 26 January, 1974 was cancelled.
These 24 per sons have however been put by the Chairman in a waiting list.
The membership as well as the allotment of plots to these 38 persons is rightly rejected by the Chairman.
The Chairman based his finding on facts of tabulated statements prepared in the presence of counsel and parties in open public hearings.
No challenge can be taken to the dates and facts.
The Chairman rightly found that even if the date of the eligibility certificate is taken as the effective date of application the position cannot be otherwise.
The Chairman rightly found that the records do not indicate that the payment was 383 made within 14 days of the date of resolution.
The Chairman rightly found that the requirement of payment is not proved and there has not been substantial compliance.
The conclu sion is correct and inescapable that the enrolment of 38 persons was not only rushed but was done with unseemly haste.
It also appears from the report of the Chairman that persons the waiting list were not considered before these 38 persons were enrolled as members.
Reference may be made to clause (7) of the Award of the Lt. Governor which was made the rule of Court.
The award is dated 6 July, 1971.
Clause (7) made it encumbent on the Society to act in ac cordance with the award.
There were some persons who were treated by the new Managing Committee as defaulters and these 38 persons were taken by the new Managing Committee unlawfully as members.
The Chairman in Annexure 'C ' restored 108 persons to membership.
These 108 persons had been declared defaulters by the nominated Managing Committee.
This Court by order dated 29 August, 1974 required the Chairman to look into each and every disputed question of membership and to decide as to whether a member has been rightly or wrongly declared a defaulter.
The nominated Managing Committee on 6 January, 1974 declared a number of persons to be defaulters.
The declara tion of defaulters could not have been made except by the General Body with a special majority and with the approval of the Registrar.
The nominated Managing Committee could not have functioned after 1 April, 1973 in view of the provisions of section 92 read with section 32 of the Delhi Co operative Societies Act, 1972.
In view of the award of the Lt. Governor dated 6 July, 1971 the Committee had there after no jurisdiction to declare any member a defaulter.
This Court by order dated 4 April, 1974 observed that the case of 24 defaulters would be considered if it transpired that the list of new allottees could not be allowed to stand.
The act of declaration of defaulters on 6 January, 1974 cannot be dissociated from the enrolment of new allottees on 25 and 26 January, 1974.
The report of the Chairman in restoring 108 alleged defaulters to membership is just and correct.
This Court by Order dated 29 August, 1974 required the Chairman to look into each and every disputed question of membership and to decide whether a person has been tightly or wrongly declared a defaulter.
The order further stated that if the Chairman came to the conclusion that the person has been declared to be a defaulter the Chairman will include him or her in the list of members.
The report of the Chairman is lucid and direct to the point.
The report noticed that there was widespread discontent as to the way in which the affairs of the Society were conducted.
The report said "Allegations of favouritism want of fairplay, mal administration, deliberate suppression of the rights of members were freely made against the nominated Managing Committee in 1971".
The Chairman noticed that there was "nothing to 384 choose between the old elected Committee which was super seded and the nominated Managing Committee which came to take its place".
Letters were hardly replied to.
En quiries were rarely attempted to.
Cheques were hardly ever cashed in time.
Sudden declarations of default were made without following the prescribed procedure laid down in the Act and the Rules.
The nominated Managing Committee issued a circular dated 30 April, 1973 demanding Rs.6 per sq. yard and threatened the members that in case they did not pay the said amount they would be declared defaulters.
This circular is not a notice within the meaning of the bye laws of the Society and declaration of defaulters on the basis of the circular is illegal and contrary to bye laws of the Society.
Further the said circular was despatched after the time for payment mentioned therein was over.
No opportunity was given tog member as required by the mended bye laws to show cause why his right to a plot would not be forefeited for non payment of deposit.
Figures of alleged dues were not mentioned in the circular in most of the case.
In view of the award of the Lt. Governor dated 6 July, 1971 the nominated Managing Committee could not declare, any member to be a defaulter.
Further the order of this Court dated 6 July, 1973 continued to be in force, in so far as the petitioners in Raj Rani 's petition are concerned.
The declaration of defaulters from amongst the petitioners in Raj Rani 's petition was unjustified.
The action of the Managing Committee declaring defaulters was in bad faith because they wanted to confer benefits on other persons under the guise of declaration of defaulters.
This Court in the order dated 4 April, 1974, observed that the cases of 24 defaulters would be considered if it transpired that the list of allottees on 26 January, 1974 could not be allowed to stand.
The Chairman has rightly dealt with the cases of 24 defaulters in view of his right conclusion that the allotments on 26 January; 1974 were bad.
The Chairman considered the cases of 42 persons who had been declared defaulters.
The Chairman rightly came to the conclusion that 30 persons had genuine grievances and he accepted them as members on their submitting fresh affida vits with a view to putting an end to all controversies whether they filed affidavits of not.
R was admitted before the Chairman that all these persons had field their affidavits originally while seeking membership.
The ques tion was whether they filed any fresh affidavits as required by the subsequent direction of the Delhi Development Author ity.
Some of the members contended before the Chairman that they filed amended affidavits.
Some members contended that in spite of their request to give the proforma of the amend ed affidavit the nominated Managing Committee did not give the proforma of the affidavit.
Under these circumstances the Chairman rightly accepted the contentions of 30 out of the 42 persons.
385 The Chairman rightly held that 4 persons whose money was lying with the Society should be made members.
The Chairman also rightly held that 4 persons whose lands had been ac quired by the Society should be accepted as members.
The Chairman in paragraph 37 of the report has indicated that the new Managing Committee should fix priorities in the order mentioned in sub paragraph (a) to (e).
These in sub paragraphs (a) to (b) belong to classes of members in whose favour there was specific allotment as early as the year 1957.
Due communication was made to them about the specific allotment of plots.
They were persons who had paid more than Rs.17,000.
They were declared defaulters for non payment of Rs.3000 or less by the nominated Managing Com mittee as late as the year 1974.
The Chairman rightly put persons in sub paragraphs (a) and (b) in order of priority.
Persons in sub paragraph (c) in paragraph 37 of the Chairman 's report comprise those who were declared default ers round about the year 1962 63.
The amounts paid by persons in sub paragraph (c) are less than the amounts paid by persons in sub paragraphs (a) and '(b).
There was no specific allotment of plots in favour of persons mentioned in sub paragraph (c).
Persons in sub paragraph (c) there fore cannot claim priority over persons in sub paragraphs (a) and (b).
In sub paragraph (c) only one person objected regarding priority.
The other 47 persons accepted their places in sub paragraph (c).
This also shows the justness of the report,.
Subject to the following directions, the report of Mr. D. Mookerjee dated 23 September, 1976 is accepted and con firmed.
The Managing Committee of the New Friends Co opera tive Society Ltd. (hereinafter called "the new Managing Committee") elected at the meeting held on 29 August, 1976 shall assume charge with effect from the date of this order.
The new Managing Committee shall send to all persons referred to in sub paragraphs (a) to (e)of paragraph 37 of Mr. Mookerjee 's report, through Mr. Mookerjee, a letter stating that membership fee and the amount of qualifying share necessary to become a member of the Society and also copies of this order as well as the appropriate forms of application for membership of the Society and of the affida vits to be sent by the applicants to the new Managing Com mittee within one month from the date of this order.
Each person referred to in sub paragraphs (a) to (e) of paragraph 37 shall, if he desires to have any plot allot ted to him, apply for membership of the Society.
All such applications for membership of the Society shall be sent to Mr. Mookerjee within 30 days.
from the date of receipt of the documents referred to in the next preceding paragraph hereof.
If any application is not received by Mr. Mooker jee within the said period, or if the affidavit referred to in the next preceding paragraph is not enclosed with the application, or if any application or affidavit be found by Mr. Mookerjee to be 386 not in compliance with the form of the application and the affidavit sent to the applicant, Mr. Mookerjee shah reject such application.
Such rejection by Mr. Mookerjee shall be final.
All applications for membership along with affida vits, found by Mr. Mookerjee to be in order, will be for warded by Mr. Mookerjee to the new Managing Committee upon the expiry of the said period of 30 days.
Mr. Mookerjee will make a list of the persons whose applications are so forwarded by him to the new Managing Committee.
The new Managing Committee shall convene a meeting of the Committee within 30 days from the receipt of the appli cations along with the affidavits sent by Mr. Mookerjee to the new Managing Committee as aforesaid and pass a resolu tion accepting all such applicants for membership as members of the Society.
The new Managing Committee shall convey to Mr. Moo kerjee its said resolution within 14 days of the passing of such resolution and shall send to Mr. Mookerjee at least as many copies of the resolution as the number of persons who are admitted as members of the Society by virtue of that resolution.
Mr. Mookerjee will thereafter send a copy of the said resolution to each of the applicants Who is admit ted as a member of the Society by virtue of the said resolu tion.
On receipt of the said communication from.
Mr. Mookerjee each person who has been admitted as member of the Society by virtue of the said resolution shall, within 14 days from the receipt of the communication from Mr. Mooker jee, pay to Mr. Mookerjee by Bank Draft (drawn in favour of "New Friends Co operative House Building Society Ltd.") an amount including the membership fee and the amount of quali fying share necessary to become a member of the Society.
Mr. Mookerjee will thereafter forward the Bank Drafts to the new Managing Committee.
Regarding the allotment of plots, the suggestions of Mr. Mookerjee contained in sub paragraphs (a) and (b) of paragraph 37 of his report will be given effect to by the new Managing Committee, subject to the availability of plots and subject also to each person referred to in the said two sub paragraphs and to whom any plot is allotted complying with the direction contained in the preceding paragraph 7 hereof and further subject to each such person paying his full share of the money payable to the Delhi Development Authority under the Supplementary Agreement entered into between the President of India and the Society on 1 Febru ary, 1972 by a Bank Draft drawn in favour of the Delhi Development Authority".
The allotment of plots among persons referred to in sub paragraphs (a)and (b) of paragraph 37 of Mr. Mookerjee 's report shall be in the order of priority mentioned there and already earmarked for them.
If plots which are already earmarked for persons in subparagraphs (a) and (b) are not available then there will be allotments to those persons by draw of lots first among those in sub 387 paragraph (c): and thereafter among those in sub pargraph (b).
Mr. Mookerjee will prepare a list of persons to whom plots are so allotted and send copies of,the list of the new.
Managing Committee and,the Delhi Development Authority and inform the persons to Whom, such allotments are made.
Each person referred to in the said.
sub paragraphs.
(a) and (b) of paragraph 37 and to whom any plot is allotted shall, within (b) days from the receipt of the communication from Mr. Mookerjee as referred to reparagraph 6 hereof, enquire from the Delhi Development Authority as to the sum payable by him to the Delhi Development Authority as afore said and upon receipt of the reply from the Delhi Develop ment Authority pay the sum to the latter by a Bank Draft within 15 days from the date of the receipt of the reply.
In default of such payment the allotment to him will stand cancelled.
In the event of any such cancellation allotment may be made to the next person if any, in this sub para graph.
Thereafter, if any plot or plots remain to be allotted the allotment or allotments shall strictly be in accordance with the order of priority laid down in paragraph 37 of Mr. Mookerjee 's report.
Such allotments shall be made by Mr. Mookerjee by means of draw of lots first among the persons referred to in sub paragraph (c) thereafter among those in sub paragraph (d) and thereafter among those in sub paragraph (e) of paragraph 37 of his report.
Mr. Moo kerjee will prepare a list of persons to whom the plots are so allotted and send copies of the list to the new Managing Committee and the Delhi Development Authority and inform the persons to whom such allotments are made.
Any person referred to in sub paragraphs (c), (d) and (e) of Mr. Moo kerjee 's report who is allotted any plot shall within 14 days from the receipt of the communication from Mr. Moo kerjee to the effect that a particular plot has been allot ted to him enquire from the Delhi Development Authority as to the sum payable by him to the Delhi Development Authority as aforesaid and upon receipt of the reply from the Delhi Development Authority pay the sum to the latter by a Bank Draft within 15 days from the date of the receipt of the reply.
In default of such payment the allotment to him will stand cancelled.
In the event of any such cancellation, allotment may be made to next person, if any, in that subparagraph.
Each allotment of plot, referred to in this order, shall be in accordance with the application of each appli cant for membership referred to in paragraph 3 hereof, that is to say, will not be entitled to any allotment of any land, the area whereof is different from the area mentioned in his application form.
If any person referred to in any of the sub para graphs of paragraph 37 of Mr. Mookerjee 's report has al ready paid any money to the Society and proves such payment to Mr. Mookerjee, the money so paid and proved shall be appropriated towards payment of the amounts mentioned in paragraphs No. 7, 8 mad 11 hereof.
388 14.
Upon allotment of land to any person mentioned in this Report each allottee shall pay to the Society a sum of Rs.1,000/ within one month from the date of such allotment as and by way of costs relating to these proceedings.
In default of payment of such sum, the allotment to such person shall stand cancelled.
In the event of any such default, the procedure laid down in paragraph 10 and 11 hereof shall be followed.
To sum up.
In the event of any lucia default the allotment may be made to the next person, if any, in the sub paragraph group of the defaulting persons and thereafter to next sub paragraph group of persons.
No lease shall be granted to any allottee until and unless all directions contained in this order are fully complied with by him.
The Society shall pay to Mr. Mookerjee a further sum of Rs.45,000/ as his remuneration for the work done by him so far.
The Society shall also pay Mr. Mookerjee a further stun of Rs.5,000/for the work to be done by him under this order and also such further sum or sums as he may intimate to the new Managing Committee as extra expenses, including remuneration for his staff, postage etc.
for the work to be done under this order.
Mr. Mookerjee 's Personal Assistant Mr. Jain will be paid Rs.300/ per month.
This order shall not apply to such members of the Socie ty who have already obtained leases from the President of India.
This order will govern only the affairs of this Society and will not be a precedent for the affairs of any other co operative society.
Some persons have deposited monies with the Registrar of this Court.
The Registrar may hand over the money to the Society.
Writ Petition No. 340 of 1972, 1526 of 1973 and 286 of 1974 and all proceedings in these writ petitions are dis posed of accordingly.
All parties will pay and bear their own costs.
P.H.P. Petitions allowed.
| IN-Abs | On 6 7 1971 the Lt. Governor of Delhi passed an award directing the New Friends Co operative House Building Socie ty Limited to pay Rs.22 lacs to the Delhi Administration.
On 9 7 1971 the Lt. Governor by a notification removed the elected Managing Committee and appointed a nominated Manag ing Commitee under rule 56 of the Delhi Cooperative Socie ties Rules, 1950 framed under the Bombay Cooperative Socie ties Act 1925 as applied to Delhi.
The term of the Manag ing Committee was for one year.
On 23 10 1971 the nominated Managing Committee passed a resolution to make the award of the Lt. Governor a rule of the court.
In December, 1971, the nominated Managing Committee passed a resolution for having direct sub leases and in January 1972 called for more funds.
In July, 1972, the Lt. Governor issued a second notification extending the term of the nominated Managing Committee by further two years.
287 members of the Society filed writ petition No. 340 of 1972, challenging the rites of rule 56 and challenging the action of the Lt. Governor in superseding the elected Managing Committee and in extending the term of the nominat ed Managing Committee by a further period of 2 years.
On 30 4 1973, the nominated Managing Committee issued a circu lar asking the members of the Society to pay certain amounts.
On 6 7 1973, this Court restrained the Society and its Chairman from declaring any member a defaulter.
On 13 8 1973, this Court directed that all the interim orders passed in the writ petition should be confined to the 287 petitioners.
On 16 8 1973, K.V. Johar filed a writ petition in a representative capacity under Order 1 rule 8 of the C.P.C. on behalf of all the members of the Society.
On 17 8 1973, the nominated Managing Committee declared 321 members as defaulters.
On 21 9 1973 this Court restrained the Society from taking any steps in pursuance of the said resolution.
On an application made by respondent No. 6 the stay granted in K.V. Johar 's petition was vacated.
However, application for vacating the stay order in Raj Rani 's petition was not pursued.
On 6 1 1974 the nominated Managing Committee declared 39 members as defaulters for non payment of dues and 42 members as defaulters for not submitting the affidavits.
On 25 1 1974 the nominated Managing Committee decided to enrol 60 new members.
On 26 1 1974 a confidential letter was ad dressed by respondent No. 6 to the Lt. Governor seeking his approval to the enrolment of 60 new members and allotment of plots to them.
On the same day the Lt. Governor gave his approval.
Two C.M. Ps. were filed by the writ petitioners challenging the declaration of the members as defaulters and enrolment of 60 new member`.
This Court on 29 3 1971 di rected that all the papers including resolutions, original applications and original allotments should be produced in the Court.
This Court also restrained the nominated Manag ing Committee by an injunction from taking any steps in any manner.
On 4 4 1974.
this Court passed direction in respect of some members who were declared defaulters and who had made part payments either within the time prescribed or even beyond the time prescribed.
This Court also mentioned that the allotment of plota to 60 new metal:era who were cha racterised as very important persons appeared 372 to have been made in undue haste and the persons on the waiting list were not considered and that no notice was given to persons inviting applications.
This Court directed that the list of 60 new members had to await final adjudica tionand also directed that no further steps should be taken in the case of those 60 allottees.
The Court also directed that the cases of remaining 24 defaulters would be consid ered if it came to the conclusion that the allotment in favour of 60 new members could not be allowed to stand.
Rule 24 of the Delhi Cooperative Societies Rules 1973, requires a person to apply for membership in writing in the form prescribed by the Society.
His application is to be ap proved by the Managing Committee of the Society.
He has to fulfil other conditions laid down in the Act, the Rules and the Bye laws.
Rule 25 provides that a person shall not be eligible for admission as a member if he owns a residential house or a plot of land for the construction of a residen tial house in Delhi.
Rule 30 provides that on receipt of an application for membership the Cooperative Society shall enter particulars of the application in the register of applications in the form mentioned therein.
It also re quires the Society to dispose of the application received as early as possible and in no case later than the expiration of a period of one month from the date of receipt of the application.
Rule 30 further provides that the person whose membership has been approved by the Managing Committee of a Cooperative Society shall deposit the membership fee and the amount of qualifying shares necessary to become a member within 14 days of the passing of the resolution of the Managing Committee approving the membership of the person concerned.
Bye law 5 provides that every person seeking membership of the Society shall sign a declaration to the effect that he or his wife or any of his dependants does not own a dwelling house or a plot in Delhi.
When the writ petitions came up for final hearing along with the C.M.Ps.
on 29 8 1974 this Court appointed Shri Deb Brat Mukherjee as Chairman of the Society.
The Chairman was asked to scrutinise whether any person had been either illegally brought in as a member or illegally removed having regard to the rules, the bye laws and the regulations of the Society.
The Chairman restored the membership of the alleged default ers and published a tentative voters ' list.
The Chairman declared that out of the 60 new allottees 21 did not have applications for membership and 38 were illegally admitted and could not be included in the voters ' list.
The chairman said that the allotment of plots in their favour could not be upheld.
11 persons out of the 60 new allottees filed two C.M.Ps.
in August 1976 praying for an injunction restraining the chairman from holding elections.
These applications were filed without serving any party to the proceedings contrary to the rules and practice of the court.
On 23 9 1976, the Chairman submitted his report.
Allowing the writ petitions, HELD: 1.
The date of the application, prescription of time for deposit of membership fee and the amount of qualifying shares, and the filing of the requisite declaration are formalities which cannot be disregarded.
The Chairman rightly came to the conclusion that the new allottees could not be treated as members.
The new allottees were taken in without considering the persons on the waiting list.
It was incumbent on the Society to act in accordance with clause 7 of the Lt. Governor 's award.
The Managing Committee took 38 persons as members unlawfully.
The declaration of default ers could not have been made except by the General Body with a special majority and with the approval of the Regis trar.
The nominated Managing Committee could not have functioned after 1st April 1973 in view of the provisions of section 92 read with section 32 of the Delhi Cooperative Societies Act 1972.
In view of the award of the Lt. Governor dated 6 7 1971 the Committee had no jurisdiction to declare any member a defaulter.
The act of declaration of defaulters of 6 1 1974 cannot be dis associated from the enrolment of new allottees on 25th and 26th January 1974.
The report of the chairman in restoring membership to the 108 alleged defaulters is just and correct.
The circular dated 30 4 1973 issued by the nominated Managing Committee is not a notice within the meaning of 373 the bye laws of the Society and the declaration of default ers on the basis of the circular is illegal and contrary to the bye laws of the Society.
The circular was despatched after the time for payment mentioned therein was over.
No opportunity was given to a member as required by the amended bye laws to show cause why his right to a plot would not be forfeited.
The order of this court dated 6 7 1973 continued to be in force in so far as the petitionrs in Raj Rani 's petition are concerned.
Therefore, the declaration of defaulters from amongst the petitioners in Raj Rani 's peti tion was unjustified.
The action of the nominated Managing Committee declaring defaulters was in bad faith because they wanted to confer benefits on other persons in the guise of declaration of defaulters.
[381 A B, D, E, H, The Chairman rightly came to the conclusion that out of the 42 declarations of defaulters for not submitting affidavit 30 members had genuine grievances.
[384 F] The Chairman rightly held that the 4 persons whose money was lying with the Society should be made members.
The Chairman also rightly held that the 4 persons whose lands had been acquired by the Society should be accepted as members [385A B] The priority fixed by the Chairmaan about allotment of plots is just.
[385 C] [The Court with a view to ensuring that the persons mentioned in the Chairman 's report should get the reliefs mentioned in the report held that those persons should make fresh applications with affidavits through the Chairman 'and the allotment of plots should be made in accordance with the priority laid down by the Chairman.]
|
Appeal No. 1868 of 1968.
Appeal from the Judgment and Decree dated the 21st February 1968 of the Judicial Commissioner 's Court at Goa, Daman and Diu in Appeal No. 3370 of 1964.
S.V. Gupte, Naunit Lal and (Miss) Lalita Kohli for the Appellant.
V.C. Mahajan and R.N. Sachthey for Respondents.
The Judgment of the Court was delivered by BEG, J.
The Plaintiff appellant Timblo Irmaos Ltd., (hereinafter referred to as 'the Company ') had sued Jorge Anibal Matos Sequeira and his wife (hereinafter referred to as Sequeiras ') for recovery Rs. 2,82,141/ claimed under a contract of 23rd January, 1954, and a sum of Rs. 1,14,700/ , claimed under another contract of 4th February, 1954.
The Sequeiras counter claimed Rs. 3 lakhs as price of 8000 tons of iron ore supplied to the Company; and pleaded that a sum of Rs. 1,13,000/ , advanced by the Company to the Se queiras was to be adjusted after final determination of the amount due as price, of goods sold and supplied.
The Sequeiras are holders of a mining concession.
They, it was alleged, had entered into the two contracts, one of 23rd January, 1954, through their attorney, Ramesh Jethalal Thakker (hereinafter referred to as Thakker Junior), for supplying 8000 tons of iron ore, altered in some respects, by a later agreement, and the other of 4th February, 1954, alleged to be binding on the Sequeiras although entered into through Jethalal C. Thakker (hereinafter referred to as 'Thakker Senior '), the.father of R.J. Thakker.
The most important clause in the contract of 23rd January, 1954, was that iron ore should be loaded in a ship 'Mary K ' at Marmagoa, and that the loading must be done at the rate of 500 tons per 'weather working day" of 24 hours.
Under the contract, the rate of demurrage for not loading the ship in time was to be paid at the rate of US $ 800.00 per day an pro rata for each fraction of a day.
The buyer company was to pay what was called "despatch money" at half the rate of demurrage for time saved in loading.
The payment was to be in the Portuguese Indian rupees at the exchange rate of Rs. 4.76 per US $.
The buyers had also to make an initial payment of Rs. 55,000/ as soon, as delivery by load ing began.
The buyers were also to establish a Letter of Credit, before 27th January, 1954, in favour of 453 the sellers, the Sequeiras, for the full value of the iron ore after deducting Rs. 55,000/ paid initially, and Rs. 1/4 per gross ton awaiting final settlement by presentation within ten days, at the bank named in the agreement, by presentation of the certificate of weight issued by the Master of the vessel.
Certificates of the quality and specifications and of final weighment were to be sent by the buyers after the vessel 's arrival at the port of dis charge.
The second agreement of 4th February, 1954, relates to loading of 6000 to 9000 tons of iron ore of given quality and specifications in the ship 'Mary K ' at the minimum rate of 500 tons per day commencing delivery within 24 hours of the buyer notifying the requirements to the seller.
It also contained other stipulations similar to those of the first one.
The important point to note about this agreement is that it is signed by Jethalal C. Thakker as the attorney of his son Ramesh Jethalal Thakker.
It appears that the clause relating to initial payment was changed so that the sellers, Sequeiras, were paid Rs. 1,13,000/ between 25th January, 1954, and 22nd July, 1954.
It also appears that there was delay in delivery for which the plaintiff claimed demurrage.
There were also complaints about alleged departure by the seller from the specifica tions agreed upon.
The Sequeiras, the sellers, had it seems, also applied for an interim injunction so that the ship 's loading capacity may be checked.
Under orders of the Court, an inspection of the ship was made and a report was submitted by an expert on 15th March, 1954, after the deter mination of its loading capacity so that the ship could finally sail only on 16th March, 1954.
The Margao Comarca Court, where the claim and the counter claims were filed, held that the seller 's attorney, Thakker Junior, who had received Rs. 1,13,000/ , which had to be deducted from the price of the iron ore supplied, was not duly authorised by the power of attorney executed by the Sequeiras to sell.
The Court did not find enough material to reach a definite conclusion about the quantity of ore supplied and left that to be determined in execution pro ceedings.
It, however, held the first contract to be binding between the parties as it had been ratified by the seller and acted upon by the buyer.
But, the second contract was held to be not binding upon the Sequeiras as Thakker (Jun ior) was found to have been given only a limited authority so that he could not constitute his father his attorney for the purpose of executing the second agreement.
The Trial Court accepted the basis of the counter claim of the Sequei ras and found that the company had committed breaches of contract but left the quantum of damages to be determined in execution proceedings.
The decree of the Trial Court was substantially affirmed in appeal.
Nevertheless, the Additional Judicial Commission er Goa, Daman & Diu, had modified the decree, the appellant company has come up to this Court in appeal as of right.
Two questions arise for determination before us.
The first is whether the second contract of 5th February, 1954, was duly covered by the authority conferred by the Sequeiras upon their attorney, Ramesh Jethalal Thakker, or not.
The second 454 relates to the amount of demurrage, if any, payable by the Sequeiras, the defendants respondents, to the plaintiff appellant.
On the first question, the Judicial Commissioner concen trated on the dictionary meaning of the word "exploitation" used in the power attorney executed by the Sequeiras in favour of Thackker Junior.
The learned Judicial Commissioner took the meaning of the word from Chambers ' 20th Century Dictionary which gave: "the act of successfully applying industry to any job, as the working of mines, etc; the act of using for selfish purposes".
The learned Judicial Com missioner also referred to the inability of learned Counsel for the company to cite a wider meaning from the Oxford Dictionary which the learned Counsel had carried with him to the Court.
The Judicial Commissioner then ruled: "Hence, I see no escape from the conclu sion that on the basis of the power of attor ney given by Sequeira to Ramesh the latter could not have entered into any agreement for sale of ore extracted from the mine belonging to Sequeira on his behalf.
Consequently, Sequeira is not bound by the agreement dated 4th of February, 1954".
As already mentioned by us, the first con.tract of 23rd January, 1954, was held to be binding despite this finding because the parties had acted upon it and dealt with each other on the basis that such a contract existed.
We think that this background can be taken into account as indicating what the parties themselves understood about the manner in which the words used in the power of attorney dated 17th January, 1953, executed by Sequeiras in favour.of Thackker Junior was related to the actual facts or dealings between or by the parties.
Moreover, the power of attorney had to be read as a whole in the light of the purpose for which it was meant.
As it is not lengthy, we reproduce its operative part.
It reads: "Jorge Anibal de Matos Sequeira, mar ried, major of age, businessman, landlord, residing in Panglm, whose identity was war ranted by witnesses, said in the presence of the same witnesses that by the present letter of attorney he appoints and constitutes his attorney Mr. Ramesh Jethalal, Bachelor, major of age, businessman, from Bombay, residing at present in Bicholim and conters on him the power to represent him, to make applications, allegations, and to defend his right in any public offices or Banks, to draw up and sign applications, papers, documents and corre spondence; specially those tending to acquire petrol, gunpowder, train, transport vehicles, machines, furniture (alfaias) and other in struments used in mining industry, apply for and obtain licences for importation and expo ration, to give import and export orders, even temporary, sign applications, suits and only other things necessary, attach and withdraw documents, make declaration.
even under oath and in general any powers necessary for the exploitation of the mine named Pale Dongor situate at Pale for the concession of which the said Siqueira applied and which he is going to obtain to impugn, object, 455 protect and prefer appeals upto the higher Courts, notify and accept notifications and summons in terms of Sec. 35 and 37 of the C.P.C., to use all judicial powers without any limitation, to subrogate these powers to some one else.
This was said and contracted.
The witnesses were Bablo Panduronga Catcar ad Xec Adam Xecoli, both married landlords, major of age from Bicholim who sign below".
Apparently, practice and custom have some bearing on these transactions in Goa.
It is this reason that, although the power of Attorney was executed by Mr. Sequeira, yet, his wife was impleaded, according to the practice in Goa, and no objection was raised either on the ground that she was wrongly impleaded or that the power of attorney was vitiated on the ground that it was executed only by her husband.
In any case, the subsequent agreement of 23rd January, 1954, which was held to have been acted upon, and the similar agreement of 5th February, 1954, of which also the defend ants were bound to have and did have full knowledge, were never repudiated by Sequeiras, before the filing of the suit before us.
Indeed, the agreement of 5th February, 1954, appears to be a sequal to the first agreement of 23rd January, 1954.
We do not think that the two could be really separated in the way in which the Judicial Commissioner thought that they could be by holding that the one was acted upon whereas the other was not.
In any case, the second was the result of and a part of the same series of dealings between the parties.
We do not however propose forest our findings on the ground that the parties are bound by the second agreement due to some kind of estoppel.
We think that the terms of the power of attorney also justify the meaning which the parties themselves appear to have given to this power of attorney that is to say, a power to conduct business on behalf of the Sequeiras in such a way as to include sales on behalf of Sequeiras.
We think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed.
It is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself, and, it is only if there is an unresolved problem left by the language of the document, that we need consider the manner in which the words used could be related to the facts and circumstances of the case or the nature or course of dealings.
We think that the rule of construction embodied in proviso 6 to Section 92 of the Evidence Act, which enables the Court to examine the facts and surrounding circumstances to which the language of the document may be related, is applicable here, because we think that the words of the document, taken by themselves, are not so clear in their meanings as the learned Judicial Commissioner thought they were.
As we have already mentioned, the learned Judicial Commissioner chose to concentrate on the single word "ex ploitation" torn out of its context.
The word "exploita tion" taken by itself, could have been used to describe and confer only such general powers as may be 13 1546 SCI/76 458 them.
If the word 'negotiate ' had stood alone, its meaning might have been doubtful, though, when applied to a bill of 'exchange or ordi nary promissory note, it would probably be generally understood to mean to sell or dis count, and not to pledge it.
Here it does not stand alone, and, looking at the words with which it is coupled, their Lordships are of opinion that it cannot have the effect which the appellant gives to it, and, for the same reason, 'dispose of ' cannot have that effect".
We think that this case also bears out the mode of construc tion adopted by us.
We were then referred to O.A.P.R.M.,A.R.
Adaikappa Chettiar vs Thomas Cook & Son (Bankers) Ltd.,(1) where the well known principle of ejusdem generis was applied to hold that general words following words conferring specifically enumerated powers "cannot be construed so as to enlarge the restricted power there mentioned".
In this case, the purpose of the general power was subordinated to the specif ic powers given which determined the object of the power of attorney.
There is no deviation in this case from the general rules of construction set out above by us.
We have indicated above that implied powers cannot go beyond the scope of the general object of the power but must necessari ly be subordinated to it.
In fact, in a case like the one before us, where a general power of representation in ' various business transactions is mentioned first and then specific instances of it are given, the converse rule, which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being large ly common), applies.
That rule is that specific instances do not derrogate from the width of the .general power ini tially conferred.
To such a case the ejusdem generis rule cannot be applied.
The mode of construing a document and the rules to be applied to extract its meaning correctly depend upon not only upon the nature and object but also upon the frame, provisions, and language of the document.
In cases of uncertainty, the rule embodied in proviso 2 to Section 92 of the Evidence Act, which is applicable to contracts, can be invoked.
Thus, the ultimate decision, on such a matter, turns upon the particular and peculiar facts of each case.
Coming now to the second question, we find that the findings of fact recorded by the Judicial Commissioner are unexceptionable.
Firstly, it was found that, although, under the contract, the defendants respondents could load iron ore at any time during 24 hours, which included the night, yet, the defendants were prevented from doing so owing to the failure of the plaintiff to provide either sufficient light ing or enough winches to enable due performance of the contract.
Secondly, it was admitted that the appellant never opened a Letter of Credit with the named bank by 27 January, 1954, as promised by it.
Thirdly, the delay in loading was held to be due to the fault of the company.
The Judicial Commissioner rightly concluded that the company had not discharged its own part of the contract so that it could not claim (1) 459 demurrage or damages.
Indeed, it was found that the company did not have to pay any demurrage at all to the shippers for delayed departure.
Learned Counsel for the appellant relied strongly on the following terms in the contract of 23rd January, 1954: "Demurrage (if any) in loading payable by Seller at the rate of US $ 800.00 per running day fraction of day pro rata.
Buyers to pay despatch money at half the demurrage rate for all time saved in loading.
Payment either way in Portuguese Indian rupee currency at the rate of exchange of Rs. 476/ for US $ 100.00.
" The contention was that this created an absolute liability to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage.
It was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping company or not.
We think that the demurrage could not be claimed when the delay in loading was due to the default of the respondents themselves.
It is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading.
When the appellant itself had committed breaches of its obliga tions, it is difficult to see how the respondents could be made responsible for the delay in loading.
We think that the Judicial Commissioner had rightly disallowed this part of the claim.
In the result, we partly allow this appeal, set aside the finding of the Judicial Commissioner as regards the binding nature of the contract dated 5th February, 1954.
We hold that this document embodied the terms of an agreement which was legally binding on both sides before us.
The case will now go back to the Trial Court for determination of the liabilities of the parties to each other for alleged breaches of contract except to the extent to which the findings negative the claim to demurrage and the admitted payment of Rs. 1,13,000/by the appellant to the defendants which will have to be taken into account.
The parties will bear their own costs.
P.H.P. Appeal allowed in part 462 Ltd., Calcutta vs Commissioner of Excess Profits Tax, West Bengal(1) wherein the High Court held .that when a party at whose instance the reference had been made under section 66(1) of the Indian Income tax Act, 1922 does not appear at the hearing of the reference, the High Court is not bound to answer the question referred to it and should not do so.
It is urged by Mr. Manchanda that the above decision has been followed by some of the other High Courts.
As against that Mr. Desai on behalf of the appellant has urged that the correctness of those decisions is open to question in view of the decision of this Court in the case of Commissioner of Income tax, Madras vs
section Chenniappa Mudaliar(1).
It was held by this Court in that case that an appeal filed by the assessee before the Tribunal under section 33 of the Act should be disposed of on merits and should not be dismissed in default because of non appearance of the appellant.
The Court in this context referred to section 33(4) of the Act and particularly the word "therein" used in that sub sec tion.
It is urged by Mr. Desai that as the Tribunal is bound to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits and answer the question referred to it.
In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appel lant for re hearing the reference and disposing of the matter on merits.
A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons.
In case such a party shows, subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its nonappearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits.
We find it difficult to subscribe to the view that whatever might be the ground for non appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits.
The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits.
There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits.
The courts have power, in the absence of any ex press or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court.
To hold otherwise would result in quite a number of cases in gross miscarriage of justice.
Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident.
Suppose, further, in such an (1) (2) 463 event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident.
To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice.
It is to meet such situations that courts can exercise in appropriate cases inherent power.
In exercising inherent power, the courts cannot override the express provisions of law.
Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non appearance on the date of hearing.
Our attention had been invited to the decision of the Alla habad High Court in Roop Narain Ramchandra (P) Ltd. vs Commissioner of Income tax, U.p.(1) wherein the High Court held that it has no power to recall an order returning a reference unanswered.
For the reasons stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision.
The facts brought out in the appli cation flied on behalf of the appellant show, in our opin ion, that there was sufficient cause for the non appearance on behalf of the appellant on the date of hear ing as well as for the non filing of the paper books within time.
It also cannot be said that there was lack of dili gence on the part of the appellant in approaching of the High Court for recalling it 's earlier order and for dispos ing of the reference on merits.
We accordingly accept the appeal, set aside the order of the High Court and remand the case to it for answering the questions referred to it on merits.
Looking to all the circumstances, We make no order as to costs.
M.R. Appeal al lowed.
(1) 466 The Judgment of the Court was delivered by BHAGWATI, J. There is a house bearing No. 10 A situ ate at Khuldabagh in the city of Allahabad belonging to respondent No. 3.
This house consists of a ground floor and a first floor.
There are two tenements on the ground floor and two tenements on the first floor.
Each of the two tene ments in the first floor is in the possession of a tenant.
The tenement on the northern side of the ground floor is in the possession of respondent No. 3, while the tenement on the southern side is in the possession of the appellant as a tenant since the last over 35 years.
The appellant pays rent of Rs. 4/ per month in respect of the tenement in his occupation.
Respondent No. 3, after determining the tenan cy of the appellant, made an application before the Rent Control and Eviction Officer, Allahabad under section 3 of the U.P. Rent Control & Eviction Act, 1947 for permission to file a suit to eject the appellant on the ground that she bona fide required the rented premises in the possession of the appellant for her use and occupation.
The Rent Control & Eviction Officer, on a consideration of the evidence led before him, came to the conclusion that the need of respond ent No. 3 for the rented premises was not bona fide and genuine and on this view, he rejected the application of respondent No. 3 by an order dated 23rd February, 1972.
Respondent No. 3 preferred a revision application against the decision of the Rent Control and Eviction Officer to the Commissioner and, on the coming into force of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No. 13 of 1972), this revision application came to be transferred to the District Court under section 43 (m) of that Act and it was numbered as Civil Appeal No. 245 of 1972.
The District Judge by an order dated 12th January, 1973 agreed with the view taken by the Rent Control and Eviction Officer and dismissed the appeal.
However, within a short time thereafter, respondent No. 3 undaunted by her failure, filed an application before the Prescribed Authority on 18th January, 1974 under section 21(1) of U.P. Act No. 13 of 1972 claiming release of the rented premises in her favour on the ground that she bona fide required them for occupation by herself and the members of her family for residential purposes.
The Prescribed Authority held that Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 was attracted in the present case, since the ground floor of house No. 10 A constitute a build ing, a part of which was under tenancy of the appellant and the remaining part was in the occupation of respondent No. 3 for residential purposes, and hence it must be held to be conclusively established that the rented premises were bona fide required by respondent No. 3.
The Prescribed Au thority also went into the question of comparative hardship of the appellant and respondent No. 3 and observed that greater hardship would be caused to respondent No. 3 by refusal of her application than what would be caused to the appellant by granting it.
On this view, the Prescribed Authority allowed the application of respondent No. 3 and released the rented premises in her favour.
The appellant being aggrieved by the order passed by the Prescribed Authority prefered an appeal to the District Court, Allahabad.
The 467 District Court agreed with the view taken by the Prescribed Authority that Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 was applicable to the facts of the present case and "that fact conclusively proved that the building was bona fide required" by respondent No. 3.
But on the question of greater hardship, the District Court disagreed with the conclusion reached by the Prescribed Authority and held that the appellant was likely to suffer greater hard ship by granting the application than what respondent No. 3 would suffer by its refusal.
The District Court accordingly allowed the appeal and rejected the application of respond ent No. 3 for release of rented premises.
This led to the filing of a writ petition by respondent No. 3 in the High Court of Allahabad challenging the legali ty of the order rejecting her application.
Respondent No. 3 contended that since her bona fide requirement of the rented premises was established by reason of applicability of Explanation (iv) to section 21 (1) of U.P. Act No. 13 of 1972, the question of comparative hardship was immaterial and the District Court was in error in throwing out her application on the ground that greater hardship would be caused to the appellant by granting her application than what would be caused to her by refusing it.
The High Court while dealing with this contention observed that the Pre scribed Authority had recorded a finding of fact that "the accommodation on the ground floor constituted one building" and "the respondent was in possession of a part of the building and the land lady was in occupation of the remain ing part of the building for the residential purposes" and this finding of fact reached by the prescribed Authority was confirmed by the District court and in view of this finding which the High Court a apparently thought it could not disturb, the High Court proceeded on the basis that Expla nation (iv) to section 21 (1) of U.P. Act No. 13 of 1972 was applicable in the present case.
But the High Court went on to point out that once it was held that Explanation (iv) to section 21(1) of the U.P. Act No. 13 of 1972 was attracted, there could be no question of examining comparative hard ship, for in such a case greater hardship of the tenant would be an irrelevant consideration.
The High Court on this view allowed the writ petition, set aside the order of the District Court and allowed the application of respondent No. 3 for release of the rented premises but gave two months ' time to the appellant to vacate the same.
The appel lant being dissatisfied with this order passed by the High Court preferred the present appeal with special leave ob tained from this Court.
Now, it may be pointed out straight away that if Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 is applica ble in the present case, the question of comparing the relative hardship of the appellant and respondent No. 3 would not arise and respondent No. 3 would straight away be entitled to an order of eviction as soon as she shows that the conditions specified in the Explanation are satisfied.
Section 21 (1), as it stood at the material time with the retrospective amendment introduced by the U.P. Urban Build ings (Regulation of Letting, Rent & Eviction) (Amendment) Act, 1976 being U.P. Act 470 accommodation which is the subject matter of tenancy.
The question thus is: what is the sense in which the word 'buil ding ' is used when it occurs for the second time in the Explanation.
The context clearly indicates that the word 'building ' is there used to denote a unit, of which the accommodation under tenancy constitutes a part and the remaining part is in the occupation of the land, lord for residential purposes.
The accommodation under tenancy and the accommodation in the occupation of the landlord together go to make up the 'building '.
The use of the word 'part ' is a clear pointer that the 'building ', of which the accommoda tion under tenancy and the accommodation in the occupation of the landlord are parts, must be a unit.
Where a super structure consists of two or more tenements and each tene ment is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be a unit and not part of a unit.
It is only where there is a unit of accommodation out of which a part is under tenancy and the remaining part is in the occupation of the landlord, that the Explanation, would be attracted.
To determine the applicability of the Explana tion, the question to be asked would be whether the accommo dation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommoda tion ? The object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover posses sion of the part let out to the tenant.
It could never have been intended by the Legislature that where a super struc ture consists of two independent and separate units of accommodation one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant.
It is difficult to see what social object or purpose the legislation could have had in view in conferring such a right on the landlord.
Such a provision would be plainly contrary to the aim and objective of the legisla tion.
On the other hand, if we read the Explanation to be applicable only to those cases where a single unit of accom modation is divided by letting out a part to a tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded to the tenant.
This construction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant, unless the landlord establishes his bona fide requirement of the accom modation under tenancy.
We may point out that Mr. Justice Hari Swarup has also taken the same view in a well consid ered judgment in Chuntwo Lal vs Addl.
District fudge.
Alla habad(1) and that decision has our approval.
Since the question as to the applicability of Explana tion (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid construction of the Explanation, we must set aside the judgment of the High Court as also the order of the District Court and remand the case to the District Court with a direction to dispose it of in the light 471 of the interpretation placed by us on the Explanation, It was contended before us on behalf of the appellant that since Explanation (iv) has been omitted by U.P. Act No. 28 of 1976, respondent No. 3 was no longer entitled to take advantage of it and her claim for possession must fail.
But the answer given by respondent No. 3 to this contention was that the omission of Explanation (iv) was prospective and not retrospective and since Explanation (iv) was in force at the date when respondent No. 3 filed her applica tion for release, she had a vested right to obtain release of the rented premises in her favour by virtue Explanation (iv) and that vested right was not taken away by the pro spective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act No. 28 of 1976.
We have not pronounced on these rival conten tions since we think it would be better to leave it to the District Court to decide which contention is correct.
If the District Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 respondent No. 3 is no .longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question as to whether Explanation (iv) is attracted on the facts of the present case, If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, the District Court will proceed to decide whether the two tenements or the .around floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Pre scribed Authority.
If the District Court finds that the case is covered by Explanation (iv), there would be no ques tion of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straight away be entitled to an order of release of the rented premises in her favour.
On the other hand, if the District Court comes to the conclusion that by reason of the omission of Explanation (iv) of the U.P. Act No. 28 of 1976 respondent No. 3 is not entitled to rely on it or that Explanation (iv) is not applicable on the facts of the present case, the application of respondent No. 3 would fail, since it has already been found by the District Court and we do not ' propose to disturb this finding that the appellant would suffer greater hardship by granting of the application than what would be suffered by respondent No. 3 if the application were to be refused.
We accordingly remand the matter to the District Court with no order as to costs.
P.H.P. Appeal allowed.
| IN-Abs | The appellant.company sued Mr. & Mrs. Sequeira for recovery of certain amounts under two contracts of supply of iron ore.
The first contract was signed by Ramesh holder of a power of attorney of Sequeiras and the second contract was signed by Ramesh 's father as the agent of Ramesh.
Under the two contracts Sequeiras were supposed to supply and load iron ore and were liable to pay demurrage in case of delay in loading the ship and were entitled to receive certain despatch money if the loading was made earlier.
Sequeiras filed their counter claims.
The Court did 'not arrive at a definite conclusion about the quantity of ore supplied and left that to be determined in execution proceedings.
The court found that the first contract was binding between the appellant and Sequeiras as it had been ratified by Sequerias and acted upon by the appellant.
The court, however, held that the second contract was not 'binding on Sequeiras as Ramesh had a limited authority and, therefore, he could not constitute his father his attorney for the purposes of executing the second agreement.
The trial Court also found that the appellant had committed breaches of the contract but left the quantum of damages to be determined in execu tion proceedings.
The decree of the .trial Court was sub stantially confirmed in appeal by the Additional Judicial Commissioner.
HELD: 1.
The Judicial Commissioner erred in concentrat ing on only one dictionary meaning of.
the word "exploita tion" used in the power of attorney executed by Sequeiras m favour of Ramesh.
The court, while interpreting a power of attorney, has to construe the document as a .whole m the light of its purpose and surrounding circumstances and the transactions meant to be governed by it.
Practice and custom have also some bearing on the nature and effect of the power of attorney.
The purpose of the powers conferred on the power of attorney have to be ascertained having regard to the need which gave rise to the execution of the docu ment, the practice of the parties and the manner in which parties themselves understood the purpose of the document.
The powers.
which are absolutely necessary and incidental to the execution of the ascertained purposes of the general powers given must be necessarily implied.
Applying the above rules of interpretation the court came to the conclu sion that Ramesh had power to appoint an agent to execute the contract in question and therefore the second .contract was also binding on Sequeiras [454A B, 456A H] Bryant, Powls, and Bryant, Limited vs La Banque De Peuple etc.
@ 177 and 179 and Jonmenjoy Coondoo vs George ,Alder Watson, @ 912 approved.
O.A.P.R.M.A.R. Adaikappa Chettiar vs Thomas Cook & Son (Bankers) Ltd. , distinguished.
The implied powers cannot go beyond the scope of the general object tances do not derrogate from the width of the general power initially conferred of the power of attorney but must necessarily be subordinated to it Specific in to such a case ejusdem generis cannot be applied.
The mode of construing a document and the rules to be applied to extract its meaning correctly depends upon not only the nature and object but also upon the frame, provisions, and language of the documents.
In cases of uncertainty the rule embodied in proviso 2 to section 92 of the Evidence Act which is ap plicable to contracts can be invoked.
452 The ultimate decision of such a matter turns upon the prac tice and particular facts of each case.
[458D P] 3.
The findings arrived at by the Appellate Court that Sequeiras were prevented from performing their part of the contract, owing to the failure of the appellant to provide either sufficient lighting or enough winches to enable due performance of the contract, is unexceptionable.
The Judi cial Commissioner rightly concluded that the company had not discharged its own part of the contract so that it could not claim demurrage or damages.
[458 G H] The court partly allowed the appeal and remanded the matter back to the trial court for determining the liabili ties of the parties in the light of the judgment.
[459E F]
|
iminal Appeal No. 60 of 1954.
Appeal under Article 134(1)(c) of the Constitution of India from the Judgment and order dated the 19th January 1954 of the Calcutta High Court in Criminal Revision No. 865 of 1953 arising out of the Judgment and Order dated the 29th April 1953 of the Court of Third Municipal Magistrate, Calcutta in Case No. 108 A of 1951.
N. C. Chatterji, (section K. Bose and Sukumar Ghose, with him) for the appellant.
G. P. Kar, (A. K. Mukherjee and D. N. Mukherjee, with him) for the respondent.
November 17.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal against the judgment of the High Court of Calcutta affirming the order of the Municipal Magistrate, whereby he dismissed an application filed by the appellant under section 363 of the Calcutta Municipal Act, 1923, hereinafter referred to as the Act, for demolition of certain constructions on the ground that they had been erected without the previous permission of the authorities and in contravention of the prescriptions laid down in the building rules.
The respondent is the owner of house No. 36, Armenian Street, Calcutta.
On 28 10 1950 the Building Inspector of the Corporation discovered that some new masonry structures were being constructed on the fifth storey of that house.
A notice under section 365 of the Act was immediately served on the respondent directing him to stop forthwith further con 997 structions pending an application to the Magistrate under section 363 of the Act.
What followed thereon is graphically described by the learned Chief Justice of the High Court in his order dated 9 4 1954 granting leave to appeal to this Court, as a hide and seek game.
On receipt of the notice, the respondent stopped the work for a few days, and thereby lulled the Building Inspector into the belief that no further constructions would be made.
When the Inspector ceased to inspect the premises daily, the respondent resumed the work, and on 7 11 1950 when the Inspector came again on the scene, he found that the construction was being proceeded with.
A police constable was then posted for watch under section 365 (3) of the Act, and he continued there till 10 11 1950, on which date the respondent wrote to the Corporation that he would not proceed further with the construction.
The police watch was thereupon withdrawn on the respondent paying Rs. 40 being the charges payable therefor.
On 7 12 1950 the Inspector again inspected the premises, and found that the construc tion was being proceeded with, and had a constable posted again for watch.
On 13 12 1950 the appellant lodged a complaint before the Magistrate under section 488 read with Rule 62 of Schedule XVII charging the respondent with constructing two rooms in the fifth storey without obtaining permission.
Section 488(1)(a) enacts that whoever commits any offence by contravening any provisions of any of the sections or rules of the Act mentioned in the first column of the table annexed thereto, shall be punished with fine as specified in the said table.
Rule 62 provides that the erection of a new building shall not be commenced unless and until the Corporation have granted written permission for the execution of the same.
The complaint was heard on 11 4 1951.
The respondent pleaded guilty, and was fined Rs. 200.
While the proceedings under section 488 were pending before the Magistrate, the Corporation would appear to have examined the nature of the constructions put up by the respondent, and found that they contravened Rules 3, 14, 25 and 32 of Schedule XVII, 998 and decided to take action under section 363.
They accordingly issued a notice to the respondent to show cause why action should not be taken under that section.
The respondent appeared by counsel on 13 2 1951, and after hearing him, the appellant decided on 6 3 1951 to move the court for an order under section 363, and the petition out of which the present appeal arises, was actually filed on 4 4 1951.
There was delay in serving the respondent, and after he was actually served which was on 17 9 1951, the case underwent several adjournments, and finally on 29 4 1953 the Magistrate passed an order dismissing the petition.
There was no dispute that the building rules had been contravened.
The Magistrate, however, held that he had a discretion under section 363 whether he should direct demolition, and that this was not a fit case in which an order should be made for demolition, because the constructions being on the fifth storey could not obstruct light and air and thereby inconvenience the neighbours, and there was no complaint from the residents of the locality, and that as the respondent had already been fined in pro ceedings under section 488, an order for demolition would be to penalise him twice over for the same offence.
Against this order, the appellant preferred a revision to the High Court of Calcutta.
That was heard by K. C. Chunder, J. He agreed with the Magistrate that under section 363 the court had a discretion whether it should order demolition or not, and that as the Corporation had taken proceedings under section 488 and was content to have a fine imposed on the respondent for breach of Rule 62, it would be unjust to permit it thereafter to start proceedings under section 363 for the further relief of demolition of the building.
He also commented on the undue ,delay on the part of the Corporation in taking out the application, and took into account the fact that no complaint had been received from the locality.
In the result, he dismissed the revision.
The appellant applied under article 134(1)(c) for leave to appeal to this Court.
Chakravarti, C. J. and 999 section R. Das Gupta, J. who heard this application, considered that two questions of general importance arose on which it was desirable to have the decision of this Court, viz., (1) whether the Corporation was precluded from taking proceedings under section 363 of the Act by reason of its having taken proceedings prior thereto under section 488 of the Act read with Rule 62 of Schedule XVII, and (2) whether the question of inconvenience to neighbours was relevant for the purpose of deciding whether an order for demolition should be made under section 363 of the Act.
They accordingly granted leave under article 134 (1)(c), and that is how the appeal is now before us.
The first question that arises for our determination is whether the present proceedings under section 363 are barred by reason of the application which was filed under section 488.
It is conceded that there is nothing express in the statute enacting such a bar, but it is contended that it is to be implied from the proviso to section 363 that "where the Corporation have instituted proceedings under section 493, no application shall be made under this section".
Admittedly, the appellant instituted no proceedings under section 493; but it is argued that proceedings under section 488 substantially fall within section 493, and that the proviso should therefore be held to be applicable.
Under section 493, if the erection of any new building is commenced without obtaining the writen permission of the Corporation, the owner of the building shall be liable to a fine which may extend up to Rs. 500.
Then, there is a proviso that where an application had been made under section 363, no proceeding shall be instituted under this section.
This corresponds to the proviso to section 363 set out above, and reading the two provisions, it is clear that the proceedings under the two sections are mutually exclusive.
Now, the contention of the respondent is that a prosecution under section 488 for breach of rule 62 of Schedule XVII is, in essence, a prosecution under section 493(a), and that, therefore, the proviso to section 363 becomes applicable.
We are 1000 unable to agree with this contention.
When the Legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided in those sections are not the same, it obviously intends to treat them as distinct, and, therefore, where no question under section 403 of the Code of Criminal Procedure arises, proceedings taken under one section cannot be treated as falling within the other.
The penalty prescribed in section 488 for breach of rule 62 of Schedule XVII is fine up to the limit of Rs. 200, whereas the penalty provided for the same offence under section 493(a) is fine which may extend to Rs. 500.
It will not therefore be in consonance with the intention of the Legislature to hold that proceedings under section 488 are in substance the same as proceedings under section 493, so as to be subject to the disability enacted in the proviso to section 363.
If the intention of the Legislature was that proceedings taken under section 488 read with rule 62 of Schedule XVII should bar proceedings under section 363, it could have said so expressly as it did with reference to proceedings taken under section 493.
To accede to the contention of the respondent would be to read into section 363 limitations which are not to be found there.
We cannot accept such a construction.
It was next argued by learned counsel for the respondent that it was open to the Corporation to have asked for demolition of the building in the proceedings taken by it under section 488, and as it did not ask for it and was content with the imposition of fine, it was precluded from claiming that relief in the present proceedings.
This argument is based on section 536, which is as follows: "When under this Act or under any rule or bylaw made thereunder any person is liable, in respect of any unlawful work, (a) to pay a fine, and (b) to be required to demolish the work, a Magistrate may, in his discretion and subject to the provisions of sections 363, 364 and 493, direct the said person to pay the fine and also to demolish the work".
1001 In his order dated 9 4 1954, the learned Chief Justice expressed a doubt whether the Corporation could apply for a demolition order, when instituting an application under section 488 for breach of Rule 62 of Schedule XVII.
We are inclined to share this doubt.
What Rule 62 prohibits is the erection of a building without permission, and under that Rule, the breach is complete when the erection has commenced, without reference to whether the construction is being carried on or completed.
A question of demolition cannot therefore arise with reference to a breach of Rule 62.
It can arise only when the construction of the building is carried on or completed otherwise than in accordance with the terms of the permission or in breach of any of the provisions of the Act or the rules.
Now, in the table annexed to section 488, while a breach of Rule 62 of Schedule XVII is made punishable with fine which may extend to Rs. 200, there is no similar provision with reference to breach of Rules 3, 14, 25 and 32 of that Schedule.
But there is, instead, a provision that when a direction is asked for under section 363(1) for demolition, an order can be passed imposing fine which may extend to Rs. 250.
Under that section, it should be noted, an application for an order for demolition can be made on three grounds, viz., (1) that the erection of building has been commenced without permission, (2) that it has been carried on or completed otherwise than in accordance with the terms of the permission, or (3) that it has been carried on or completed in breach of the provisions contained in the Act or the rules.
But there is this difference between an application based on ground No. 1 aforesaid and one founded on grounds Nos. 2 and 3, that while a question of demolition cannot arise with reference to the former when the charge is com mencement or the construction without permission and at that stage no question of demolition of, a building necessarily arises, it does arise as regards the latter.
Therefore, when an application is made under section 488, whether an order could be made under section 536 for demolition will depend on the ground on which it is founded.
And, where, as in the 1002 present case, the application was based solely and exclusively on a breach of Rule 62 of Schedule XVII, no order could have been passed for demolition under section 536.
It is immaterial for the present purpose that the building had been completed when the order was passed on 11 4 1951 on the application under section 488, because the power to pass an order under section 536 would depend on what the charge as actually laid in the petition was and not on what it might have been.
But even if the Magistrate had the power under section 536 to order demolition of the building, we cannot hold that the appellant is precluded from asking for such an order under section 363 merely by reason of the fact that the Magistrate had failed to pass such an order, or even that the Corporation did not ask for it in the prior proceedings.
There is no question of the application of any principle of constructive res judicata, and there is nothing in the statute which bars the appellant from claiming relief under section 363.
We cannot therefore uphold the contention that the appellant is precluded in any manner by the prior proceedings taken under section 488 from instituting the present petition under section 363.
In this view, the point for decision is whether the order passed by the Municipal Magistrate and affirmed by the learned Judge in revision is open to attack on the merits.
The respondent contends that the Magistrate has under section 363 a discretion whether he should pass an order for demolition or not, and that this Court should not in appeal interfere with the exercise of that discretion especially when it has been concurred in by the High Court.
Now, the language of section 363 is that the Magistrate may pass an order for demolition of the building, and though the word 'may ' might in some contexts be construed as meaning 'shall ', that is not the sense in which it is used in section 363.
We agree with the respondent that section 363 does not require that when a building is shown to have been erected without permission or completed otherwise than in accordance with the terms of the permission or in breach 1003 of the building rules, an order for its demolition should be made as a matter of course.
In our opinion, it does give the Magistrate a discretion whether he should or should not pass such an order.
That was the construction put in Abdul Samad vs Corporation of Calcutta( ') on section 449 of the Calcutta Municipal Act, (Bengal Act III of 1899) which corresponds to section 363 of the present Act on language which is, so far as the present matter is concerned, the same.
in re enacting the present section in the same terms as section 449 of Bengal Act III of 1899, it must be taken that the legislature has accepted the interpretation put on them in Abdul Samad vs Corporation of Calcutta(1) as correctly representing its intention.
It should accordingly be held that the word 'may ' in section 363 does not mean "shall ', and that the Magistrate has under that section a discretion whether be should pass an order for demolition or not.
Then the question is whether the exercise of that discretion by the courts below is open to review by this Court.
It is a well settled principle that when the legislature entrusts to an authority the power to pass an order in its discretion, an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by an appellate court, unless it can be shown to have been based on some mistake of fact or misapprehension of the principles applicable thereto.
The appellant contends that the orders under appeal are based on mistakes and misapprehensions, and are therefore liable to be reversed, and that contention must now be examined.
The grounds on which the orders of the courts below are based are (1) that there has been considerable delay on the part of the appellant in moving in the matter, (2) that as in the proceedings taken under section 488 the respondent has been fined, an order for demolition was not called for, and (3) that the breach of the building rules has not resulted in any inconvenience to the public, nor has there been any complaint from the residents of the locality about this.
The materials placed before us do not show (1) Cal.
127 1004 that there has been any great delay on the part of the appellant, The learned Judge has stated that the present proceedings for demolition were taken subsequent to the imposition of fine on 11 4 1951 in the proceedings under section 488.
This is a mistake.
The proceedings under section 363 bad been commenced as early as February 1951 when notice was issued to the respondent under the provisions of that section, and the petition was actually filed in court on 4 4 1951.
It is true that the proceedings were pending for nearly two years before the Magistrate, but as observed by the learned Chief Justice, far from the Corporation being responsible for it, it appears to have been the victim of delay on the part of the respondent.
Both the courts below have mainly based their order on the fact that the, Corporation having taken proceedings under section 488 and a fine having been imposed on the respondent, it would be unjust to impose a further penalty for the same offence by way of demolition.
The assumption on which this reasoning rests is that the charge on which the present proceedings have been taken is the same as that on which the petition under section 488 was laid.
But, as already pointed out, that is not correct.
The proceedings under section 488 were taken for erecting a building without permission whereas the present proceedings are taken substantially for breaches of the building rules, which are quite independent of the charge under Rule 62, and the respondent is therefore not punished twice over for the same default.
The learned Judge observes that this was not a fit case for exercising the discretion in favour of the appellant, because in the prior proceedings under section 488, it did not ask for an order for demolition, nor was such an order made by the Magistrate.
That is obviously with reference to section 536 which we have held to be inapplicable to the present case.
Moreover , when that section enacts that the Magistrate could both impose a fine and order demolition of the building, that clearly indicates that the fact that a fine has been imposed should not by itself and with 1005 out more, be taken as sufficient ground for refusing demolition.
The courts below were also influenced by the fact that there was no complaint from the neighbours about the erection of the building.
It must be remembered that the building rules are enacted generally for the benefit of the public, and where those rules have been violated and proceedings are taken for an order for demolition of the building under section 363, what has to be decided is whether the breaches are of a formal or trivial character, in which case the im position of a fine might meet the requirements of the case, or whether they are serious and likely to affect adversely the interests of the public, in which case it would be proper to pass an order for demolition.
Whether there has been a complaint from the public would not as such be material for deciding the question, though if there was one, it would be a piece of evidence in deciding whether the interests of the public have suffered by reason of the breaches.
The position, therefore, is that the orders of the courts below are based on mistakes and misdirections, and cannot be supported.
The conduct of the respondent in adopting a hide and seek attitude in completing the constructions in deliberate defiance of the law calls for severe action.
It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it on payment of fine.
All this would be good justification for making an order for demolition.
But then, it is now nearly five years since the building was completed, and though section 363(2) which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work does not, in terms, apply as the proceedings have been started in time, we do not feel that after the lapse of all this time, an order for demolition is called for in the interests of the public.
We also take into account the fact that the orders in question would not have come before Us in the normal course by way of appeal, 1006 were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and that purpose has been achieved.
On a consideration of all the circumstances, we do not think that this is a fit case in which we should pass an order for demolition.
We should, however, add that we find no justification for the strictures passed on the appellant by the court below.
In the result, the appeal is dismissed.
| IN-Abs | The Corporation of Calcutta is not precluded from taking proceedings under section 363 of the Calcutta Municipal Act, 1923 by reason of its having taken proceedings prior thereto under section 488 of the Act read with Rule 62 of Schedule XVII.
The question of inconvenience to neighbours is not relevant for the purpose of deciding whether an order for demolition should be made under section 363 of the Act.
When the Legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided in those sections are not the same, it obviously intends to treat them as distinct, and, therefore, where no question under section 403 of the Code of Criminal Procedure arises, proceedings taken under one section cannot be treated as falling within the other.
The word. "may" in section 363 of the Act does not mean "shall" and the Magistrate has under that section discretion whether he should pass an order for demolition or not.
It is a well settled principle that when the legislature entrusts to an authority the power to pass an order in its discretion an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by an appellate court, unless it can be shown to have been based on some mistake of facts or misapprehension of the principles applicable thereto.
In the present case, however, the orders of the courts below were based on mistakes and misdirections and therefore could not be supported.
But the Supreme Court did not think this to be a fit case for an order for the demolition of the buildings in view of certain special circumstances, viz, (1) though section, 363(2), which directs that no appli 126 996 cation for demolition shall be instituted after the lapse of five years from the date of the work, did not, in terms, apply as the proceedings had been started in time, it was nearly five years since the building bad been completed and the interests of the public did not call for its demolition, and (2) the appeal came on a certificate granted under article 134(1)(c) with a view to obtaining the decision of the Supreme Court on certain questions of importance.
Abdul Samzad vs Corporation of Calcutta ([1905] I.L.R. , referred to.
|
: Criminal Appeal No. 230 of 1976.
(Appeal by Special Leave from the Judgment and order dated 11.9.1975 of the Punjab & Haryana High Court in Crl.
Appeal No. 392 of .1975 and Murder Reference No. 14/75).
S.K. lain, for the Appellant.
O.P. Sharma, for the Respondent.
Judgment The Judgment of the Court was delivered by P.N. Bhagwati, J.
S. Murtaza Fazal Ali, J. gave a separate Opinion.
BHAGWATI, J.
This appeal, by special leave, raises an interesting question of law relating to the construction of section 235(2) of the Code of Criminal Procedure, 1973.
The appellant was tried before the Sessions Judge, Ludhiana for.committing a double murder, one of his mother and the other of her second husband.
He was represented by a lawyer during the trial and after the evidence was concluded and the arguments were heard, the learned Sessions Judge ad journed the case to 13th February, 1975 for pronouncing the judgment.
It appears that on 13th February, 1975, the judgment was not ready and hence the case was adjourned to 20th February, 1975 and again to 26th February, 1975.
The Roznamcha of the proceedings shows that on 26th February, 1975 the appellant was present without his lawyer and the learned Sessions Judge pronounced the judgment convicting the appellant of the offence under section 302 of the Indian Penal Code and sentenced him to death.
It was common ground that after pronouncing the judgment convicting the appel lant, the learned Sessions Judge did not give the appellant an opportunity to be heard in regard to the sentence to be imposed on him and by one single judgment, convicted the appellant and also sentenced him to death.
The appellant preferred an appeal to the High Court and the case was also referred to the High Court for confirmation of the death sentence.
The High Court agreed with the view taken by the learned Sessions Judge and confirmed the conviction as also the sentence of death.
The appellant thereupon preferred the present appeal with special leave obtained from this Court.
The appeal is limited to the question of sentence and the principal argument advanced on behalf of the appellant is that in not giving an opportunity to the appellant to be heard in regard to the sentence to 232 be imposed on him after the judgment was pronounced convict ing him, the learned Sessions Judge committed a breach of section 235 (2) of the Code of Criminal Procedure, 1973 and that vitiated the sentence of death imposed on the appel lant.
This argument is a substantial one and it rests on the true interpretation of section 235(2).
This is a new provision and it occurs in section 235 of the Code of Crimi nal Procedure, 1973 which reads as follows: "235 (,1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
" This provision is clear and explicit and does not admit of any doubt.
It requires that in every trial before a court of sessions, there must first be a decision as to the guilt of the accused.
The court must, in the first instance, deliver a judgment convicting or acquitting the accused.
If the accused is acquitted, no further question arises.
But if he is convicted, then the court has to "hear the accused on the question of sentence, and then pass sentence on him according to law".
When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it ' is only after hearing him that the court can proceed to pass the sentence.
This new provision in section 235(2) is in consonance with the modern trends in penology and sentencing proce dures.
There was no such provision in the old Code.
Under the old Code, whatever the accused wished to submit in regard to the sentence had to be stated by him before the arguments concluded and the judgment was delivered.
There was no separate stage for being heard in regard to sentence.
The accused had to produce material and make his submissions in regard to sentence on the assumption that he was ulti mately going to be convicted.
This was most unsatisfacto ry.
The legislature, therefore, decided that it is only when the accused is convicted that the question of sentence should come up for consideration and at that stage, an opportunity should be given to the accused to be heard in regard to the sentence.
Moreover, it was 'realised that sentencing.
is an important stage in the process of adminis tration of criminal justice as important as the adjudica tion of guilt and it should not be consigned to a subsidi ary position as if it were a matter of not much consequence.
It should be a matter of some anxiety to the court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the court.
In most of the countries of the world, the problem of sen tencing the criminal offender is receiving increasing atten tion and that is largely because of the rapidly changing attitude towards crime and criminal.
There is in many of the countries, intensive study of the sociology of crime 233 and that has shifted the focus from the crime to the crimi nal, leading to a widening of the objectives of sentencing and, simultaneously, of the range of sentencing procedures.
Today, more than ever before, sentencing is becoming a delicate task, requiring an inter disciplinary approach and calling for skills and talents vary much different from those ordinarily expected of lawyers.
This was pointed out in clear and emphatic words by Mr. Justice Frankfurter: "I myself think that the bench we lawyers who become judges are not very competent, are not qualified by experience, to impose sentences where any discretion is to be exercised.
I d9 not think it is in the domain of the training of lawyers to know what to do with a fellow after you find out he is a thief.
I do not think legal training gives you any special competence.
I, myself, hope that one of these days, and before long, we will divide the functions of criminal justice.
I think the lawyers are people who are competent to ascertain whether or not a crime has been committed.
The whole scheme of common law judicial machinery the rule of evidence, the ascertainment of what is relevant and what is irrelevant and what is fair, the whole question of whether you can introduce prior crimes in order to prove intent I think lawyers are peculiarly fitted for that task.
But all the questions that follow upon ascertainment of guilt, I think require very different and much more diversified talents than the lawyers and judges are normally likely to posses.
" The reason is that a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record ', if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, society and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possi bility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence.
These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and there fore, the legislature felt that, for this purpose, a separate stage should be provided after convic tion when the court can bear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused.
Hence the new provision in section 235(2).
But, on the interpretation of section 235(2), another question arises and that is, what is the meaning and content of the words "hear the accused".
Does it mean merely that the accused has to be given an opportunity to make his submissions or he can also produce 17 1003 SCI/76 234 material bearing on sentence which has so far not come before the Court? Can he lead further evidence relating to the question of sentence or is the hearing to be confined only to.
oral submissions ? That depends on the interpreta tion to be placed on the word 'hear '. 'Now, the word 'hear ' has no fixed rigid connotation.
It can bear either of the two rival meanings depending on the context in which it occurs.
It is a well settled rule of interpretation, hal lowed by time and sanctified by authority, that the meaning of an ordinary word is to be found not so much in strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be attained.
It was Mr. Justice Holmes who pointed out in his inimitable style that "a word 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".
Here, in this provision, the word 'hear ' has been used to give an opportunity to the accused to place before the court various circumstances bearing on the sen tence to be passed against him.
Modern penology, as pointed out by this Court in Ediga Annamma vs State of Andhra Pradesh(1) ' "regards crime and criminal as equally material when the right sentence has to be picked out".
It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element.
It is necessary for this purpose that "facts of a social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined".
We have set out large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full and adequate material relating to these factors would have to be brought before the court in order to enable the court to pass an appropriate sen tence.
This material may be placed before the court by means of affidavits, but if either party disputes the cor rectness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bring ing such material on record.
The hearing on the question of sentence, would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various fac tors beating on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court.
This was also the opinion expressed by the Law Commission in its Forty Eighth Report where it was stated that "the taking of evidence as to the circum stances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to cooper ate in the process." The Law Commission strongly recommend ed that 'if a request is made in that behalf bY either the prosecution or the accused, an opportunity for leading "evidence on the question" of sentence "should be given".
We are, therefore, of the view that the hearing.
(1) ; 235 contemplated by section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors beating on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.
Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings.
The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings.
Now there can be no doubt that in the present case the requirement of section 235(2) was not complied with, inas much as no opportunity Was given to the appellant, after recording his conviction, to produce material and make submissions in regard to the sentence to be imposed on him.
Since the appellant was.
convicted under section 302 of the Indian Penal Code, only two options were available to the Sessions Court in the matter of sentencing the appellant: either to sentence him to death or to impose on him sentence of imprisonment for life.
It the Sessions Court had, in stead of sentencing him to death, imposed on him sentence of life imprisonment, the appellant could have made no griev ance of the breach of the provision of section 235(2), because, even after hearing the appellant, the Sessions Court would not have passed a sentence more favourable to the appellant 'than the sentence of life imprisonment.
In such a case, even if any complaint of violation of the requirement of section 235 (2) were made, 'it would not have been entertained by the appellate court as it would have been meaningless and futile.
But, in the _present case, the Sessions Court chose to inflict death sentence on the appel lant and the possibility cannot be ruled out that if the accused had been given opportunity to produce material and make submissions on the question of sentence, as contemplat ed by section 235(2), he might have been able to persuade the Sessions Court to impose the lesser penalty of life imprisonment.
The breach of the mandatory requirement of section 235(2) cannot, in the circumstances, be ignored as inconsequential and it must be held to vitiate the sentence of death imposed by the Sessions Court.
It was, however, contended on behalf of the State that non compliance with the mandatory requirement of section 235(2) was a mere irregularity curable under section 465 of the Code of Criminal Procedure.
1973 as no failure of jus tice was occasioned by it and the trial could not on that account be held to be bad.
The State leaned heavily on the fact that the appellant did not insist on his right to be heard under section 235(2) before the Sessions Court, nor did he make any complaint before the High Court that the Sessions Court had committed a breach of section 235(2) and this omission on the part of the appellant, contended the State, showed that he had nothing to say in regard to the question of sentence and consequently, no prejudice was suffered by him as a result of non compliance with section 235(2).
This contention is, in my opinion, without force and must be rejected.
It must be remembered that section 235(2) is a new provision intro 236 duced for the first time in the Code of Criminal Procedure, and 1973 and it is quite possible that many lawyers and judges might be unaware of it.
Before the Sessions Court, the appellant was not represented by a lawyer at the time when the judgment was pronounced and obviously he could not be aware of this new stage in the trial provided by section 235(2).
Even the Sessions Judge was not aware of it, for it is reasonable to assume that if he had been aware, he would have informed the appellant about his right to be heard in regard to the sentence and given him an opportunity to be heard.
It is unfortunate that in our country there is no system of continuing education for judges so that judges can remain fully informed about the latest developments in the law and acquire familiarity with modern methods and tech niques of judicial decision making.
The world is changing fast and in our own country, vast social and economic changes are taking place.
There is a revolution of rising expectation amongst millions of human beings who have so far been consigned to a life of abject poverty, hunger .and destitution.
Law has, for the first time, adopted a posi tive approach and come out openly in the service of the weaker sections of the community.
It has ceased to be merely an instrument providing a framework of freedom in which men may work out their destinies.
It has acquired a new dimension, a dynamic activism and it is now directed towards achieving socio economic justice which encompasses not merely a few privileged classes but the large masses of our people who have so far been denied freedom and equality social as well as economic and who have nothing to hope for and to live for.
Law strives to give them social and economic justice and it has, therefore, necessarily to be weighted in favour of the weak and the exposed.
This is the new law which judges are now called upon to administer and it is, therefore, essential that they should receive proper training which would bring about an orientation in their approach and outlook, stimulate sympathies in them for the vulnerable sections of the community and inject a new awareness and sense of public commitment in them.
They should also be educated in the new trends in penology and sentencing procedures so that they may learn to use penal law as a tool for reforming and rehabilitating criminals and smoothening out the uneven texture of the social fabric and not as a weapon, fashioned by law, for protecting and per petuating the hegemony of one class over the other.
Be that as it may, it is clear that the learned Sessions Judge was not aware of the provision in section 235(2) and so also was the lawyer of the appellant in the High Court unaware of it.
No inference can, therefore, be drawn from the omission of the appellant to raise this point, that he had nothing to Say in regard to the sentence and that consequently no prejudice was caused to him.
So far as section 465 of the Code of Criminal Procedure, 1973 is concerned, I do not think it can avail the State in the present ease.
In the first place, non compliance with the requirement of section 235(2) cannot be described as mere irregularity in the course of the trial curable under section 465.
It is much more serious.
It amounts to by passing an important stage of the trial and omitting it altogether, so that the trial cannot be aid to be that contemplated in the Code.
It 237 is a different kind of trial conducted in a manner different from that prescribed by the Code.
This deviation consti tutes disobedience to an express provision of the Code as to the mode of trial, and as pointed out by the Judicial Com mittee of the Privy Council in Subramania Iyer vs King Emperor(1), such a deviation cannot be regarded as a mere irregularity.
It goes to the root of the matters and the resulting illegality is of such a character that it vitiates the sentence.
Vide Pulukurti Kotayya vs King Emperor(2) and Magga & Anr.
vs State of Rajasthan.(3) Secondly, when no opportunity has been given to the appellant to produce material and make submissions in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit.
Section 465 cannot, in the circumstances, have any application in a case like the present.
I accordingly allow the appeal and whilst not interfer ing with the conviction of the appellant under section 302 of the Indian Penal Code, set aside the sentence of death and remand the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the appellant to be heard in regard to the question of sentence in accordance with the provision of section 235 (2) as interpreted by me.
FAZAL ALI, J. I entirely agree with the judgment pro posed by my learned brother Bhagwati, J., and I am at one with the views expressed by him in his judgment, but I would like to add a few lines of my own to highlight some impor tant aspects of the question involved in this appeal.
In this appeal by special leave which is confined only to the question of sentence an interesting question of law arises as to the interpretation of the provisions of section 235(2) of the Code of Criminal Procedure, 1973 hereniafter after referred to as 'the 1973 Code '.
In the light of the arguments advanced before us by the parties the question may be framed thus: "Does the non compliance with the provi sions of section 235(2) of the 1973 Code vitiate the sentence passed by the Court?" In order to answer this question it may be necessary to trace the historical background and the social setting under which section 235(2) was inserted for the first time in the 1973 Code.
It would appear that the 1973 Code was based on a good deal of research done by several authorities includ ing the Law Commission which made several recommendations for revolutionary changes in the provisions of the previous Code so as to make the 1973 Code in consonance with the growing needs of the society and in order to solve the social problems of the people.
Apart from introducing a number of changes in the procedure, new rights and powers were conferred on the Courts or sometimes even on the ac cused.
For instance, a provision for anticipatory bail was introduced to enable the, accused to be saved from (1) (1901) 28 I.A. 257.
(2) (1947) 74 I.A. 65.
(3) ; at pp.
983 984. 238 unnecessary harassment.
In its 48th Report the Law Commis sion,.
while recommending the insertion of a provision which would enable the accused to make a representation against the sentence to be imposed after the judgment of conviction had been passed, observed as follows: "It is now being increasingly recognised that a rational and consistent sentencing policy re quires the removal of several deficiencies in the present system.
One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.
" "We are of the view that the taking of evi dence as to the circumstances relevant to sentenc ing should be encouraged, and both the prosecution and the accused should be allowed to co operate in the process.
" In the aims and objects of 1973 Code which have been given clause by clause, a reference to this particular provision has been made thus; "If the judgment is one of conviction, the accused will be given an opportunity to make his representation, if any, on the punishment proposed to be awarded and such representation shall be taken into consideration before imposing the sen tence.
This last provision has been made because it may happen that the accused may have some grounds to urge for giving him consideration in regard to the sentence such as that he is the bread winner of the family of which the Court may not be made aware during the trial.
" Para 6(d) of the statement of objects and reasons of the 1973 Code ' runs thus: "6.
Some of the more important changes in tended to provide relief to the poorer sections of the community are : "(d) the accused will be given an opportunity to make representation against the punishment before it is imposed. ' ' The statement of objects and reasons further indicates that the recommendations of the Law Commission were examined carefully keeping in view, among others, the principle that "an accused person should get a fair trial in accordance with the accepted principles of natural justice".
In these circumstances, therefore, I feel that the provisions of section 235 (2) are very salutary and contain one of the cardinal features of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him.
239 Section 235 of the 1973 Code runs thus: "235(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
" A perusal of this section clearly reveals that the object of the 1973 Code was to split up the sessions trial or the warrant trial, where also a similar provision exists, into two integral parts (i) the stage which culminates in the passing of the judgment of conviction or acquittal; and (ii) the stage which on conviction results in imposition of sentence on the accused.
Both these parts are absolutely fundamental and non compliance with any of the provisions would undoubtedly vitiate the final order passed by the Court.
The two provisions do not amount merely to a ritual formula or an exercise in futility but have a very sound and definite purpose to achieve.
Section 235 (2) of the 1973 Code enjoins on the Court that after passing a judgment of conviction the Court should stay its hands and hear the accused on the question of sentence before passing the sentence in accordance with the law.
This obviously postulates that the accused must be given an opportunity of making his representation only regarding the question of sentence and for this purpose he may be allowed to place such materials as he may think fit but which may have bear ing only on the question of sentence.
The statute, in my view, seeks to achieve a socio economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society.
The modern concept of punishment and penology has undergone a vital transformation and the criminal is now not looked upon as a grave menace to the society which should be got rid of but is a diseased person suffering from mental malady or psychological frus tration due to subconscious reactions and is, therefore, to be cured and corrected rather than to be killed or de stroyed.
There may be a number of circumstances of which the Court may not be aware and which may be taken into consideration by the Court while awarding the sentence, particularly a sentence of death, as in the instant case.
It will be difficult to lay down any hard and fast rule, but the statement of objects and reasons of the 1973 Code itself gives a clear illustration.
It refers to an instance where the accused is the sole bread earner of the family.
In such a case if the sentence of death is passed and executed it amounts not only to a physical effacement of the criminal but also a complete socio economic destruction of the family which he leaves behind.
Similarly there may be cases, where, after the offence and during the trial, the accused may have developed some virulent disease or some mental infirmity, which may be an important factor to be taken into consideration while passing the sentence of death.
It was for these reasons that section 235(2) of the 1973 Code was enshrined in the Code for the purpose of making the Court aware of these circumstances so that even if the highest penalty of 240 death is passed on the accused he does not have a grievance that he was not heard on his personal, social and domestic circumstances before the sentence was given.
My learned brother has very rightly pointed out that our independence has led to the framing of numerous laws on various social concepts and a proper machinery must be evolved to educate not only the people regarding the laws which have been made for their benefit but also the Courts, most of whom are not aware of some of the recent and the new provisions.
It is, therefore, the prime need of the hour to set up Training Institutes to impart the new judicial re cruits or even to serving judges with the changing trends of judicial thoughts and the new ideas which the new judi cial approach has imbibed over the years as a result of the influence of new circumstances that have come into exist ence.
The next question that arises for consideration is whether noncompliance with section 235(2) is merely an irregular ity which can be cured by section 465 or it is an illegality which vitiates the sentence.
Having regard to the object and the setting in which the new provision of section 235(2) was inserted in the 1973 Code there can be no doubt that it is one of the most fundamental part of the criminal procedure and non compliance thereof will ex facie vitiate the order.
Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this statutory provision, because the accused has been completely deprived of an opportunity to represent to the Court regarding the proposed sentence and which manifestly results in a serious failure of justice.
There is abundant authority for this proposition to which reference has been made by my learned brother.
The last point to be considered is the extent and import of the word "hear" used in section 235(2) of the 1973 Code.
Does it indicate, that the accused should enter into a fresh trial by producing oral and documentary evidence on the question of the sentence which naturally will result in further delay of the trial? The Parliament does not appear to have intended that the accused should adopt dilatory tactics under the cover of this new provision but contem plated that a short and simple opportunity has to be given to the accused to place materials if necessary by leading evidence before the Court bearing on the question of sen tence and a consequent opportunity to the prosecution to rebut those materials.
The Law Commission was fully aware of this anomaly and it accordingly suggested thus: "We are aware that a provision for an oppor tunity to give evidence in this .respect may necessitate an adjournment; and to avoid delay adjournment, for the purpose should, ordinarily be for not more than 14 days.
It may be so provided in the relevant clause.
" 241 It may not be practicable to keep up to the time limit suggested by the Law Commission with mathematical accuracy but the Courts must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed.
I, therefore, agree with the order of my learned Bhag wati, J., that the appeal should be allowed on the question of the sentence and the, matter should be sent back to the Trial Court for giving an opportunity to the accused to make a representation regarding the sentence proposed.
V.P.S. Appeal allowed.
| IN-Abs | The appellant was convicted by the Sessions Court under section 302, IPC, and sentenced to death.
On the date of the judgment his advocate was not present.
The trial court did not give the accused an opportunity to be.
heard in regard to the sentence as required by section 235(2), Cr.P.C., 1973.
The appellant also did not insist on his right to be heard.
The conviction and sentence.
were, confirmed by the High Court.
Even in the High Court the accused did not complain that the trial court had committed a breach of section 235(2).
On the question whether the sentence is vitiated because of the violation .of section 235(2), HELD: The matter should be remanded to.
the trial court for giving an opportunity to the appellant on the question of sentence.
Per Bhagwati, J: (1) Under section 235(1) the court must, in the first instance, deliver a judgment convicting or acquit ting the accused.
If the accused is acquitted, no further question arises.
If the accused is convicted, at that stage, he must be given an opportunity to be heard in regard to the sentence, and it is only after hearing him that the court can pass sentence.
[232 D E] (2) Section 235(2) is a new provision in consonance with the modern trends in penology and sentencing procedures.
Sentencing is an important stage in the process of adminis tration of criminal justice, and should not be consigned to a subsidiary position.
Many factors have to be considered before a proper sentence is passed such as the nature of the offence; the circumstances extenuating or aggravating of the offence; the prior criminal record, if any, of the offender; his age; his record of employment; his background with reference to education; home life.
sobriety and social adjustment; his emotional and mental condition; the pros pects for his rehabilitation; the possibility of his return to a normal life in the community; the possibility of treat ment or training Of the offender; the possibility that the sentence may Serve as a deterrent to crime by the offender or by others and the current community need, if any for such a deterrent in respect to the particular type of of fence.
The material relating to these factors may be placed before the court by means of affidavits.
The hearing contem plated by section 235(2) is not confined merely to hearing oral submissions, but .it is also intended to give an opportunity to the prosecution and the accused to place.
before the court facts and material relating to the various factors bearing on the question of sentence, and if they are con tested by the other side, then to produce evidence for the purpose of establishing those factors.
Otherwise, the hearing would be devoid of meaning and content.
The Court must however be vigilant to see that this hearing on the question of sentence is not abused and turned into an in strument for unduly protracting 1he proceedings.
[232 E; G A B] Ediga Anammo vs State of Andhra Pradesh ; referred to.
(3) If the trial court had, instead of sentencing the appellant to death, imposed on him the sentence of the imprisonment, he would not be, aggrieved by the breach of section 235(2 ), because, even after hearing the appellant, the. trial court could not have passed a more favourable sen tence.
But the trial court imposed death sentence and the possibility cannot be ruled out that if the 230 appellant has been given an opportunity to produce material and make submissions on the question of sentence, he might have been able to persuade, the trial court to impose the lesser penalty.
[235 D E] (4) Since the section is a new provision it is quite possible that many lawyers and judges might be unaware of it.
In the present case obviously the trial court as well as the appellant 's advocate in the High Court were aware of it.
No inference can, therefore, be drawn against the appellant that he had nothing to say from his omission to raise this point in the High Court.
[236 A] (5)(a) Non compliance with the requirement of the sec tion cannot be described as a mere irregularity curable under section 465.
It amounts to by_passing an important stage of the trial so that the trial cannot be said to be that contemplated by the Code.
Such deviation constitutes diso bedience of an express provision of the Code as to the mode of trial and hence cannot be regarded as a mere irregulari ty.
[236 H] Subramania Iyer vs King Emperor (1901) 28 I.A. 257 referred to.
(b) The; violation goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence.
[237 B] Pulukuri Kotayya vs King Emperor, (1947) 74 I.A. 65 and Magga vs State of Rajasthan, ; referred to.
(c) When no opportunity has been given to the appellant in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit and section 465 cannot have any application.
[137 B] Per Fazal Ali J. (1) The 48th Report of the Law Commis sion and the statement of objects and reasons of the 1973 Code of Criminal Procedure show that section 235(2) is a very salutary provision.
It contains one of the cardinal fea tures of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him.
It seeks to achieve a socio econonmic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society.
Section 235 is split up into two inte gral parts, (a) the stage which culminates in the passing of the judgment of conviction or acquittal; and (b) the stage which, on conviction, results in imposition of sentence on the accused.
Both these parts are absolutely fundamental and non compliance with any of the provisions would undoubt edly vitiate the final order passed by the Court.
Section 235(2) enjoins on the Court to stay its hands after passing a judgment oF conviction and hear the accused on the ques tion of sentence before passing sentence.
[238 H; 239 E; C] (2) There may lye a number of circumstances of which the Court may not be aware but which may be taken into consider ation by the court while awarding the sentence, particularly a sentence of death.
The accused must be given an opportu nity of making his representation and placing such materials which have a bearing on the question of sentence.
Parlia ment has not intended that the accused should adopt dilatory tactics under the cover of this new provision but contem plated that a short and simple opportunity has to be given to the accused to place materials bearing on the question of sentence, if necessary by leading evidence, before the .Court, and a consequent opportunity to the prosecution to rebut those materials.
The Court must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed.
[240 F G] (3) Non compliance with the section is not a mere irreg ularity which can be cured by section 465 of the Code.
It is an illegality which vitiates the sentence.
Having regard to the object and the setting in which the new provision was in serted, there can be no doubt that it is one of the most fundamental parts of criminal procedure and non compliance thereof will ex facie vitiate the order.
231 Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this provision, since the accused has been completely deprived of an opportunity to represent to the Court regarding the proposed sentence and this manifest ly results in a serious failure of justice.
[240 B C] [Both the learned Judges indicated that there must be a system of training judges in the application of socio eco nomic laws and in modern methods and techniques of decision making and sentencing procedures]
|
Criminal Appeal No. 203 1976.
358 (Appeal by Special Leave from the Judgment and Order dated 4 2 1976 of the Patna High Court in Crl.
Peti tion No. 441/76.) A.B. Sinha and Pramod Swarup, for the appellant.
S.N. Jha and U.P. Singh, for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
There is a club in Patna called Bankipore Club.
The appellant is the Honorary Secretary of that Club.
It appears that at about 10.25 p.m. on 31st December, 1975 when the New Year eve was being celebrated at the Club, a raid was carried out by the Assistant Commissioner of Ex cise, Inspector of Excise and SubInspector (Excise) and it was found that two women and five men were singing and dancing in the club premises.
The Excise Inspector filed a complaint against the appellant on 2nd January, 1976 charg ing him with having committed offences under Section 54(1)(a) and Section 57 (c) of the Bihar and Orissa Excise Act 1915.
The allegations on the basis of which the complaint was filed are material and we may set them out in extenso: "A Cabaret dance with women was in progress at Banki pore Club, Patna.
Two women and five men were singing and dancing.
This dance was being performed inside the premises of the Bankipore Club, Patna before a large gather ing of men and women.
I asked Dr. Sharda Prasad Singh, Honorary Secretary and his Manager Sri Banke Bihari Prasad Sinha to show the permission obtained from the District Magistrate or from any other authori ty for organising the Cabaret dance because licence vending 'Off ' foreign liquor is given to Bankipore Club in form 2.
The validity period of licence is from 1 4 75 to 31 3 1976 and under Section 25 (2), conducting of Cabaret dances without obtaining the prior permission from any proper authority is ille gal.
Dr. Sharda Prasad Singh who is Honorary Secretary of Patna Bankipore Club did not show any permission of the District Magis trate or of any other authority for conducting the Cabaret and he said that he had not ob tained any such permission.
Therefore, Dr. Sharda Prasad Singh, Honorary Secretary is guilty of the aforesaid.
offence.
It is therefore, prayed that Dr. Sharda Prasad Singh, Honorary Secretary be prosecuted in a Court of law for violating Section 54(a) and Section 57(c) of the Excise Act for which I have been authorised to submit charge sheet to him by the District Magistrate, Patna".
These allegations according to the appellant did not con stitute any offence and hence the appellant filed an appli cation in the High Court of Patna under Section 482 of the Code of Criminal Procedure for quashing the order passed by the Sub Divisional Magistrate, Patna taking cognizance of the offences charged against the appellant.
The 359 High Court by an order dated 4th February, 1976 summarily rejected the application.
The appellant thereupon preferred an application to the High Court for leave to appeal to this Court, but this application was also rejected by the High Court on the ground that the allegations set out in the complaint made out a prima facie case against the appellant.
This led to the filing of the present appeal with special leave obtained from this Court.
It is now settled law that where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magis trate taking cognizance of the offence.
The question which, therefore, arises for consideration is whether the allega tions set out in the complaint constitute any offence against the appellant.
The offences charged against the appellant are under Section 54(1)(a) and Section 57 (c) of the Act.
Section 54(1) (a) provides that if any licensed vendor or any person in his employ and acting on his behalf, in contravention of Section 25, employs or permits to be employed, in any part of his licensed premises referred to in that section any person under the age of 18 years or any women, he shall be liable to fine which may extend to Rs.500/ .
It is an essential ingredient of this offence that the licensed vendor should employ or permit to be employed any women in any part of his licensed premises in contravention of Section 25.
Now there can be no doubt that the Bankipore Club was a licensed vendor since it held an "OFF" licence in Form No. 2 given in the Bihar and Orissa Excise Rules.
We will also assume for the purpose of argu ment that the place where the cabaret was going on was a part of the licensed premises.
But in order that the al leged cabaret should constitute an offence under Section 54(1) (a), it was necessary that the women who were perform ing the cabaret should be employed or permitted to be em ployed by the Club and moreover that should in contravention of Section 25.
Section 25.
sub section (2) provides that no person who is licensed to sell foreign liquor for con sumption on his premises shall, without the previous writ ten permission of the Board, during the hours in which such premises are kept open for business, employ or permit to be employed, either with or without any remuneration, any woman, in any part of such premises in which such liquor is consumed by th.e public.
It will be seen that this provi sion also comes into play only when a woman is employed or permitted to be employed by a person licensed to sell for eign liquor.
Moreover, the employment of the woman should be "in any part of such premises in which such liquor is consumed by the public.
" It is therefore, obvious that there could be no offence under Section 54(1)(a) read with Section 25(2) unless it could be shown by the prosecution that the women who were performing the cabaret were employed or permitted to be employed by the Club and they were performing the cabaret in a part of the club premises in which liquor was being consumed: by the public.
We may point out that it was contended on behalf of the appellant that subsection (2) of Section 25 can have no application in case of a person who is holding an "OFF" licence as distinct from an "ON AND OFF" licence in form No. 3 and since the appellant in the present case was 7 1546 SCI/76 360 holding an "OFF" licence, he could not be guilty of contra vention of Section 25, sub sect/on (2) and hence no question of offence under Section 54(1)(a) could arise.
But we will assume for the purpose of argument that the appellant was covered by Section 25, subsection (2) and he was bound to obey the prohibition contained in that sub section.
But even so we find that the two essential ingredients of the offence under Section 54(1)(a) read with Section 25 sub section (2) were not even alleged in the complaint.
The complaint did not aver that either of the two women who were performing the cabaret was employed or permitted to be employed by the club or that liquor was being consumed by the public in that part of the club in which the cabaret was being performed.
No offence under Section 54(1)(a) could in the circumstances be said to have been committed on the allegations contained in the complaint.
Equally, it is difficult to see how the allegations contained in the complaint could be said to constitute an offence under Section 57(c) That section provides that if any holder of a licence granted under the Act or any person in his employ or acting on his behalf wilfully does any act in breach of the condition of the licence for which a penalty is not prescribed elsewhere in the Act, he shall be liable to fine which may extend to Rs.500/ .
The com plaint does not allege as to which condition of the licence was broken by the club or the appellant in allowing a caba ret to be performed in the club premises.
Nor could the learned counsel appearing on behalf of the State point out any such condition of the licence.
The allegations con tained in the complaint manifestly did not constitute an offence under Section 57(c).
This was, therefore, clearly a case where the allega tions contained in the complaint did not constitute any offence and the Sub Divisional Magistrate was in error in taking cognizance of it.
The High Court in the circum stances ought not to have rejected the application of the appellant for quashing the order of the Sub Divisional Magistrate.
We accordingly allow the appeal, set aside the order of the High Court and quash the proceedings in Case No. 2(2) 76 Trial No. 285/76 pending in the Court in Mr. S.S.P. Yadav, Executive Magistrate, Sadar Patna.
S.R. Appeal allowed.
| IN-Abs | Employing or permitting to employ any person under the age of 18 years or any woman in any part of the licensed premises and in contravention of section 25 constitutes an of fence section 54(1)(a) of the Bihar and Orissa Excise Act 1915.
Under section 25(2) it is an offence when a woman is employed or permitted to be employed, by a person licensed to sell foreign liquor, and the employment of such woman should be in any part of the premises in which such liquor is consumed by the public.
Section 57(c) of the Act provides a penal fine upto Rs.500/ for an action done by a licensed holder wilfully in breach of the conditions of the license for which no penalty is prescribed elsewhere in the Act.
On a complaint from the Assistant Commissioner, Excise that the appellant at the time of the raid on the New Year Eve did not have any permission of the competent authority for conducting a cabaret dance in the premises of Bankipore Club, Patna (admittedly the holder of "OFF ' foreign liquor licence), the SubDivisional Magistrate, Patna took cogni zance of the offences complained, namely, violation of section 54(1)(a) read with section 25(a) and section 57(c) of the Bihar and Orissa Excise Act 1915.
A revision filed under section 482 of the Criminal Procedure Code 1973 on the ground that the allegations in the complaint did not constitute any offence warranting the cognizance was dismissed in limine.
On appeal by special leave to this Court, HELD: Where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is compe tent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure 1973 to quash the order passed by the Magistrate taking cognizance of the offence.
[359B] The instant case was clearly one where the allegations contained in the complaint did not constitute any offence and the Sub Divisional Magistrate was in error in taking cognizance of it and the High Court also ought not to have, in the circumstances, rejected the application of the appellant for quashing the order of the Sub Divisional Magistrate.
[360E] No offence under section 54(1)(a) could be said to have been committed on the allegations contained in the complaint in the absence of specific allegation of the two essential ingredients of the offence under section 54(1)(a) read with section 25(2) and also for want of an averment that either of the two women who were performing the cabaret was employed or permitted to be employed by the Club or that liquor was being consumed by the public in the part of the Club in which the cabaret was being performed.
[359D F] The allegation contained in the complaint could not be said to constitute an offence under section 57(c), in the absence of an allegation as to which condition of the licence was broken by the Club or the appellant in allowing a cabaret to be performed in the Club premises and more so, when no such condition in the licence itself could be pointed out on behalf of the State.
[360C D]
|
il Appeal No,.
1084 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 6th September, 1976 of the Delhi High Court in C.R. No. 390/76 S.L. Bhatia and H.K. Puri for the Appellants.
Pogeshwar Prasad and (Miss) Rani Arora and Meera Bali for Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
This appeal by special leave raises a question of some interest and importance for decision.
The question is whether the provisions of the Slum Areas (Im provement and Clearance) Act, 96 of 1956, override those of the Delhi Rent Control Act, 59 of 1958.
If they do, no person can institute any suit or proceeding for the eviction of a tenant from any building or land in a slum area without the previous permission in writing of the competent authori ty.
For the sake of brevity we will refer to these two enactments as the "Slum Clearance Act" and the "Delhi Rent Act" respectively.
The respondent is a government servant employed in the Railway Ministry (Railway Board) and was in that capacity occupying quarters allotted to him by the Government at Nanakpura, New Delhi.
By a letter dated December 24, 1975 the Assistant Director of Estates called upon the respondent to vacate the quarters on or before December 31, 1975 on the ground that he owned a residential house and was, therefore, liable to vacate the premises allotted to.
him by the Gov ernment.
The respondent was paying to the Government a monthly rent of Rs. 65.05 but since he did not vacate the premises as required, the Government started charging him after January 1, 1976 a monthly rent of Rs. 509.50 at the market rate.
The respondent owns a house bearing No. 5014, Ward No. XII, at Roshanara Road, New Delhi.
A part of that house is in the occupation of the appellants at a monthly rent of Rs. 6.25.
On being asked to vacate the official quarters, the respondent gave to the appellants a notice to quit and followed it up by filing an application for eviction against them under section 14A of the Delhi Rent Act.
On March 12, 1976 the appellants filed before the Rent Controllor 11 1546 SC1/76 424 an affidavit under section 25B(4) of the Delhi Rent Act, setting out the grounds on which they sought to contest the applica tion for eviction and asking for leave to contest it.
One of such grounds was that the application was not maintain able since the respondent had not obtained permission of the competent authority under section 19 of the Slum Clearance Act, the house being situated in a slum area.
By his order dated April 28, 1976 the Rent Controller rejected the application of the appellants for leave to contest the ejectment appli cation filed by the respondent.
As a sequiter, the Rent Controller passed an order on the same date stating that since the appellants ' application for leave to contest the ejectment application was rejected, respondent was enti tled to a decree for eviction.
The appellants were asked to hand over vacant possession of the premises to the respond ent within two months of the order.
Aggrieved by the aforesaid decision, the appellants filed Civil Revision Application No. 390 of 1976 in the Delhi High Court, under the proviso to section 25B(8) of the Delhi Rent Act.
By reason of section 25B(8), no appeal or second appeal lies against an order for the recovery of possession of any premises made by the Rent Controller in accordance with the procedure specified in section 25B. The proviso confers power on the High Court, for the purposes of satisfying itself that an order made by the Rent Controller under section 25B is according to law, to call for the record of the case and pass such order in respect thereto as it thinks fit.
The revision application was heard by a learned single Judge of the High Court who, following his own earlier judgment in Civil Revision Application No. 280 of 1976, dismissed it, giving rise to this appeal.
A question was raised before the High Court as to wheth er at the relevant time the respondent was in occupation of the premises allotted to him by the Government, but it was not disputed before us that he was in occupation of the premises allotted to him by the Government when he filed the present proceedings for eviction of the appellants.
Thus, the only question which arises before us is whether, the premises being situated in the slum area, the application for eviction filed by the respondent is not maintainable for the reason that before filing it he had not obtained permis sion of the competent authority as required by section 19(1) of the Slum Clearance Act.
The landlord tenant relationship in Delhi was governed formerly by the Delhi and Ajmer Rent Control Act, 38 of 1952.
That Act, in so far as it applied to the Union terri tory of Delhi, was repealed by section 57 of the Delhi Rent Control Act, 59 of 1958.
This latter Act was passed in order to provide a suitable machinery for expeditious adjudication of proceedings between landlords and tenants; to provide for the determination of standard rent payable by tenants; and to give to the tenants a large measure of protection against eviction.
Section 14 of the Act of 1958 affords to tenants substantially the same measure of protec tion which was available to them under section 13 of the Act of 1952.
425 While the Delhi and Ajmer Rent Control Act of 1952 was in force, the Parliament enacted the , 96 of 1956, in order "to provide for the improvement and clearance of slum areas in certain Union territories" including Delhi, and "for the protection of tenants in such areas from ' eviction".
Section 19(1) of that Act, as originally enacted, made all decrees and orders for eviction of tenants in.
slum areas unexecutable, except with the previous permission in writing of the compe tent authority.
The vires of section 19 was challanged in Jyoti Pershad vs The Administrator for the Union territory of Delhi(1) on the ground that it violated articles 14 and 19(1) (f) of the Constitution.
The challenge was repelled by this Court on the ground that section 19 did not offend against the equal protection of laws guaranteed by article 14, that section 19(1) gave enough guidance to the competent authority in the use of his discretion and that the restrictions imposed by section 19 could not be said to be unreasonable.
Adverting to the non obstante clauses in secs.
19 (1) and 39 of the Slum Clearance Act and in sec.
38 of the Delhi and Ajmer Rent Control Act 1952, the Court observed that the provisions of the former Act must, in respect of buildings in slum areas, operate in addition to the provisions of the latter Act.
Section 19(1) of the Slum Clearance Act was amended by Act 43 of 1964 which came into force on February 28, 1965.
Whereas under the unamended provision no person could exe cute any decree or order for the eviction of a tenant from any building in a slum area without the previous permission in writing of the competent authority, under the amended provision no person can, except with such permission, insti tute after the amendment any suit or proceeding for obtain ing any decree or order for the eviction of a tenant from any building or land in a slum area.
If such a decree or order was obtained before the amendment it cannot be execut ed without the requisite permission.
For a proper appreciation of the question involved in this appeal, it is necessary to notice the relevant provi sions of the two Acts under consideration.
We will refer first to the provisions of the Slum Clearance Act and then to those of the Delhi Rent Control Act.
The former Act being of the year 1956 is anterior in point of time to the latter which was passed in 1958 but the more decisive provisions of the latter Act with which we are directly concerned in this appeal were incorporated in that Act in 1976.
The relevant provisions of the Slum Clearance Act are these: "section 19.
Proceedings for eviction of tenants not to be taken without permission of the competent authority. (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority, (a) institute, after the commencement of the Slum Areas (Improvement and Clear ance) Amendment Act, (1) ; 426 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) Where any decree or order is ob tained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred to in sub section (1) shall make an application in writing to the competent authority in such form and contain ing such particulars as may be prescribed.
(3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the .circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission.
(4) In granting or refusing to grant the permission under sub section (3), the competent authority shall take into account the following factors, namely : (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the inter est of improvement and clearance of the slum areas; (c) such other factors, if any, as may be prescribed.
(5) where the competent authority re fuses to grant the, permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant." "section 39.
Act to override other laws.
The provisions of this Act and the rules made thereunder shah have.
effect not withstanding anything inconsistent therewith contained in any other law.
" Having noticed the relevant provisions of the Slum Clearance Act we must refer to the following provisions of the Delhi Rent Act: "section 14(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for 427 the recovery of possession off the premises on one or more of the following grounds only, namely : (e) that the premises let for residential purposes are required bona fide by the land lord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the prem ises are held and that the landlord or such person has no other reasonably suitable residential accommodation; (6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub section (1) on the ground speci fied in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.
(7) Where an order for the recovery of possession of any premises is made on the ground specified in clause (e) of the proviso to sub section (1) the landlord shall not be entitled to obtain possession there of before the expiration of a period of six months from the date of the order.
" "section 14A.
Right to recover immediate posses sion of premises to accrue to certain persons. (1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Gov ernment or any local authority is required by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union terri tory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent Child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything con tained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him: . " "S.25A. Provisions of this Chapter to have overriding effect.
The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law, for the time being in force." "25B. Special procedure for the disposal of applications for eviction. (1 ) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub section (1) of section 428 14, or under section 14A, shall be dealt with in accordance with the procedure specified in this section.
(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
(5) The Controller shall give to the tenant leave to contest the application if the affi davit filed by the tenant discloses.
such facts ' as would disentitle the landlord from obtaining an order for the recovery of posses sion of the premises on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A. (6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable . " "25C. Act to have effect in a modified form in relation to certain persons. (1) Nothing contained in sub section (6) of section 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, an order made by that Govern ment or authority to vacate such residential accommodation, or, in default, to incur certain obligations, on the ground that he owns a residential accommodation either in his own name or in the name of his wife or depend ent child in the Union territory of Delhi.
(2) In the case of a landlord who, being a person of the category specified in sub sec tion (1), has obtained, on the ground speci fied in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, an order for the eviction of a tenant from any premises, the provisions of subsec tion (7) of section 14 shall have effect as if for the words "six months" occurring therein, the words "two months" were substituted".
"section 54.
Nothing in this Act shah affect the provisions of the Administration of Evacu ee Property Act, 1950, or the , 429 1956, or the Delhi Tenants ' (Temporary Protec tion) Act, 1956.
" Sections 14A, 25A, 25B, and 25C were introduced into the Delhi Rent Act by Ordi nance 24 of 1975 which came into force on December 1, 1975.
The Ordinance was later replaced by the Delhi Rent Control (Amendment)Act, 18 of 1976, which was given effect from the date of the ordinance.
Sec tions 25A, 25B and 25C are contained in a newly introduced chapter, IIIA, called "Sum mary Trial of Certain Applications".
Learned counsel appearing on behalf of the appellants has raised the following points: (1) Section 14A of the Delhi Rent Act does nothing more than to.
confer a right on a class of landlords to sue for eviction on the ground of bona fide requirement, which right was not available to that class under clause (e) of the proviso to section 14 of that Act.
A person occupying premises allotted to him by the Government could not before the enactment of section 14A evict his own tenant because, so long as he was in possession of the accom modation allotted to him by the Government he could not satisfy the requirement of clause (e) that he should have no other reasonably suitable residential accommodation; (2) Since section 14A merely furnishes one more cause of action in addition to the existing ones for which a landlord can obtain possession of, the premises let out by him, there is no reason why the application of the Slum Clear ance Act should be excluded in regard to proceedings arising out of the right conferred by section 14A, particularly when the right con ferred by the various clauses of the proviso to section 14(1) is plainly subject to the provi sions of the Slum Clearance Act; (3) Section 54 of the Delhi Rent Act expressly saves.
the operation of the Slum Clearance Act and since section 14A is incorporated into the Delhi Rent Act, the Slum Clearance Act would prevail over it; (4) In view of the non obstante clauses contained in sections 19 and 39 of the Slum Clear ance Act and section 54 of the Delhi Rent Act, every proceeding for eviction of a tenant under the Delhi Rent Act is subject to the provisions of the Slum Clearance Act; (5) The Slum Clearance Act being a special act, the object of which is to afford an additional protection to tenants residing in slum areas, its provisions must have precedence over the provisions of the Delhi Rent Act which is in the nature of a general enactment governing the landlord tenant relationship.
The Slum Clearance Act applies only to notified locali ties in Delhi while the Delhi Rent Act is of general application to the entire territory of Delhi; (6) If it were intended that despite the provisions of section 54 of the Delhi Rent Act, proceedings arising out of a right conferred by section 14A should not be subordinated to the provisions of the Slum Clearance Act, nothing would have been easier for the legislature than to provide in section 14A itself or in the newly introduced Chapter IIIA that to such proceedings the provisions of the Slum Clear ance Act would have no application; and (7) To .deny precedence to the Slum Clearance Act over the Delhi Rent Act in matters arising out of section 14A or Chapter IIIA is to repeal the former Act by implication, pro tanto.
Law disfavours the doctrine of implied repeal.
430 Having considered these submissions carefully we are unable to accept any one of them.
It would not be condu cive to an adequate exposition or a proper understanding of the issues involved in the case to consider the contentions raised on behalf of the appellants seriatim.
The points raised by the appellants ' counsel are interdependent and since they depend for their validity on the thesis that the Slum Clearance Act must in any event have precedence over the Delhi Rent Act in all matters arising under the latter Act, it would be helpful to deal straight away with that contention.
Section 14A, and Chapter IlI A containing sections 25A, 25B and 25C, were introduced into the Delhi Rent Act by Ordi nance 24 of 1975 which was later replaced by the Delhi Rent Control (Amendment) Act, 18 of 1976.
The amending Act was given effect from the date on which the ordinance was pub lished, namely, from December 1, 1975.
By section 25B every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to section 14(1) or under section 14A has be dealt with in accordance with the procedure specified in the section.
Section 25A, which is the first of the collocation of sec tions appearing in Chapter IIIA, provides that the provi sions of that Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Delhi Rent Act or in any other law for the time being in force.
The marginal note to section 25A reads: "provisions of this Chapter to have overriding effect." Section 25A may for convenience be split up into two parts, ignoring for the present purpose the reference to rules made under Chapter IIIA.
In the first place, that section provides that.
the provisions of Chapter IIIA con taining sections 25A, 25B and 25C shall have an overriding effect over every other provision of the Delhi Rent Act which is inconsistent with anything contained in Chapter IIIA.
Secondly, section 25A provides that the provisions of Chapter IIIA shall also have overriding effect over anything incon sistent therewith contained in any other law for the time being in force.
It is patent that by virtue of the first part of section 25A, the provisions of Chapter IIIA must prevail over the provisions of section 54 of the Delhi Rent Act.
The reason is that to the extent to which section 54 saves the opera tion of the Slum Clearance Act, it is inconsistent with the provisions of Chapter IIIA which prescribes a special proce dure for dealing with applications for eviction filed under clause (e) of the proviso to section 14(1) or under section 14A of the Delhi Rent Act.
It is equally clear that by reason of the second part of section 25A also, the provisions of Chapter IIIA would prevail over those of the Slum Clearance Act.
The reason is that the relevant provisions of that Act devise an over riding procedure by reason of which no suit or proceeding can be instituted without the previous permission in writing of the competent authority.
Sections 19 and 39 of the Slum Clearance Act are to that extent inconsistent with the procedure prescribed by Chapter IIIA of the Delhi Rent Act and have to be subordinated to it.
The object of section 14A, as shown by its marginal note, is to confer a right on certain landlords to recover "immediate possession of premises" belonging to them and which are in the possession of their 431 tenants.
In the significant language of the.
marginal note, such a right is "to accrue" to a class of persons.
The same concept is pursued and clarified in the body of section 14A by providing that in the contingencies mentioned in the section, a right will accrue to the landlord "to recover immediately possession of any premises let out by him".
The argument which was presented to us on the use of the word "immediately" in the body of section 14A has thus no substance.
The right conferred by section 14A has to be enforced in accordance with the procedure prescribed by Chapter IIIA.
That is the prescription of section 25B(1).
In order expressly to exclude the operation of all provisions inconsistent with Chapter IIIA whether such provisions are contained elsewhere in the Delhi Rent Act or in any other law like the Slum Clearance Act, section 25A was put on the statute book.
That section gives an over riding effect to the provisions of Chapter IIIA.
But the legislature did not rest content by providing merely that the procedural provisions contained in Chapter IIIA would have such over riding effect.
It took the precaution of making an additional provision in section 14A itself that on and from the date of the order passed by the Central Government or any local authority calling upon a per son to vacate the residential accommodation allotted to him, there shall accrue to such person a right to recover immediately the possession of any premises let out by him, "notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary . "The provisions of section 14A must, there fore, prevail over anything contained elsewhere in the Delhi Rent Act or in the Slum Clearance Act.
In December 1975 when Ordinance 24 of 1975 was promul gated and later when the ordinance was replaced by Act 18 of 1976 the legislature was cognisant that by reason of the provisions contained in section 54 Of the Delhi Rent Act and further by reason of those contained in sections 19 and 39 of the Slum Clearance Act, this latter Act would prevail over all other laws.
As a result, no proceeding could be insti tuted for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area nor could any decree or order be executed against the tenant of any such building or land, without the previous permission in writing of the competent authority.
The object of the legis lature in incorporating the non obstante clause both in sections 14A and 25A of the Delhi Rent Act was to free the proceed ings arising out of the right newly conferred by section 14A and falling within Chapter IIIA, from the restraint imposed by section 19 of the Slum Clearance Act and from the operation of section 39 thereof.
The reason for releasing such proceedings from the pre condition imposed by the Slum Clearance Act is that if the Government or the local authority asks a person to vacate the premises allotted to him by it on the ground that he owns a residential accommodation in his own name or in the name of his wife or dependent child, a provision ought to be made to enable such a person to obtain immedi ately the possession of his own house if it be in the occupation of a tenant.
To subject this facility to the provisions of the Slum Clearance Act, under which 432 the competent authority can grant the requisite permission only by applying the tests prescribed in section 19(4), would be to make illusory the right conferred by section 14A on the allot tee to obtain "immediate possession" of the premises let out by him to his tenant.
It is with a view to making that right truly effective that the legislature gave it prece dence over anything inconsistent therewith contained in the Delhi Rent Act itself or in any other Act like the Slum Clearance Act.
It is noteworthy that whereas section 25A gives an overriding effect to the provisions of Chapter IIIA over anything "inconsistent therewith" contained elsewhere in the Delhi Rent Act or in any other law for the time being in force, section 14A does not qualify the overriding effect of what is contained therein, that is in section 14A, in reference to anything "inconsistent" therewith contained either in the Delhi Rent Act itself or in any other law.
Section 14A provides that there shall accrue a right to the lanlord to recover immediately possession of any premises.
let out by him notwithstanding "anything" contained elsewhere in the Delhi Rent Act or in any other law for the time being in force.
In the context, the word "anything" would ordinarily mean "anything to the contrary", but the point of the matter is that the legislature.
has expressed its intention clearly and unequivocally in more than one way, that the provisions of section 14A and Chapter IIIA of the Delhi Rent Act would have precedence over anything else contained in that Act itself or in any other law.
Section 25C contained in Chapter IIIA points in the same direction.
Section 14(6) of the Delhi Rent Act provides that where a landlord has acquired any premises by trans fer, no application for the recovery of possession thereof shall lie under sub section (1) on the ground specified in clause (e) of the proviso thereto unless a period of five years has elapsed from the date of the acquisition.
A person who acquires by allotment any premises from the Central Government or a local authority would, by reason of section 14(6), be disabled .from asking for possession of his own house from his tenant under section 14A, before the expiry of five years from the date of allotment.
In order that the object of section 14A may not be frustrated, section 25C provides that nothing contained in section 14(6) shall apply to a landlord who is in possession of premises allotted to him by the Central Government or a local authority and who is required to vacate that residential accommodation.
Section 14(7) of the Delhi Rent Act provides that where an order for the recovery of possession is made on the ground specified in clause (e) of the proviso to sub sec.
(1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.
Sub section (2) of section 25C reduces the period of six months to 'two months, which again emphasises that the object of the legislature is to confer a real, effective and immediate right on a class of landlords to obtain possession of premises let out by them to their tenants.
Whatever be the merits of that philosophy, the theory is that an allottee from the Central Government or a local authority should not be at the mercy of law 's delays while being faced with instant eviction by his landlord save on payment of what in practice is penal rent.
Faced with a Hobson 's choice, to quit the official residence or pay the market rent for it, the allottee had in turn to be afforded 433 a quick and expeditious remedy against his own tenant.
With that end in view it was provided that nothing, not even the Slum Clearance Act, shall stand in the way of the allottee from evicting his tenant by resorting to.
the summary proce dure prescribed by Chapter IIIA.The tenant is even de prived of the elementary right of a defendant to defend a proceeding brought against him, save on obtaining leave of the Rent Controller.
If the leave is refused, by section 25B(4) the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the landlord is entitled to an order for eviction.
No appeal or second appeal lies against that order.
Section 25B(8) denies that right and provides instead for a revision to the High Court whose jurisdiction is limited to finding out whether the order complained of is according to law.
Speaking generally, the object and purpose of a legisla tion assume greater relevance if the language of the law is obscure and ambiguous.
But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 nor for seeking light from it for resolving an ambiguity, for there is none, but for a different purpose altogether.
When two or more laws oper ate in the same field and each contains a non obstante clause stating that its provisions will over ride those of any other law, stimulating and incisive problems of inter pretation arise.
Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.
A piquant situation, like the one before us, arose in Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd., (1) the competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953,and the Displaced persons (Debts Adjustment) Act, 1951.
Sec tion 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and section 3 of the Displaced Persons Act 1951 contained each a non obstante clause, providing that certain provisions would have effect "not withstanding anything inconsistent therewith contained in any other law for the time being in force . " This Court resolved the conflict by considering the object and purpose of the two laws and giving precedence to the Banking Companies Act by observing: "It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy under lying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein. "(p. 615).
Asc indicated by us the special and specific purpose which motivated the enactment of section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the compe tent authority were to prevail over them.
Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act.
For resolving such inter se conflicts, one other test may also be applied through the persuasive force of such a test is but one of the (1) ; 434 factors which combine to give a fair meaning to the language of the law.
That test is that the later enactment must prevail over the earlier one.
Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975 are later enactments in reference to section 19 of the Slum Clearance Act which, in its present form, was placed on the statute book with effect from February 28, 1965 and in reference to section 39 of the same Act, which came into force in 1956 when the Act itself was passed.
The legislature gave over riding effect to section 14A and Chapter IIIA with the knowledge that sections 19 and 39 of the Slum Clearance Act contained non obstante clauses of equal efficacy.
Therefore the later enactment must prevail over the former.
The same test was mentioned with approval by this Court in Shri Ram Narain 's case (Supra) at page 615.
Relying strongly on the finding at p. 151 in Jyoti Prasad 's case (supra) that "the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act," counsel for the appellants argues that the question of precedence as between the two Acts is concluded by that decision and we must therefore hold that the con flicting provisions of the two Acts must operate together with equal efficacy, with the result that the previous permission of the competent authority under the Slum Clear ance Act must be obtained before instituting any proceeding under Chapter IIIA of the Delhi Rent Act.
This submission overlooks that in Jyoti Prasad 's case (supra) which was decided in 1961, the Court did not have before it the amendments introduced into the Delhi Rent Act by the amend ing Act of 1976, and therefore no question arose as to the effect of the non obstante clauses contained in sections 14A and 25A of the Delhi Rent Act.
The decision is therefore not an authority for the proposition for which the appellants contend and the question arising before us cannot be held to be concluded by that decision.
The argument of implied repeal has also no substance in it because our reason for according priority to the provi sions of the Delhi Rent Act is not that the Slum Clearance Act stands impliedly repealed protanto.
Bearing in mind the language of the two laws, their object and purpose, and the fact that one of them is later in point of time and was enacted with the knowledge of the non obstante clauses in the earlier law, we have come to the conclusion that the provisions of section 14A and Chapter IIIA of the Rent Control Act must prevail over these contained in sections 19 and 39 of the Slum Clearance Act We understand that the view which we are taking has been consistently taken by the learned Judges of the Delhi High Court in various cases.
They are right in their conclusion and accordingly, we uphold the judgment of the High Court and dismiss this appeal.
In the circumstances, there will be no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | Section 19 of the Slum Areas (improvement and Clear ance) Act 1956 provides that notwithstanding anything con tained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority, institute any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building in a slum area.
Section 39 enacts that the provisions of the Act shall have effect notwith standing anything inconsistent therewith contained in any other law.
Section 14A and Chapter IIIA called "Summary Trial of certain applications" containing sections 25A, 25B and 25C were introduced into the Delhi Rent Control Act with effect from December 1, 1975.
Section 14A provides that where the landlord who, being in occupation of residential premises allotted to him by the Central Government, was required to vacate such residential accommodation on the ground that he Owns residential accommodation within the Union Territory, there shall accrue to such landlord, not withstanding anything contained in the Act or any other law for the time being in force, a right to recover immediately possession of any premises let out by him.
Section 25A provides (i) that the provisions of Chapter IlIA shall have an over riding effect over every other provision of the Delhi Rent Act which is inconsistent with anything con tained in Chapter IIIA and (ii) that the provisions of Chapter IIIA shall have over riding effect over anything inconsistent therewith contained in any other law.
Section 25 B prescribes special procedure for the disposal of appli cations for eviction.
Section 54 provides that nothing in the Act shall affect the provisions of the .
The respondent who was allotted government quarters in New Delhi was called upon by the Government to vacate the quarters on the ground that he owned a residential house in Delhi.
Since he did not vacate the quarters before the time given he was asked to pay a high penal rent.
His application under section 14A of the Delhi Rent Control Act for eviction of the appellants, who were the tenants of the premises, was contested by them on the ground that since the house had been situated in a slum area, the respondent was not entitled to possession because he had not obtained permission of the competent authority under section 19 of the Slum Clearance Act.
This plea was rejected.
Their revision application was rejected by the High Court.
In appeal it was contended that the Slum Clearance Act being a special Act, its provisions must have precedence over the provisions of the Delhi Rent Act and to deny prece dence to the former Act In matters arising out of section 14A and Chapter IIIA was to repeal that Act by implication.
Dismissing the appeal, HELD: The provisions of section 14A and Chapter IlIA of the Rent Control Act must prevail over those contained in sections 19 and 39 of the Slum Clearance Act.
[434 G] 1 (a) By virtue of the first part of section 25A, the provi sions of Chapter IIIA must prevail over the provisions of section 54 of the Delhi Rent Act.
To the extent 422 to which section 54 saves the operation of the Slum Clearance Act, it is inconsistent with the provisions of Chapter IlIA which prescribes a special procedure for dealing with appli cations for eviction filed under cl.
(e) of the proviso to section 14(1) or under section 14A of the Delhi Rent Act [430 F] (b) By virtue of the second part of section 25A also the provisions of Chapter IlIA would prevail over those of the Slum Clearance Act.
Sections 19 and 391 of the Slum Clear ance Act are to that extent inconsistent with the procedure prescribed by Chapter IlIA of the Delhi Rent Act and have to be subordinated to it.
[430 G] 2(a) The object of section 14A is to confer a right on certain landlords to recover "immediate possession of premises" belonging to them and which are in the possession of their tenents.
such a right is "to accrue" to a class of persons.
The same concept is clarified by providing that in the contingencies mentioned in the section, a right will accure to the landlord "to recover immediately possession of any premises let out by him." [430 H] (b) The provisions of section 14A must prevail over anything contained elsewhere in the Delhi Rent Act or in the Slum Clearance Act.
Section 25B(1) prescribes that the right conferred by section 14A has to be enforced in accordance with the procedure prescribed by Chapter ILIA.
Section 25A gives an overriding effect to the provisions of Chapter ILIA.
[431 E] 3(a) The Legislature has expressed its intention clearly and unequivocally that the provisions of section 14A and Chapter IIIA would have precedence over anything else contained in that Act or in any other law.
The object of the Legisla ture in incorporating the non obstante clause both in section 14A and section 25A of the Delhi Rent Act was to free the proceedings arising out of the right newly conferred by section 14A and falling within Chapter IlIA from the restraint imposed by section 19 of the Slum Clearance Act and from the operation of section 39 thereof.
To subject that facility to the provision of the Slum Clearance Act would be to make illusory the right conferred by section 14A on the allottee to obtain "immediate possession" of the premises let out by him to his tenant.
[432D & 431F] (b) While section 25A gives an overriding effect to the provisions of Chapter IlIA over anything "inconsistent therewith" contained elsewhere in the Delhi Rent Act or in any other law, section 14A does not qualify the over riding effect of what is contained therein i.e. in section 14A in refer ence to anything inconsistent therewith contained either in the Delhi Rent Act or in any other law.
The word 'anything ' occuring in "now withstanding anything contained" elsewhere in the Delhi Rent Act would ordinarily mean "anything to the contrary".
[432B C] (c) In order that the object of section 14A may not be frustrat ed, section 25C provides that nothing contained in section 14(6) shall apply to a landlord who is in possession of the premises allotted to him by the Central Government and who is re quired to vacate that residential accommodation.
Section 25C(2) reduces the period of six months prescribed under section 14(7) for recovery of possession of the premises to two months which emphasises that the object of the Legislature is to confer real, effective and immediate right on a class of landlords to obtain possession of premises let out by them to their tenents.[432F H] (4) To afford a quick and expeditious remedy against the tenant the Act provided that nothing, not even the Slum Clearance Act, shall stand in the way of an allottee of Government accommodation from evicting his tenant by resort ing to the summary procedure prescribed by Chapter IIIA.
The tenant is deprived of the right to defend a proceeding against him and to appeal or second appeal lies against the order of the Rent Controller.
The jurisdiction of the High Court m revision is limited to finding out whether the order complained of is according to law.
[433A B] (5(a) When two or more laws oVerate in the same field and each contains a non obstante clause, cases of conflict have to be decided in.
reference to the object and purpose of the law under consideration In the instant case, the 423 special and specific purpose which motivated the enactment of section 14A and Chapter IIIA would be frustrated if the provisions of the Slum Clearance Act were to prevail over them.
Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the country contained in the Slum Clear ance Act.
[433 D & G] Sri Ram Narain vs The Simla Banking & Industrial Co. Ltd. [1956] S.C.R. followed.
(b) Yet another test is that the later enactment must prevail over the earlier one.
Section 14A and Chapter IlIA having been enacted with effect from December 1, 1975 are later enactments in reference to section 19 of the Slum Clear ance Act which was placed on the statute book with effect from February 28, 1965 and i.n reference to section 39 of the same Act which came into force in 1956 when the Act was passed.
The Legislature gave overriding effect to section 14 A and Chapter IlIA with the knowledge that sections 19 and 39 of the Slum Clearance Act contained non obstante clauses of equal efficacy.
[434A B]
|
Appeal No. 690 of 1976.
Appeal from the Judgment and Order dated the 16th December, 1975 the Gujarat High Court in Special Civil Appln.
No. 571/75.
G.S. Sanghi and Girish Chandra for the Appellants.
V.M. Tarkunde, K.L. Hathi and Mrs. P.C. Kapur for Re spondent No. 1.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal on certificate is from the judgment of the High Court of Gujarat.
The appellants 1 and 2 are respectively the Union of India and the Regional Provident Fund Commissioner.
The 1st respondent is Majur Mahajan Mandal (hereinafter to be described as the union), a registered trade union representing the majority of the textile workers of the five textile mills of Baroda (re spondents 2 to 6) who are not represented before us and who will be described hereinafter as the mills, Since some time in 1973, industrial disputes in respect of dearness allowance (D.A.) had been pending between the union and the mills in five references before the Industrial Court, Gujarat, being Reference Nos.
406, 407, 408, 409 and 421 of 1973.
The rate of D.A. for the employees in the cotton textile industry in Ahmedabad had earlier been fixed by an award of an industrial Tribunal which will be referred to hereinafter as the Ahmedabad Rate.
The prevalent D.A. in 1973 in the mills with which we are concerned was 90% of the Ahmedabad Rate.
The union was raising the aforesaid disputes for increasing the D.A. to 100% of the Ahmedabad Rate with effect from October 1, 1972.
Hence the above references were pending before the Industrial Court.
As a result of negotiations between the parties during the pendency of the said disputes before the Industrial Court D.A. was agreed to be paid at the rate of 95% of the Ahmedabad Rate of D.A. with effect from January 1, 1974, as will appear from an interim award of the Industrial Court dated June 21, 1974.
Thereafter by further negotiations the disputes regarding D.A. were finally resolved by the mills and the union entering into a settlement on June 28, 1974, by fixing D.A. at 100% of the Ahmedabad Rate with effect from January 1, 1974.
Awards were later made bY the Court in conformity with the said settlement in the pending disputes some time in August and September, 1974.
It is not disputed that the workers of the mills in pursuance of the settlement of the disputes received D.A. at 100% of the Ahmedabad Rate retrospectively with effect from 1st January, 1974.
It may even be assumed that the arrear D.A. for the past period from January 474 1, 1974, was paid to the workers in August or perhaps.
even later, that is to say, after 6th July, 1974, the signifi cance of which date we will immediately see.
While the aforesaid disputes were pending before the Industrial Court, The (briefly the Act), replacing the earlier Ordinance on the subject, came into force retrospectively from 6th July, 1974, the appointed day, under the Act.
This Act was passed as the preamble says, "to provide, in the interests of national economic development, for the compul sory deposit of additional emoluments and for the framing of a scheme in relation thereto, and for matters connected therewith or incidental thereto".
The employees to whom the Act is applicable are classi fied into three categories, namely, employees of the Govern ment, of local authorities and other employees.
The principal object of the Ordinance and later of the Act is to control the menacing inflationary trend which has been the bane of the country 's economy.
On the one hand there has been persistent demand from employees for revi sion of wages and increase of D.A. on account of the high cost of living and on the other the State has to tackle the national problem of mounting pressure of inflationary forces.
While, therefore, meeting with the demands for rise in emoluments, simultaneously, steps with equal force had to be taken so that the additional amounts disbursed do not immediately flow to the market adding a further fillip to inflation.
The Ordinance and later the Act thus provide for compulsory deposit for a period of one year of the whole of the additional wages and for a period of three years of half of the additional D.A.
The additional emoluments earned are thus impounded under the Act and are not immediately available to the employees for instant consumption.
The Act provides a scheme of beneficial forced saving and the deposited amounts will be finally repaid to the employees in different ways specified in the Act with interest at 21/2% over and above the Bank deposit rate.
Before we proceed further we may note some of the provi sions of the Act material for our purpose: By section 2(a) of the Act "appointed day" means the 6th day of July, 1974".
By section 2(b) " 'additional dearness allowance ' means such clearness allowance as may be sanctioned from time to time, after the appointed day, over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect".
* * * * By section 2(e) " 'dearness allowance ' means all cash payments, by whatever name called, made to an employee on account of rise in 475 the cost of living".
Under section 2(g) " 'emoluments ' include wages and dearness allowance".
Under section 5 every specified authority (herein the employer) shall open two separate accounts, namely, the Additional Wages Deposit Account and the Additional Dearness Allowance Deposit Account.
The employer shall open a sepa rate ledger account in the name of each employee.
Section 6(2)(b) of the Act enjoins on the employer a duty to make deductions and to remit to the nominated authority addition al wages and additional D.A. from emoluments disbursed after the appointed day.
In the case of additional wages it will be the whole amount and in the case of additional D.A. it will be half of it.
It is common ground that the Act applies to the mills which are the "employers" under the Act and also "specified au thorities" under the Additional Emoluments Compulsory Depos it (Employees other than employees of Government and Local Authorities) Scheme, 1974, which is made under section 10 of the Act.
The union applied to the High Court under Article 226 of the Constitution for a writ of mandamus or other suitable order to permanently restrain the mills from effecting any deduc tion from the arrears of dearness allowance payable to their employees from January to June 1974 on the basis of the settlement of 28th June, 1974.
There was a further prayer to permanently restrain the mills from treating the base for calculation of additional D.A. at a rate less than the agreed 100% of the Ahmedabad Rate and to direct the mills not to deduct or deposit 21/2% of D.A. per month payable to each employee treating the same as not being additional D.A. within the meaning of section 2(b) of the Act.
Lastly there was a prayer for refund of the amount already deducted by the mills.
The High Court allowed the writ application and also granted certificate to appeal to this Court.
The appellants contend that 100% of the Ahmedabad Rate of D.A. to the workers was sanctioned after the appointed day, that is to say after 6th July, 1974, when the awards were made between August and September 1974 in pursuance of the settlement of June 28, 1974.
The claim of the appellants is two fold: First, since the increased D.A. to the work ers was sanctioned after the appointed day, only when the awards were made, the difference between the increased D.A. at 100% of the Ahmedabad Rate and the prevailing rate pay able in arrears from 1st January, 1974 to 30th June, 1974, will be additional D.A. in terms of section 2(b) of the Act and is, therefore, subject to deduction of 50% of the same.
Second, for future deductions of additional D.A., after the appointed day, the base for calculation of additional D.A. should be 95% of the Ahmedabad Rate of D.A. which was pre vailing prior to 6th July, 1974, in terms of the interim award of 21st June, 1974.
In other words, for future deductions of additional D.A. after 6th July, 1974 the appellants claim that the workers should be treated as if they were in receipt of D.A., prior to the appointed day, at 95% of the Ahmedabad Rate which had been in force in terms of the interim award of 21st June, 1974, which is the earli er sanction for the 95% rate.
Hence, 2 1/2% (that is 50% of 5% being the difference between 95% and 100%) of the same will be liable for deduction under the Act from 6th July, 1974.
According to the appellants, the benefit of 100% was available only after the making of the awards which was, thus, sanctioned after 476 the appointed day notwithstanding the fact that the settle ment had been entered upon on 28th June, 1974.
Section 2(b) will, therefore, be clearly attracted, according to the appellants.
It is submitted by the appellants that the word "sanc tioned" in the definition of 'additional dearness allowance ' under section 2(b) is very significant.
It is contended that the settlement during the pendency of an industrial dispute before the industrial Court has to be approved by the Court before it can be said to be sanctioned within the meaning of the provisions of section 2(b).
Reference is made to section 115A of the Bombay Industrial Relations Act, 1946.
That section, so far as it is material for our pur pose, provides that if any agreement is arrived at between an employer and the union which are parties to an industrial dispute pending before an Industrial Court the award in such proceeding shall be made in terms of such agreement unless the Industrial Court is satisfied that the agreement was in contravention of any of the provisions of the Act or the consent of either party to the agreement was caused by mistake, misrepresentation, fraud, undue influence, coercion or threat.
Relying on section 115A, it is submitted by the appellants, that unless the award is made in pursuance of the settlement under the said section the settlement is inchoate and cannot be said to be effective, in law, prior to the making of the award which was done, in the instant case, between August and September 1974.
It is, therefore, submitted that the additional D.A. can be said to be sanc tioned only under the award which was made admittedly after the appointed day, that is after July 6, 1974.
We are unable to accept this contention.
It is true that an agreement arrived at between the parties during the pendency of an industrial dispute before the Industrial Court has to be placed before that Court.
It is also true that if the Industrial Court is satisfied that certain conditions enumerated in section 115A exist it will not recognise the settlement and dispose of the dispute in accordance with law.
If, however, the conditions enumerated in section 115A do not exist the award "shall be made" in terms of the settlement.
There is No. other option.
In this particular case the settlement was placed before the Industrial Court which ultimately passed the awards in conformity with the terms of the settlement.
We are not required to consider a case where the Industrial Court has not approved of the settlement under section 115A.
Once, therefore, the award is made in terms of the settlement, under section 75 of the Bombay Industrial Rela tions Act, the award shall come into operation on the date specified in the award or where no such date is specified therein on the date on which it is published under section 74.
We are informed that the awards have not yet been published but that should not detain us in this case.
It is common ground that the awards were in terms of the settle ment which had retrospective operation from January 1, 1974.
Since the settlement has merged in the awards the terms of the awards are those specified in the settlement.
It is those dates which 477 are, therefore, specified in the awards and, under section 75 of the Bombay Industrial Relations Act, the awards came into operation with effect from January 1, 1974.
The sanc tion of the awards in such a case is the sanction under the settlement and since the settlement was prior to July 6, 1974, the additional D.A. cannot be said to be sanctioned after the appointed day.
100% of the Ahmedabad Rate of D.A. will be payable to the workers with effect from January 1, 1974 and the sanction for that rise was on 28th June, 1974, the date of the settlement which was prior to the appointed day.
Sanction must have relevance to the reality of the transaction between the parties.
The settlement of 28th June, 1974, makes the increased D.A. of 100% payable with effect from January 1, 1974.
Hence the said rate of in creased D.A. which was payable to the workers between Janu ary 1, 1974 and July 5, 1974, was sanctioned prior to the appointed day.
We have already noted the definition of additional D.A. in section 2(b) which is an integrated definition.
The definition clause has twin components both of which will have to be satisfied in order that a particular amount can be held to.
be additional D.A.
To put it clearly the two components are ( 1 ) additional D.A. is that part of the D.A. which is sanctioned after the appointed day; and (2) which is over and above what was payable immediately before the date from which sanction of the particular rise in D.A. is to take effect.
With regard to the first component any unilateral deci sion to increase the D.A. or a bilateral settlement for its increase, to take only two instances, must take place after the appointed day.
It is manifest that if the sanction is after the appointed day it is then only the question of additional D.A. will arise within the meaning of section 2(b).
Once it is found that the sanction of rise in DA.
is prior to the appointed day, section 2(b) will not at all be attracted.
In that event it will not be necessary even to.
consider the second component of the definition mentioned above.
In the instant case we have already held that the rise in D.A. to 100% of the Ahmedabad Rate of D.A. was sanctioned under the settle ment of 28th June, 1974, that is, before the appointed day.
One of the principal components of the definition clause is, therefore, clearly absent in this case since there is no sanction for any rise in D.A. after the appointed day.
We should observe that this is not a case where Explana tion I to section 2(b) is applicable.
Mr. Singhvi for the appellants submits that in view of the aim and object of the Act the Court should lean in favour of an interpretation advancing the remedy by constru ing the word "sanctioned" in section 2(b) to .mean sanc tioned by the award and not by the settlement.
We have already given our reasons for our inability to accept this submission.
One other reason may be added.
478 The Act recognises agreements and settlements in the same way as awards of Tribunals, vide, section 2(c).
The definition of "additional wages" under section 2(c) clearly points to that.
Any wage revision "whether by or under an agreement or settlement between the parties or any award . "comes within the sweep of the aforesaid defi nition clause.
Agreements and settlements are separately and distinctly mentioned along with awards.
Settlement is a type of sanction recognised under the Act.
There is, there fore, sufficient warrant under the Act to give effect to the sanction by voluntary settlement in respect of D.A. when the same has never been repudiated by any of the concerned parties.
When there is no ambiguity in the word "sanctioned" in section 2(b), recourse to the aim and object of the Act is not even called for in this case.
Both the contentions of the appellants, therefore, fail on the solitary.
ground, namely, that the particular sanc tion of additional D.A. in this case is not after the ap pointed day.
The appeal is dismissed with costs.
P.B .R.
Appeal dismissed.
| IN-Abs | Section 2(b) of the defines additional dearness allowance to mean such dearness allowance as may be sanctioned from time to time after the appointed day, i.e., July 6, 1974 over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect.
Section 6(2) (b) enjoins on the employer the duty to make deductions and to remit to the nominated au thority additional dearness allowance from the emoluments disbursed after the appointed day.
Section 115A of the Bombay Industrial Relations Act, 1946 provides that if any agreement is arrived at between the employer and employees who are parties to an industrial dispute pending before the industrial court, the award in such proceeding shall be made in terms of such agreement, except in certain circumstances stated therein.
As a result of negotiations between the employers and employees a settlement was entered into between the parties on June 28, 1974 enhancing the dearness allowance with retrospective effect from January 1, 1974.
The Indus trial Court before which certain disputes were pending gave the award conformity with the settlement sometime in August September, 1974.
Arrears of dearness allowance were paid after the appointed day.
In a petition under Article 226 of the Constitution by the employees ' Union, the High Court issued a writ re straining the employers from effecting any deduction from the arrears of D.A. payable to the employees on the basis of the settlement and granted certain other reliefs.
In appeal it was contended that since the settlement of June 28, 1974 could not be effective prior to the award made in August September 1974 additional dearness allow ance could be said to be sanctioned only after the award and so the provisions of section 2(b) would be attracted.
Dismissing the appeal HELD: One of the components of cl. 2(b) namely, that the additional dearness allowance is that part of the D.A. which is sanctioned after the appointed day, is absent since there was no sanction for any rise in dearness allowance after the appointed day.
[477 G] (1) According to section 115A of the Bombay Industrial Rela tions Act if the conditions enumerated therein did not exist the award "shall be made" in terms of the settle ment.
Since the settlement in this case had merged in the award, the terms of the award are those specified in the settlement.
The sanction of the award in such a case was the sanction under the settlement and since the settlement was prior to the appointed day, additional dearness allow ance could not be said to be sanctioned after the appoint ed day.
[476 F & H] In the instant case the Industrial Court having passed the award in conformity with the terms of the settlement, the award came into operation on the date specified in it.
(2) Sanction must have relevance to the reality of the transaction between the parties.
Increased dearness allowance payable between January 1, 1974 and July 5, 1974 was sanctioned prior t.o the appointed day.
Once it is found that the sanction was prior to the appointed day, section 2(b) would not be attracted.
[4 (3) From the definition of "additional wages" in section 2(c) it is clear that the Act recognises agreements and settle ments in the same way as awards of Tribunals.
Any wage revision "whether by or under an agreement or settlement between the parties or any award" comes within the sweep of the definition clause.
Agreements and settlements are distinctly mentioned along with awards.
Settlement is a type of sanction recognised under the Act.
There is there fore sufficient warrant under the Act to give effect to the sanction by voluntary settlement in respect of D.A.
When there is no ambiguity in the word "sanctioned" in section 2(b) recourse to the aim and object of the Act is not called for.
[478 A B]
|
Appeal No. 1860 of 1968.
(Appeal by Special Leave from the Judgment and decree dated the 29th January, 1968, of the Bombay High Court in Appeal No. 472/ 60).
R.P. Bhatt, B.R. Agarwala and Janendra Lal, for the appel lants.
Sachin Chaudhary, Prakash Mehta, Ravinder Narain and K.L. John of M/s. 1.
B. Dadachanji & Co. for the respond ents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave which is directed against the judgment and decree dated January 29, 1968, of the High Court of Judicature at Bombay involves a question of the applicability or otherwise of the doctrine of frustration embodied in section 56 of the Contract Act which to use the words of Viscount Maugham in Joseph Con stantine Steamship Line Limited vs Imperial Smelting Corpo ration Ltd. (1) "is only a special case of the discharge of contract by an impossibility of performance arising after the contract was made" or to use the language of Mukherjea, J. in Satyabrata Ghose vs Mugneeram Bangut & Co. & Anr.(2) "is really an aspect or part of the law off discharge of contract by reason of supervening impossibility or illegali ty of the act agreed to be done and hence becomes within the purview of section 56 of the ." The facts giving rise to this appeal lie in a short compass and may be briefly stated: The respondents who are the owners of four plots of agricultural land admeasuring 7 acres and 13 gunthas and a bungalow standing thereon situate in village Majwade, near Pokhran Talao Road, Thana, having bought the same from Homi D. Dubash under a sale deed dated September 9, 1953 agreed to sell the same to the appellants in lieu of Rs. 25,000/ vide agreement dated May 16, 1957, relevant clauses whereof provided as follows : "5.
If the purchasers shall insist on any requisitions or objections as to the title, evidence of title, conveyance, posses sion, receipt of rent or any other matters on the abstract of or this agreement or connected with the sale which the Vendors shall be unable or on any ground unwilling to remove or comply with, the Vendors shall be at liberty notwithstanding any negotiation or litigation in respect of such requisition or objection, to give to the Purchasers or their Solicitors notice in writing of their intention to re scind the contract for sale unless such requisition or objection be withdrawn and if such notice be given and the requisition or objection be not withdrawn within ten days after the day on which the notice was sent, the contract shall, without further notice be rescinded.
The Vendors shall thereupon return to the purchasers the deposit but without any interest,costs of investigating the title or other compensation or payment whatever.
(1) , 168.
(2) ; 513 6.
if the title be not approved by the Purchaser 's attorneys or if the purchase is not completed within the said period of two months owing to any default on the Vendors ' part, it shall be at the option of the Pur chaser to rescind this agreement and in that event the Purchaser shall be entitled to receive back the earnest money from the Ven dors, together with out of pocket costs incurred in the preparation of this agree ment and investigation of title, advertise ment, Bataid, correspondence etc.
But in ease of the Vendors wilful default the Ven dors shall also pay to the Purchasers interest at 6% per annum on the amount of earnest money from the date hereof fill the date of return of the earnest money and all costs of the Purchasers.
If the sale is not completed within time provided for completion owing to the fault of the Purchaser, the Vendors shall be entitled to put an end to this contract and to for feit the earnest money.
" Pursuant to the aforesaid agreement, the respondents ' attorneys delivered the documents of title to the appellants attorneys on May 17, 1957 for investigation of title and in the third week of May, 1957 the respondents gave possession of the aforesaid property to the appellants in part perform ance of the said agreement.
On August 22, 1957, the re spondents and the appellants made a joint ,application to the District Deputy Collector, Thana Prant, under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act ') seeking permission to sell and purchase the aforesaid agricultural land.
Section 63 of the Act reads: "63.
(1) Save as provided in this Act (a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mort gaged property is delivered to the mortga gee, shall be valid in favour of a person who is not an agriculturist (or who being an agricul turist will after such sale, gift, exchange, lease or mortgage, hold land exceeding two thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 or who is not an agri cultural labourer): Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed . . " It may be mentioned that the conditions alluded to in the proviso to the above quoted section 63 have been pre scribed by Rule 36 514 of the Bombay Tenancy and Agriculutral Lands Rules, 1956 (hereinafter referred to as 'the Rules ') the relevant por tion whereof is to the following effect: "36.
Conditions on which permission for sale, etc., of land under section 63 may be granted. (1) The Collector or other officer authorised under the proviso to sub section (1 ) of section 63 shall not grant permission for sale, gift, exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or agricultural labourer or who, being an agriculturist, cultivates per sonally laud not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the follow ing conditions are satisfied. . (f) the land is required for cultivating it personally by a person, who, not being an agriculturist, intends to take to the profes sion of agriculture and to whom the Collector after having regard to the order of priority mention in clause (c) of sub section (2) of section 32 P, has given a certificate that such person intends to take to the profession of agriculture and is capable of cultivating land personally; . " By means of communication No. TNC.48 dated December 8, 1958, the Prant Officer, Thana, informed the respondents that their request to sell the aforesaid lands to appellant No. 1 could not be granted as the intending purchaser had not obtained the certificate from the Collector to the effect that "he intends to take to the profession of agri culture and is capable of cultivating land personally.
" On January 21, 1959, the respondents ' attorneys wrote to the appellants informing them that no effect could be given to the aforesaid agreement of sale dated May 17, 1957 as the permission under the Act to sell the suit property had been refused by the Prant Officer by his letter dated December 8, 1958 (supra) for appellant No. 1 's failure to obtain the certificate to the effect that he intended to take to the profession of agriculture and was capable of cultivating land personally.
The respondents ' attorneys also called upon the appellants by means of the said communication to return the tite deeds adding that on the return of the title deeds, the earnest money paid by them at the time of execu tion of the aforesaid agreement would be returned to them.
On March 4, 1959, the appellants ' advocate wrote to the respondents ' attorneys requesting them to authorise the appellants to approach the higher authorities for securing the necessary permission.
On March 14, 1959, the respond ents ' attorneys wrote to the appellants ' attorneys evasively replying that no useful purpose would be served by approach ing the higher authorities having regard to the provisions of the Act.
On the respondents ' refusal to cooperate with the appellants in the matter of obtaining permission or sanction under the Act, appellant No. 1 made an application to the Collector, Thana District, Thana on April 8, 1959, bringing the above mentioned facts to his notice and re questing him to grant him a certificate of an agriculturist and the necessary permission to purchase the aforesaid plots of land.
Acceding to the request of appellant No. 1, the Additional Collector.
Thana 515 by his order dated June 6, 1959 granted to the former the requisite certificate under Rule 36 of the Rules as also the permission to purchase the aforesaid plots of land from the respondents as required under section 63(1) of the Act read with Rule 36 of the Rules.
The said order ran as follows : No. CB/TNC, 1800 Collector 's Office, Thana, Thana, 6th June, 1959.
Read: Application of the applicant Shri G.G. Patel, dated the 8th April, 1959.
Read: Papers ending with Mamlatdar, Thana 's No. TNC.
400 dated the 11th May, 1959.
ORDER A certificate is hereby granted to Shri Govindbhai Gordhanbhai Patel residing at House No. 404, Majiwade, Taluka Thana on his appli cation dated 8th April, 1959 under subclause 'C ' of clause 1 of Rule 36 that he intends to take to the profession of Agriculture.
After having gone through the merits of the priority list mentioned in clause (C) of section 2 of section 32 P, through the Mamlatdar Thana, permission is hereby granted to Shri Govindb hai Gordhanbhai Patel to purchase the land mentioned below from Shri Ibrahim Ismail Jetpurwala etc.
under section 63(1) read with Rule 36 under the Bombay Tenancy and Agricul tural Lands (Amendment) Act, 1955 on the conditions as mentioned under : Village section No. H. No. Area Majiwade 415 Part 6 51/4 289 2 (Part) 0 36 1/2 280 1 (Part) 0 7 280 4 0 5 7 13 3/4 Conditions : Permission to purchase the land mentioned above is granted subject to the condition that if the applicant Shri G.G. Patel ceases to cultivate the land personally or transfers his interest in the said land by sale, gift, exchange, lease or mortgage without the previous sanction of the Collector, the permission given under sub section ( 1 ) of section 63 shall be deemed to have been cancelled.
Sd/ For Addition al Collector, Tha na" 516 On June 25, 1959, the appellants ' attorneys addressed a communication to the respondents ' attorneys forwarding therewith a copy of the aforesaid order No. CB/TEC/1800 dated June 6,1959, made by the Additional Collector, Thana granting permission to appellant No. 1 for the purchase of the aforesaid plots of land and requesting the respondents to let them know as to when their clients would desire to complete the sale and further asking them whether they had got the property transferred to their names in the records of the Collector of Thana, whereupon the respondents ' advo cate by his letter dated June 30, 1959 addressed to the appellants ' attorneys replied saying that his clients could not take notice of the aforesaid permission.
Thereafter the respondents served a notice on the appellants on August 25, 1959 calling upon them to return the title deeds and to restore possession of the aforesaid property.
Thereupon, the appellants ' advocate wrote to the respondents attorneys on November 24, 1959 pointing out to them that appellant No. 1 having obtained the requisite sanction from the Collector, the respondents were bound to complete the sale and to execute the conveyance in favour of appellant No. 1 and that the aforesaid agreement could not be put an end to in the manner in which the respondents were attempting to do.
Not heeding the aforesaid communication of the appellants dated November 24, 1959, the respondents filed a civil suit, being suit No. 36 of 1959 on November 17, 1959 in the Court of the Civil Judge, Senior Division, Thana, for declaration that the aforesaid agreement dated May 16, 1957 was void in law and of no legal effect and for possession of the aforesaid property as also for compensation at the rate of Rs. 150/ per mensem for wrongful retention of the property from June, 1957 till delivery of possession thereof.
In spite of the stout resistance put up by the appellants, the trial Court decreed the suit in favour of the respondents subject to their paying to the appellants or depositing in Court the earnest money of Rs. 5,000/ and the compensation amount of Rs. 882.25 holding inter alia that the aforesaid agree ment dated May 16, 1957 which was void ab initio being violative of section 63 of the Act was discovered by the respondents to be void in June, 1957 when they found that the permission under section 63 of the Act was necessary.
Aggrieved by the judgment and decree of the trial Court, the appellants took the matter in appeal to the High Court of Bombay but their appeal remained unsuccessful.
The High Court held that the aforesaid agreement to sell was not void ab initio as section 63 of the Act itself envisaged sale etc.
in favour of a nonagriculturist with the permission of the Collector or an officer authorised by the State Govern ment in that behalf subject to the conditions which may be prescribed and Rule 36 of he Rules prescribed only a certif icate by the relevant authority to the effect that the intending purchaser intended to adopt the profession of an agriculturist.
The High Court, however, opined that the aforesaid agreement became incapable of being performed on December 8, 1959 when the Prant Officer declined permission to the respondents to sell the property to the appellants.
Rejecting the contention advanced on behalf of the appel lants the effect that the aforesaid letter dated January 21, 1959 written by the respondents to the appellants did not terminate or rescind the agreement, the High Court further held that the said letter amounted to cancellation of the agreement.
517 Appearing in support of the appeal, Mr. Bhatt, counsel for the appellants, has vehemently urged that the aforesaid order passed by the Prant Officer refusing permission to the respondents to sell the lands did not make the contract impossible of performance; that the said order was merely administrative in character and did not bar the making of the second application by the appellants under section 63 of the Act; that the said agreement was subsisting on June 25, 1959 when the appellants obtained the requisite permission and the certificate from the Additional Collector, Thana, and that section 56 of the was not attracted in the present case as the contract had not become impossible of performance.
Mr. Sachin Chaudhary, counsel for the respondents, has, on the other hand, contended that the agreement became impossible of performance and as such void on December 8, 1958, when the Prant Officer refused to permit the respond ents to sell the suit property to the appellants, and that the Prant Officer who had co ordinate jurisdiction with the Collector under section 63 of the Act having refused to grant permission to the respondents to sell the suit proper ty by his order dated December 8, 1958, which was of quasi judicial character and had not been set aside either in appeal or revision, it was not open to the Collector to grant the permission to the appellants.
Two questions arise for determination in this case (1) whether the order of the Prant Officer dated December 8, 1958, rendered the aforesaid agreement dated May 16, 1957 impossible of performance and as such void under section 56 of the and (2) whether in view of the aforesaid order of refusal by the Prant Officer, Thana dated December 8, 1958, the Additional Collector, Thana, was not competent to grant the sanction and the certificate under section 63 of the Act and Rule 36 of the Rules.
The answer to the first question depends on the construction of the expression 'impossible of performance ' occurring in section 56 of the which lays down: "56.
An agreement to do an act impossi ble in itself is void A contract to do an act which after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promise sustains through the non performance of the promise.
" The meaning of the aforesaid expression 'impossible of performance ' as used in the above quoted section would be clear from the, following observation made by Lord Loreburn in Tampfin Steamship 518 Co. Ltd. vs
Anglo Mexican Petroleum Products Co. Ltd(1) 403 which is generally considered to contain a classic and terse exposition of the law relating to frustration: "The parties shall be excused if sub stantially the whole contract becomes impossi ble of performance or in other words imprac ticable by some cause for which neither was responsible.
" We find ourselves in complete accord with this view which also finds support from the decisions of this Court in Satyabrata Ghose vs Mugneerarn Bangur and Co. and Anr.
(supra) and Smt.
Sushila Devi and Anr.
vs Hari Singh and Ors.(2) where it was held that the performance of a contract becomes impossible if it becomes impracticable from the point of view of the object and the purpose which the par ties had in view and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do.
It would be advantageous at this stage to refer to the following observations made by Mukherjee, J. Satyabrata Ghose vs Mugneerarn Bangur and Co. and Anr (supra) which is a leading authority on the subject of frustration: "The first paragraph of the section lays down the law in the same way as in England.
It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act.
The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done.
The wording of this paragraph is quite general and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment.
This much is clear that the word "impossible" has not been used here in the sense of physical or literal impossibility.
The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the .parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, R can very well be said that the promisor found it impossible to do the act which he promised to do.
Although various theories have been propounded by the Judges and jurists in Eng land regarding the judicial basis of the doctrine of frustration, yet the essential idea upon which the doctrine is based is that of impossibility of performance of the con tract: in fact impossibility and frustration are often used as interchangeable expres sions.
The changed circumstances, it is said, make the performance of the contract impossible and the parties are absolved from the further (1) (2) 519 performance of it as they did not promise.
perform an impossibility.
" In the instant case, there is no term or condition in the agreement in question which stipulates that the agree ment would be treated as having become impracticable on the refusel of the Prant Officer to grant the permission under section 63 of the Act.
The parties are, ' therefore, gov erned purely by section 56 of the Contract Act according to which a contract becomes void only if something supervenes after its execution which renders it impracticable.
On the contention advanced on behalf of the respondents, the ques tion that arises is whether the above quoted order of the Prant Officer, Thana Prant, dated December 8, 1958, rendered the contract impracticable.
The answer to this question is obviously in the negative.
The said order, it will be noted, was not of such a catastrophic character as can be said to have struck at the very root of the whole object and purpose for which the parties had entered into the bargain in question or to have rendered the contract impracticable or impossible of performance.
A careful perusal of the order would show that it was neither conclusive nor was it passed on the merits of the aforesaid application.
The permission was refused by the Prant Officer only on the technical ground that the appellants had not obtained the requisite certificate as contemplated by rule 36(f) of the Rules.
It did not in any way prohibit the appellants from making a fresh application to the Collector, Thana Prant, who in view of the Phraseology of section 63 of the Act read with clause (f) of rule 35 of the Rules appears to be the only authority competent to grant the requisite certificate.
The said order also did not put any fetter on the appellants to apply to the Collector or the Additional Collector for grant of the requisite permission for sale and purchase of the land after obtaining the aforesaid certificate.
We, are, therefore, clearly of the opinion that no untoward event or change of circumstances supervened to make the agreement factually or legally impossible of performance so as, to attract section 56 of the Contract Act.
The answer to the second question turns on the answer to two subsidiary questions (i) whether in according or declining to accord permission under the proviso to section 63 (1) of the Act, the Collector or the officer authorised by the State Government in that behalf acts in an adminis trative capacity or a judicial or a quasi judicial capaci ty and (ii) whether the aforesaid order dated December 8, 1958 passed by the Prant Officer, Thana was one on merits or otherwise.
Turning to the question (i), it has to be ob served that there is nothing in section 63 of the Act to indicate that in exercising his jurisdiction under the proviso to sub section (1) of the section, the Collector or the authorised officer has to act judicially or in conformi ty with the recognised judicial norms.
There is also nothing in the aforesaid Section of the Act requiring the Collector or the authorised officer to determine any ques tion affecting the right of any party.
The function which the Collector or the authorised officer discharges under the aforesaid proviso is, therefore, an administrative one and not judicial or quasi judicial.
It will be apposite to advert to a few decisions 17 1546 SCI/76 520 bearing on the matter.
In A.K. Bhaskar vs Advocate General(1) a full Bench of the Kerala High Court held that the decision of the Advocate General granting or refusing to grant the sanction under section 92 of the Civil Proce dure Code was neither judicial nor quasijudicial notwith standing the fact that he has to form an opinion and come to conclusion one way or the other.
To the similar effect are the decisions of Allahabad and Rajasthan High Courts in Shantanand vs Advocate General(2) and Shrimali Lal vs Advo cate General(3).
In Abdul Kasim vs Md. Dawood(4) it was held that in granting or withholding sanction to file a suit under section 55(2) of the Muslim Wakfs Act, 1954, the Wakf Board does not act in, a judicial or quasijudicial capacity but only in an administrative capacity.
In The State of Madras vs
C.P. Sarathy and Anr.(5).
It was held by this Court that the act of the Government in making a reference under section 10 of the Industrial Disputes Act was merely an administrative act and the fact that the Government before making a reference under section 10(1) of the Act had to satisfy itself on the facts and circumstances brought to its notice that an industrial dispute existed did not make the act judicial or quasi judicial.
In regard to question (ii), it may be stated that al though the Prant Officer may have been exercising concurrent jurisdiction with the Collector, Thana Prant, he did not pass any orders on the merits of the previous application made by the respondents and endorsed by the appellants seeking permission to sell and purchase the suit property.
The order, as already stated, was passed by him on the ground that the intending purchaser had not obtained the certificate required under rule 36(f) of the Rules.
It is well recognised that the dismissal of a proceeding by an authority not on merits but merely on account of a formal defect will not attract the applicability of the general principles of Res judicata and will not debar the authority exercising concurrent jurisdiction from entertaining the subsequent proceedings for same relief and passing proper orders on merits.
(See Putali Meheti vs Tulja.(6) where the rejection of a previous suit for the plaintiff 's omission to produce a certificate of the Collector under section 6 of the Pensions Act was held not to bar a second suit on the same cause of action, and Pethaperumal vs Murugandi(7) where rejection of the first suit for recovery of money for plaintiff 's failure (1) A.I.R. 1962 Ker.
(2) A. I.R. 1955 All.
372 (3) A.I.R. 1955 Raj. 166.
(4) A. I.R. 1961 Mad. 244.
(5) A.I.R. 1953 S.C. 53 (6) I.LR.
3 Born.
(7) 521 to produce succession certificate was held not to bar a second proceeding for the same relief.
We are, therefore, of the opinion that the previous order passed by the Prant Officer being merely an administrative order and not having been passed on the merits of the case, it did not, in the absence of a statutory prohibition, impair the power of the Collector to pass the impugned order on the merits of the matter under proviso to section 63 (1) of the Act on the grant of the requisite certificate under rule 36(f) of the Rules.
For the foregoing reasons, we allow the appeal, set aside the judgments and decrees passed by the Courts below and dismiss the respondents ' suit but in the circumstances of the ease without any order as to costs.
M.P. Appeal allowed.
| IN-Abs | The respondents agreed to sell their agricultural land to the appellants.
The title deeds and possession of the land were given to the appellants and both parties jointly applied to the District Deputy Collector, Thana Prant, under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, seeking permission for the sale.
The permission was refused on the ground that the intending purchaser had failed to obtain a certificate from the Collector under Rule 36(f) of the Bombay Tenancy and Agricultural Lands Rules 1956, that he intended to take to the profession of agricul ture and was capable of cultivating land personally.
The appellants thereafter obtained the requisite sanction from the Additional Collector, Thana, in spite of the respond ents ' non cooperation.
A suit by the respondents for de claring the agreement void in law was decreed by the Trial Court.
In appeal, the High Court opined that the Prant Officer 's refusal to permit the sate had rendered the agree ment impossible of performance.
Allowing the appeal, the Court.
HELD: (1) The parties are governed by section 56 of the Contract Act according to which a contract becomes void only if something supervenes after its execution which renders it impracticable or impossible of performance.
The order of the Prant Officer was not of such a catastrophic character.
[519A C] Satyabrata Ghose vs Mugneeram Bangur & Co. & Anr. ; ; Smt.
Sushila Devi & Anr.
vs Hari Singh & Ors.
and Tamplin Steamship Co. Lid vs Anglo Mexican Petroleum products Co. Ltd. , 403, applied.
Joseph Constantine Steamship Line Ltd. vs Imperial Smelting Corporation Ltd. at 168, referred to.
(2) The function which the Collector or the authorised officer discharges under the proviso to section 63(1) of the Bombay Tenancy and Agricultural Lands Act is an administra tive one and not judicial or quasi judicial.
[519G H] The State of Madras vs C.P. Sarathy & Anr.
AIR 1953 S.C. 53; A.K. Bhaskar vs Advocate General AIR 1962 Kerala 90; Shantanand vs Advocate General AIR 1955 All. 372; Shrimali Lal vs Advocate General AIR 1955 Raj. 166 and Abdul Kasim vs Md. Dawood AIR 1961 Mad.
similarity marked.
(3) The dismissal of a proceeding by an authority not on merits but merely on account of a formal defect will not attract the applicability of the general principles of res judicata and will not debar the authority exercising concur rent jurisdiction from entertaining the subsequent proceed ings for the same relief and passing proper orders on merits.
[520 F H] Putali Mehati vs Tulia I.L.R. and Pethaparu mal vs Murugandi , applied.
|
: Civil Appeals Nos.
1601 1609of 1968.
Appeals by Special Leave from the Judgments and Orders dated the 7th February, 1968 and 26th March, 1968 of the Mysore High Court at Bangalore in Regular Second Appeal No. 627 of 1964 and Regular Second Appeals Nos. 117 to 120 and 881 to 884 of 1967 respectively.
Civil Appeals Nos. 2402 2405/68 Appeals by Special Leave from the Judgment and Decree dated the 26th March, 1968 of the Mysore High Court in R.S.A. Nos.
881 884/67.
(Mrs.) Shyamla Pappu and Vineet Kumar for the Appellant in C. As.
1601 1609/68.
Narayan Nettar for the Appellant in CAs.
2402 2405/68.
H. Rizvi, B.B. Jawakley and K.P. Gupta for Respond ent No. 1 in C.A. 1601/68.
A.H. Rizvi, A.M. Mathur, B.B. Jawakley, K.P. Gupta and S.S. Hussain for Respondent No. 1 in C.As. 1602 1607/68.
(Mrs.) Shyamla Pappu and J. Ramamurthi for Respondents in C. As.
2402 2405/68.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of appeals by special leave, the first one out of which is directed against the judgment and decree dated February 7, 1968, of Somnath Iyer, J. of the Mysore High Court in R.S.A. No. 627 of 1964, and the rest whereof are directed against the common judgment and decree dated March 26, 1968 of M. Santhosh, another learned Judge of that Court in R.S.A. Nos. 120, 881, 117 to 119 and 882 to 884 of 1967 shah be disposed of by this judgment as they raised a common question as to the validi ty of orders of dismissal from service of persons who are arrayed as first respondents in all these appeals.
The facts leading to.
the appeals are: The first re spondent in each of these appeals was working as a conduc tor in the Road Transport Department of the erstwhile State of Hyderabad prior to the 285 coming into force of the .
On the reorganisation of the States with effect from Novem ber 1, 1956, consequent upon the coming into force of the said Act, the said respondents were allotted to the new State of Mysore but their employment as conductors was continued in the Depots which became parts of the Mysore Government Road Transport Department.
As a result of the disciplinary proceedings taken against them for certain cash and ticket irregularities alleged to have been committed by them, they were dismissed from service by the Divisional Controller of the Mysore Government Road Transport Depart ment in December, 1960.
The orders of their dismissal from service were affirmed by the General Manager of the Mysore Government Road Transport Department.
Thereupon they filed separate suits for declaration that the aforesaid orders of their dismissal from service passed by the Divisional Con troller were illegal, void and inoperative and they contin ued to be in service and were entitled to full pay.
The challenge by the said respondents against their orders of dismissal from service was based on the ground that their appointments having been made by the Superintendent, Road Transport Department of the erstwhile State of Hyderabad, who was the head of that Department, their dismissal from service could only be by the head of the Mysore Government Road Transport Department i.e. by the General Manager of that Department and consequently their dismissal by the Divisional Controller who was not the head of that Depart ment but a subordinate of his was in violation of the right guaranteed to them under Article 311 (1) of the Constitu tion.
The contentions of the first respondents regarding the invalidity of their dismissal due to the contravention of Article 311 (1 ) of the Constitution having ultimately prevailed and all the suits filed by them having been de creed in their favour, the State of Mysore and the Mysore Government Road Transport Corporation (hereinafter referred to as 'the Corporation) have come up in appeal to this Court.
Appearing in support of the appeals, Mrs. Shayamla Pappu, counsel for the appellants, has raised the following contentions: 1.
That as the post of the Superintend ent of the Traffic ' Department did not exist in the new State of Mysore and the Divisional Controller of the Mysore Government Road Transport Department was competent to appoint and dismiss servants of the category to which the first respondents (plaintiffs) belonged, the orders of their dismissal from service could not be held to have been passed in violation of Article 311 ( 1 ) of the Consti tution in view of section 116(2) of the . 2.
That in any event, as the General Manager of the Mysore Government Road Trans port Department confirmed on appeal the order of dismissal from service of the first re spondents, there was substantial compliance with the provisions of Article 311 of the Constitution.
286 3.
That the posts held by the first respondents not being civil posts under the State, there could be no question of violation of Article 311(1) of the Constitution.
That the discretionary relief of declaration of continuance in service could not and should not have been granted on the facts of the present suits.
That in view of the fact that the first respondents were dismissed from service before the establishment of the Corporation and they did not choose to become its employ ees by exercising the option given to them to serve under it, no decree could be passed against the Corporation.
The principal and pivotal question that arises for our consideration in those appeals is whether the impugned orders of dismissal from service were passed by the compe tent authority ? The answer to this question depends on the answer to the questions as to who could be considered to be the appointing authority in case of the first respondents and whether they were dismissed from service by that author ity or by an authority subordinate to it.
For a proper decision of this question, it is necessary to advert to sections 115(7) and 116 of the States Reorganisa tion Act, 1956, Article 311 (1 ) of the Constitution as also to contention No. 4 raised by the CorpOration in the State ment of Case filed by it before this Court and the admission made by the appellants in answer to the interrogatories served on them by the first respondent under Order 11 Rule 2 of the Code of Civil Procedure which are in these terms : "Section 115(7). "Nothing in this section shall be deemed to affect after the appoint ed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the condi tions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section ( 1 ) or sub sec tion ( 2 ) shall not be varied to his disad vantage except with the previous approval of the Central Government.
Section 116.
Provision as to continu ance of officers in the same posts.
(i) Every person who immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the Union or of an exist ing state in any area which on that day falls within another existing State or a new State or a Union territory shall, except where by virtue or a consequence of the provisions of this Act such post or office ceases to exist on that day continue to hold the Same post or office in the other existing State or new State or 287 Union territory in which such area is included on that day; and shall be deemed as from that day to have been duly appointed to such post or office by the Government of,or other appro priate authority in such State, or by the Central Government or other appropriate au thority in such Union territory as the case may be.
(2) Nothing in this section shall be deemed to prevent a competent authority after the appointed day, from passing in relation to any such person any order affecting his con tinuance in such post or office.
" Article 311, "(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed." Contention No. 4. "The High Court failed to see that the post of Superintendent was abolished and was not in existence and that, therefore, an authority of equal rank would be an authority competent to appoint and dismiss the employees.
" Admission. "On 1 11 1956, the General Manager of the Mysore Government Road Trans port Department was the head of the Mysore Government Road Transport Department and he was subordinate to none except the Government of Mysore.
The post of Divisional Controller is subordinate in rank to that of the General Manager.
" A bare perusal of sub section (7) of section 115 of the , reproduced above, makes it clear that nothing contained in that section could, after the appointed day, i.e., November 1, 1956, affect the operation of the provisions of Chapter 1 of of the Constitution which includes Article 311 thereof in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State and the conditions of service applicable immediately before the appointed day to any person who is allotted to another State could not be varied to his prejudice except with the previous approval of the Central Government.
Reference in this connection may be made to two decisions of this Court in M.B. Shukla & Ors.
vs State of Gujarat & Ors.(1) and N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore.(2) In the latter case, it was held by this Court that the effect of sub section (7) of section 115 of the is to preserve the power of the State to make rules under Article 309 of the Constitution but the proviso (1) ; (2) ; 288 imposes a limitation on the exercise of that power, the limitation being that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub sections (1) and (2) of section 115 of the Act.
In the view of the Court, the broad purpose underlying the proviso to section 115(7) of the Act was to ensure that the conditions of service of the aforesaid persons shall not be changed except with the prior approval of the Central Government i.e. before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government.
Now as pointed out by the Judicial Committee of the Privy Council in North West Frontier Prov ince vs Suraj Narain Anand(1) and by this Court in Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court(2) and State of Madhya Pradesh & Ors.
vs Shardul Singh(3), the expression 'conditions of service ' is an expression of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants.
It is also well settled that it is not possible by means of any legislative provision or rule to take away the guarantee provided by Article 311 (1) of the Constitution which lays down that no public servant shall be dismissed by an authority subordinate to that by which he was appointed and if any such legislative provision or rule lays down otherwise, it will clearly be ultra vires.
(See Rangachari vs Secretary of State(4)], North West Frontier Province vs Suraj Narain Anand (supra) and The State of Uttar Pradesh & Ors.
vs Babu Ram Upadhya(5).
It follows, therefore, that the protections including the constitutional protection enshrined in Article 311 (1)of the Constitution enjoyed by persons holding civil posts under the State like the first respondents prior to the coming into force of the could not, after the appointed day i.e. November 1, 1956, be taken away, whittled down or impaired by any legislative enactment or rule.
Sub section (2) of section 116 of the States Reorganisa tion Act, 1956 which is the sheet anchor of the first con tention raised on behalf of the appellants but on which no reliance was rightly placed on their behalf either in the court of the first instance or in the trial court is of no assistance to the appellants.
As observed by the learned Chief Justice while speaking for the Constitution Bench of this Court in M/s. Gammon India Ltd. & Ors.
vs Union of India & Ors.
(6), every clause of a statute is to be con strued with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject matter.
The interpretation of the words has to be by looking at the context, the collo cation of the words and the object Of, the words relating to the matters.
The words are not to be viewed (1)75 I.A. 343= A.I.R. 1949 P.C./12.
(2) [1955] 2 S.C.R. 1331, (3)[1970] 3 S.C.R. 302.
(4) 64 I.A. 40=A.I.R. , (5) ; (6) [1974] 1 S.C.C. 596. 289 detached from the context of the statute.
The words are to be viewed in relation to the whole context.
The expression 'competent authority ' occurring in sub section (2) of sec tion 116 of the Act cannot, therefore, be considered in isolation apart from the rest of the provisions of the Act.
It has to be read in conjunction with, construed and under stood as having the same meaning as the expression 'appro priate authority ' contemplated by sub section (1) of that secnon which in turn according to Article 311 (1) of the Constitution means the appointing authority or an authority equivalent to or coordinate in rank with the appointing authority.
The Constitution being the transcendental law, the legislature by enacting section 115(7) of the took care to see that the constitutional guarantee enshrined in Article 311 (1) of the Constitution which was available to the civil servants before the was not de stroyed or wiped away on their allotment to a new State.
That the construction placed by us on the expression 'compe tent authority ' is in consonance with the meaning and import of the word 'subordinate ' occurring in Article 311 (1) of the Constitution is apparent from a catena of decisions.
In N. Somasundaram vs State of Madras(1) where the petitioner was appointed as Deputy Jailor by the Inspector General of Prisons but the order of his dismissal from service was made by the Superintendent of the Jail, it was observed: "The competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Article 311 (1 ) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was ap pointed.
The principle would appear to be that it is the factum of the appointment of the civil servant who claims the guarantee, that determines the scope of the guarantee con ferred by Article 311 ( 1 ) .
" In Sobhagmal vs State(2) where the applicant was in formed in March, 1948 by the Revenue Secretary of the former State of Jaipur that he had been appointed as Inspector in the Customs and Excise Department and he was removed from service after departmental enquiry by the Commissioner, Customs and Excise, of the State of Rajasthan in July, 1952 and the order of his removal was confirmed on appeal by the Government of Rajasthan, Wanchoo, C.J. whilo holding that the order of removal could not be sustained said : "What Article 311 ( 1 ) provides is that the authority dismissing should not be subor dinate in rank to that by (1) A.I.R. 1956 Mad. 419.
(2) A.I.R. 1954 Raj.
207. 20 1458SCI/76 290 which the appointment was made.
The intention seems to be that the authority dismissing should be co ordinate in rank to the authority appointing, and not that.
in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank.
The dismissing authority should be at least coor dinate in rank with the appointing authority and should not be subordinate in rank.
Thus if a person is appointed by a Head of one department, and he is transferred to another department, he can only be dismissed or re moved by the Head of the other department.
" In Gurmukh Singh vs Union of India(1) where the peti tioner was appointed as an Assistant Sub Inspector of Police in the Delhi State Police Force by the Deputy Inspector General of Police who was at the relevant time, the head of the Delhi Police and the post of Deputy inspector Gener al afterwards ceased to exist and the two senior most officers in the Police Force at the relevant period were the Inspector General and the Senior Superin tendent of Police and the petitioner was dismissed by the order of the Senior Superintendent of Police who had been invested with the powers of Deputy Inspector General, Fal shaw, C.J. accepting.
the contention of the petitioner that his dismissal contravened Article 311 since the Superintend ent of Police even where he is designated as Senior Superin tendent is subordinate to the inspector General of Police observed: "The word 'subordinate ' in article 311 (1) of the Constitution means subordinate in rank and not with reference to the functions exer cised.
Consequently, when no officer of equal rank to the appointing officer is available then the order of dismissal or removal will have to be passed by an officer of superior rank.
In no circumstances can such an order be passed by an officer of lesser rank.
Any rule of statute which permits such an action, must be held to be ultra vires as infringing the provisions of Article 311 (1) of the Constitution." In Mahadev Prasad Roy vs
S.N. Chatterjee & Ors.(2) where the petitioner was appointed in 1928 as lino operator in the Government Press by the Superintendent of the Press and the Government order was passed on June 20, 1952 delegating the power of appointment and dismissal to the Deputy Superin tendent who initiated proceedings against the petitioner on a charge of theft and passed an order dismissing the peti tioner from service on September 16, 1953, Ramaswami, J. (as he then was) accepting the contention of the petitioner.
that he could be dismissed only by the Superintendent of the Government Press or by any higher authority and the order passed by the Deputy Superintendent was invalid and inopera tive observed: (1) Aau.
I.R. 1963 Punjab 370.
(2) A.I.R. 1954 Patna 285, 291 "The word 'subordinate ' in article 311 ( 1 ) must be properly construed to mean subordi nation in rank and not subordination of func tion; otherwise, the protection referred to in article 311 would be illusory." Similar view was expressed by a Full Bench of the High Court of Jammu & Kashmir in State of J & K and Anr.
vs Ray Mohammad & Ors.
In The State of U.P. & Ors.
vs Ram Naresh Lal(2), this Court held that the power can be conferred on an officer other than the appointing authority to dismiss a Government servant provided he is not subordi nate in rank to the appointing officer or authority.
In the instant cases, the first respondents were undeni ably appointed by the Superintendent of the Traffic Depart ment of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State.
On the coming into force of the on November 1, 1956, they were to be deemed by virtue of sub section (1) of section 116 of the to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coor dinate in rank with the aforesaid authority in the erstwhile State of Hyderabad.
The authority equivalent to or coordi nate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellant 's own admis sion as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'competent authority ' in terms of sub section (2) of section 116 of the .
The fact that there was no post of Superintend ent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of no consequence.
Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 115(7) of the .
The first contention urged on behalf of the appellants which runs counter not only to contention No. 4 raised by the Corporation in its Statement of Case before this Court and the admission made by it in answer to the aforesaid inter rogatories but also to section 115(7) and section 116 of the is, therefore, rejected.
The second contention urged on behalf of the appellants that as the General Manager of the Mysore Government Road Transport Department confirmed on appeal the orders of dismissal of the first respondents that should be considered as substantial compliance with the provisions of Article 311(1) of the Constitution is, in our judg (1) (2) 292 ment, devoid of substance.
The original order of dismissal of the first respondents being without jurisdiction and as such void and inoperative having been passed in contraven tion of the provisions of Article 311 ( 1 ) of the Consti tution, the order passed on appeal by the General Manager could not cure the initial defect.
In similar circum stances, the appellate order passed by the Director General of Prisons was not considered by the Madras High Court in N. Somasundaram 's case (supra) to remedy the invalidity of the original order passed by the Superintendent of Jails.
To the same effect is the decision of the Nagpur High Court in Provincial Government, Centrat Provinces and Berar vs Sham shut Hussain Siraj Hussain.(1) Again in Suraj Narain Anand vs The North West Frontier Province(2), it was held by the Federal Court that the rejection of appeal by a higher authority against dismissal is not equivalent to a dismissal by that authority itself, so as to satisfy the provisions of subsection (2) of section 240 of the Government India Act, 1935.
There is also no force in the third contention of coun sel for the appellants that the posts held by the first respondents not being civil posts under the State, there could be no question of violation of Article 311 (1) of the Constitution.
The argument seems to overlook that both at the time of coming into force of the and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State.
The fourth contention raised by counsel for the appel lant that the discretionary relief of declaration could not and should not have been granted by the lower courts on the facts of the present suits is also devoid of merit.
In Executive Committee of U.P. State Warehousing Corporation Limited vs Chandra Kiran Tyagi(3) and Executive Com mittee of Vaish Degree College, Shamli & Ors.
vs Lakshmi Narain & Ors.
(4) it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases : (i) appropriate cases of public servants who have been dismissed from service in con travention of article 311; (ii) dismissed workers under industrial and labour law; and (iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute This takes us to second limb of the fourth contention raised on behalf of the appellants.
While it is true that the relief of declaration is discretionary, it is well settled that it is only if the dis (1) A.I.R. 1949 Nagpur 118.
(2) (3) ; (4) ; 293 cretion is not exercised by the lower court; in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, that the order passed by the lower court can be reversed by the superior court.
Refer ence in this connection may usefully be made to a decision of the Privy Council in Charles Osenton & Company vs John ston(1) where the legal position was succinctly stated as follows : "There remains the question whether, assuming that in the circumstance of this case Tucker J. had jurisdiction to make the order of reference his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal.
So the respondent contends, while the appellants urge that, even if the discre tion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibili ty of appeal from an official referee 's finding of fact, and in view of the practica bility of the case being tried before a Judge without a jury.
The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of this discretion is well established and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge.
In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way.
But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to rele vant considerations such as those urged before us by the appellant.
then the reversal of the order on appeal may be justified.
This matter was elaborately discussed in the decision of this House in Evans vs Bartlam (1937) A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows: "It is clear that the Court of Appeal should not interfere with the discre tion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong.
But the court is not entitled simply to say that if the judge had jurisdic tion and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle.
The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.
Otherwise in interlocutory matters, the judge might be regarded as independent of supervision.
Yet an interlocutory order of the judge may (1) 294 often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal.
Thus in Gardner vs Jay , Bowen L.J. in discussing the discretion of the judge as regards mode of trial says: "That discretion, like other judicial discretions must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed.
" Bearing in mind the well settled principles regarding inter ference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents.
The fourth contention urged on behalf of the appellants is, therefore, overruled.
We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation, no decree could be passed against it.
The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Trans port Corporation and had transferred its rights and liabili ties to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.
All the contentions raised on behalf of the appel lants having failed, the appeals cannot succeed.
They are accordingly dismissed but in the circumstances of the case without any order as to costs.
P.B.R. Appeal dis missed.
| IN-Abs | Under section 115(7) of the , nothing contained in that section could, after the appointed day, i.e. November 1, 1956, affect the operation of the provisions of Chapter I of of the Constitution in relation to the determination of conditions of service of persons serving in connection with the affairs of the Union or any State.
The proviso provides that the condition of service applicable immediately before the appointed day to any person who is allotted to another State could not be varied to his disadvantage except with the previous approval of the Central Government.
The respondents, who were bus conductors in the State Road Transport Department of the former State of Hyderabad, were allotted to the State of Mysore consequent upon the reorganisation of the States in 1956 and they continued to hold the same posts under the Mysore Government Road Trans port Department.
They were dismissed from service by the Divisional Controller of Mysore Government Road Transport Department and the order of dismissal was affirmed by the General Manager of the Department.
The orders of dismiss al were challenged on the ground that since they were ap pointed by the Superintendent of the Traffic Department of the former State of Hyderabad, who was the Head of that Department they could be dismissed only by the General Manager of the Mysore State Road Transport Department and that their dismissal by the Divisional Controller, who was not the.
Head of the Department, was in violation of the right guaranteed under article 311 of the Constitution.
The High Court struck down the order of dismissal.
On appeal by the State it was contended that (1 ) since the post of Superintendent of Traffic Department did not exist in the State of Mysore and the Divisional Controller was the competent authority to appoint ' and dismiss servants of the category to which the respondents belonged, their dismissal was not incompetent in view of section 116(2) of the ; (2) There was substantial compliance with article 311 because the order of dismissal was confirmed by the General Manager; (3) Since the posts were not civil posts under the State, there was no violation of article 311; (4) The discretionary relief of declaration of continuance in service could not have been granted in this case; and (5) the respondents were dismissed before.
the establishment of the Corporation and since they did not exercise their option to join the Corporation, no decree could be passed against the Corporation.
Dismissing the appeals, HELD: The respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee in,Art.
311 of the Constitution read with s 115(7) of the State Reorgani sation Act.
That there was no post of Superintendent of Traffic under the Mysore.
Government Road Transport Depart ment is of no consequence.
1 (a) The protection enjoyed by persons holding civil posts under the State like the respondents prior to the coming into force of the Act could not after the appointed day, be taken away, whittled down or impaired by any legislative enactment or rule.
The broad purpose underlying the section was to ensure that the conditions of service of persons mentioned therein shall not be changed except with the prior approval of the Central Govt.
[288 E;B] (b) The expression 'condition of service ' is an expres sion of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants.
It is not possible by means of any legis lative provision.
or rule to take away the guarantee provid ed by article 311(1) and if any legislative provision or rule lays down otherwise, it will be ultra vires.
[288 D] M.D. Shukla & Ors.
vs State of Gujarat & Ors.
; ; N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore ; ; North West Frontier Province vs Suraj Narain Anand 75 I.A. 343; AIR 1949 P.C. 112; Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; ; State of Madhya Pradesh & Ors.
v Shardul Singh ; and Ranga chari vs Secretary of State 64 I.A. 40: AIR 1937 P.C. 27, followed.
(c) The expression 'competent authority ' in section 116(2) of the Act must be read in conjunction with, construed and understood as having the same meaning as the expression 'appropriate authority ' contemplated by section 116(1) and article 311(1) which means the appointing authority or an authority equivalent to or co ordinate in rank with the appointing authority, [289B] (d) The power to dismiss a Government servant from service can be conferred on an officer other than the 'a ppointing authority provided he is not subordinate in rank to the appointing officer or authority.
[291 B] The State of U.P. & Ors.
vs Ram Naresh Lal [1970] 3 S.C.R. 173, applied.
N. Somasundaram vs State of Madras A.I.R. 1956 Mad. 419; Sobhagmal vs State A.I.R , Gurmukh Singh vs Union of India A.I.R. 1963 Punjab 370; Mahadeo Prasad Rao vs
S.N. Chatterjee & Ors.
A.I.R. 1954 Patna 285 and State of Jammu & Kashmir and Anr.
vs Raj Mohammad & Ors.
approved.
In the instant case by virtue of section 116(1) the respondents were deemed to have been appointed from November 1, 1956 in the State of Mysore by the appropriate authori ty which could not be the authority other than the one equivalent to or coordinate in rank with the authority which appointed them in the erstwhile State of Hyderabad.
The General Manager of the Mysore Department could alone be considered to be the competent authority in terms of section 116(2).
[291 D] (2) The original order of dismissal being without jurisdic tion and as such void and inoperative, the order passed on appeal by the General Manager could not cure the initial defect.
[292 A] (3) Both at the time of coming into force of the and at the time of the passing of the impugned orders, the respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil, posts under the State.
[292 D] 4 (a) The declaration to enforce a contract of personal service 'can be granted (i) where a government servant is dismissed from service in contravention of the article 311; (ii) to dismissed workers under the industrial and labour law, and (iii) where a statutory body has acted in breach of a mandatory obligation imposed by a statute.
[292 G] Executive Committee of U.P. State Warehousing Corporation Limited vs Chandra Kiran Tyagi ; and Executive Committee of Vaish Degree College, ShamIi & Ors.
vs Lakshmi Narain & Ors. ; followed.
284 (b) It is only where the discretion is not exercised by the lower court in the spirit of the statute or fairly or hon estly or according to the rules of reason and justice that the order passed by the lower court can be reversed by the superior court.
[293 A] Charles Osenton & Company vs Johnston , referred to.
In the instant case, it cannot be said that the discre tion has been wrongly exercised in favour of the respond ents.
[294 C] (5) In view of the appellants ' application before the High Court, which was duly endorsed by the Government, that since the State had constituted the Road Transport Corpo ration and transferred the rights and liabilities to it, the decree, if any, could be passed exclusively against it, the Corporation cannot contend that no decree should have been passed against it.
[294 D]
|
Appeals Nos. 1682 1683/ 71.
(From the Judgment and Order dated the 14th May 1969 of the Calcutta High Court in I.T. Ref.
No. 60 of 1968) G.C. Sharma and R.N. Sachthey, for the appellant B. Sen, S.K. Banerice and P.K. Mukherjee, for respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The fiscal not the philosophical implications of Jesus ' pragmatic injunction 'Render to Ceasar the things that are Caesar 's, and to God the things that are God 's fall for jural exploration in these appeals by special leave, the appellant being the Union of India represented by the Commissioner of Income tax, West Bengal, and the Respondent, Sree Jagannathji and the subject matter the taxability of the deity Jagannathji by the State under the Income tax Act, 1922, beyond the admitted point.
To appreciate the exigibility issue, we have to flash back to 19th Century Bengal and the then prevailing societal ethos of affluent Hindu Piety, and we find ourselves in the spir itual legal company of Raja Rajendra Mullick, at once holy and wealthy, who, in advancing years, executed a comprehen sive will to promote his cherished godly wishes and to provide for his secularly dear cause and near relatives.
The construction of this testamentary complex of disposi tions and the location of its destination are the principal exercises in these appeals.
485 Raja Rajendra Mullick Bahadur of Calcutta executed his last will and testament on 21 February 1887.
While the author of the will was a Bengali brahmin of the last cen tury, the draftsman of the document was John Hart, an Eng lish solicitor.
While the author 's wishes are usually transmitted into the deed by the draftsman, the diction and accent are flavoured by the draftsman 's ink.
So it happens that this will represents pious Bengali wishes and disposi tions but draped in an English Solicitor 's legalese.
The Court 's function in such an ambiguous situation is to steer clear of the confusion imparted by the diction and to reach the real intendment (of the testator).
Such an essay in ascertaining the true intent of Raja Rajendra Mullick if fraught with difficulties and our guideline has to be to pick it up from the conspectus of clauses rather than from particular expressions or isolated features.
Only the totality tells the story of the author 's mind as he unbur dened himself of his properties for causes and purposes dear to his heart.
The Court 's discerning loyalty is not to the formalistic language used in drawing up the deed but to the intentions which the disponer desired should take effect in the manner he designed.
This hack drop of observations made, we proceed to a broad delineation of the actual provi sions.
The munificent testator had enormous estates, lavish charity, piety aplenty and a large family.
So he trifurcat ed his assets as it were, provided for religious objects, eleemosynary purposes and members of his family.
The last was distinctly and separately dealt with and we are not concerned with the bequests so made.
But the first two were more or less lugged together and ample properties earmarked therefore.
How did he engineer into legal effect these twin purposes ? Did he create an absolute debutter of these properties, totally dedicating them to the deity whose devotees he and his father were, coupled with several direc tions, addressed to the shebaits, for application of the income for performance of stated pujas, execution of public charitable projects and payment of remuneration for sheba plus liberal grants and facilities to the sons and widows of sons who were objects of his bounty? Or did he really create a trust in the sense of the English law vesting the whole estate in trustees saddled with obligations to expend the income for enumerated items, godly and philantrophic, creating but a partial debutter? This is the key question calling for adjudication but an alternative but interlaced issue also arises.
Assuming that a total debutter had been created, did the will contain directions for expenditure which siphoned off the income, as it accrued, for specified objects and entities in such manner that by such over riding diversion at the source, such income did not get into the hands of Lord Jagannath qua His income but reached Him merely as collector of.
those receipts to be disbursed for meeting those paramount claims and charged for those des tined uses ? Or could it be the true meaning of the clauses that the whole income was to be derived by the deity but later to be applied by the human agencies representing Him for fulfiling objects, secular and sacred? A skeletal picture of the complex of provisions of the will has to be projected now for a better understanding of the pros and cons of 486 the controversy.
The will opens with the words: 'I hereby dedicate and make debutter my Thakoorbaree ' and mentions a mansion which is to be the abode of his God. 'I hereby give, dedicate and make dabuttar all the jewels. hereto fore used, for the worship of the Thakoors. is another racital whereby valuables are dedicated.
These are for direct use and both the Lord 's mansion and the Lord 's adorn ments yield great spiritual bliss but no secular income.
Prima facie, the language is unmistakable and a full dedica tion and, argues Shri Sharma for the Revenue, the creation of absolute debutter is an unchallengeable inference.
Equally indisputable is the character of the last of be quests to his sons (save one who has been disinherited) and widows of deceased sons and these are admittedly out of the area of dispute before us.
But in between lies the estate (including securities) which yields high income and is disposed of in terms which lend themselves to contrary constructions, marginal obscurity and conceptual mix up of ideas borrowed from English and Hindu law.
'I do hereby give, dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties ' so run the.
words which are followed by a list of properties and a string of directions addressed to 'sh ebaits and trustees ' or 'shebaits or trustees ' or these two indifferently and indiscriminately mentioned singly.
He even directed a board of trustees to be constituted in the event of male heirs failing, to take over shebaitship and execution of the trusts and here and there referred to trusts under the deed.
Nor were all the incomes to be devot ed to pooja.
His cultivated and compassionate mind had many kindly concerns and finer pursuits.
The enlightened donor appears to have had an aristocrat ic and aesthetic flair for promoting the joy of life and a philanthropic passion to share it, even posthumously, with the public at large.
His charitable disposition seems to have overpowered his love of castemen and his kindness for living creatures claimed a share of his generosi ty.
These noble and multiple instincts persuaded him to make an art collection which could be reckoned as among the best an individual could be proud of anywhere in the world and these paintings and sculptures, he directed, shall be kept open for public delight, free of charge.
He main tained a glorious garden which he wished should be kept in fine trim and be hospitable for any member of the public who liked to relax in beautiful surrounds.
His compassionate soul had, in lofty sentiment of fellow feeling, collected birds and non carnivorous animals.
But, after him, the aviary and meanagerisa were to be taken care of and lovers of birds and animals were, according to his testamentary direction, permitted to seek retreat and pleasure among there natural environs.
Of course, he rewarded his sons and widows sumptuously, the lay out on the rituals of wor ship consuming but a portion of the total income.
At this stage, the litigative journey may be sketched to indicate how the dispute originated, developed and gained access to this Court, The story of this tax entanglement began nearly two decades ago with the I.T.O. issuing notices and the assessee deity responding with 'nil ' returns under section 22(2) of the Indian Income tax Act, 1922 for the 487 assessment years 1956 57 and 1957 58.
A portion however was, by legitimate concession of the Income Tax Department, carved out of the total income as non taxable.
According to the High Court.
"When the proceedings for the assessment year 1955 56 were pending before the Income Tax Officer, the assessee had flied an applica tion under article 226 of the Constitution of India and had obtained an interim stay against the said proceedings.
It appears that on the 9th October 1961 in terms of the settlement arrived at between the Income Tax Department and the assessee the interim stay of proceed ings was vacated.
It was recorded in the said order that part of the income of the assessee which would be proved before the Income Tax Authorities to have been applied in connection with (a) feeding of the poor, (b) subscription to other charities enuring for the benefit of the public would be exempt ed under section 4(3)(i) of Indian Income tax Act, 1922.
" We regard this stand of the Revenue as correct in the light of the provisions of s.4(3) (i) and hold, in limine, that whatever the outcome of the contest, the amounts spent on poor feeding and other public charitable purposes are out side the reach of the tax net and are totally exempt.
We may, in fairness, state here that counsel for the Revenue, Shri Sharma, rightly agreed that the correct legal position, on a sound understanding of s.4(3) (i) of the Act, was that these charitable expenditures were totally deductible from the computation for fixing the tax.
Let us continue the later developments.
For assessment for the year 1956 57 the Income tax Officer was of the opinion, on the construction of the said will, that besides directions for spending amounts on charitable objects, the will had also provided for payment of certain fixed allow ances to the acting shebaits as well as the widows of the deceased shebaits, maintenance of horse drawn carriages and motor cars for the use of the shebaits, medical aids to the shebaits, and the members of their families, expenses on account of Srardh caremony of the ancestors of the shebaits and other private charities.
On behalf of the assessee it was claimed before the ITO that the remuneration the trustees and the allowances to the widows of the deceased trustees as provided in the will created a charge on the income of the Trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hands of the trustees.
The ITO rejected that contention.
lie held that reading the will as a whole it was clear that the remuneration to the shebaits and the allowances to the widows were merely applications of the trust income and as such not deductible.
According to the ITO, under the will, the shebaits and trustees were to, collect the income of the whole debutter property in the first instance and after paying the government revenues and taxes and rates and other outgoings, perform the puja and the other ceremonies for the worship of the family deity and therefore spend amounts on charitable and public purposes and lastly to pay the remuneration, allowances and 1546SCI/76 488 private donations.
The ITO therefore determined the income of the trust estate under sections 9 and 12 of the Indian In come.
Tax Act, 1922 and computed income from property at Rs. 1,94,377/ and income from other sources at Rs. 97,248 making a total of Rs. 2,91,625/ .
From the above he deducted the amounts spent on charitable objects such as feeding of the poor, maintenance of art gallery and manager ie for birds and non carnivorous animals.
A sum of Rs. 1,32,023/ was subjected to tax for the assessment year 1956 57.
The ITO followed the same principle for the assessment year 1957 58 and determined the assessable income at Rs. 1,06,067/ .
The assessee preferred appeals before the Appellate Assistant Commissioner, who passed a consolidated order on November 25, 1963 dismissing the assessee 's appeals on all the grounds.
On appeal to the Tribunal, a full legal debate followed and, while the Revenue won substantially, some items more were held exempt on the holding that the direction contained in the will for the expenditure on the performance of Sradh and other ceremonies for the spiritual benefit of the testa tor and his ancestors must also be held to be obligations created by the testator which the trustees or the shebaits were obliged to discharge before applying the income for the benefit of the deity.
Both parties moved the Tribunal for referring certain questions of law under section 66( 1 ) and the sequel was a reference of two questions at the instance of each.
The four questions may be set out as the starting point of the discussion: "( 1 ) Whether on a proper construction of the will of the late Raja Rajendra Mullick dated 21St February 1887, the Tribunal was fight in rejecting the assessee 's claim that the only incomes which could be subjected to income tax in the hands of the deity Sri Sri Jagannath Jee are the beneficial interests of the said deity under the terms of the will as represented by the expenses incurred by the shebaits for the daily Seva Puja of the deity and the performance of the various religious ceremonies connected with the said deity as mentioned in the will ? (2) If the answer to the above question be in the positive, whether on the facts and in the circumstances of the ease and on a proper interpretation of the terms of the will of the late Raja Rajendra Mullick Bahadur, the Tribu nal was right in holding that the expenses incurred for payment of remuneration to the shebaits, and the monthly allowances paid to the widows of the deceased shebaits, as also the expenditure incurred for maintaining horses, carriages or motor cars for the use of shebaits concerned and the annual value of such part of the debutter property as is being used by the shebaits and their families for the purpose of their residence, all in terms of the aforsaid will, could be included in the total income of the assessee in this case ? (Questions referred by assessee) 489 (3) Whether, on the facts and in the circum stances of the case and on a proper construc tion of the will of Raja Rajendra Mullick executed on the 21st February 1887 the Tribu nal was right in holding that the surplus of the income of the estate after defraying the expenses mentioned in the said will was held in trust for charitable purposes and was thus exempt from taxation under s.4(3) (i) of the Indian Income tax, Act 1922 ? (4) Whether, on the facts and in the circum stances of the case and on a proper construction of the aforesaid will the tribunal was right in holding that the amounts spent for performing Sradh and other ceremonies for the Spiritual benefit of the testator as well as subscriptions and dona tions to charitable societies and for charitable purposes were diverted by an over riding title and was accordingly to be exclud ed from the total income of the Deity ?" Questions referred by the CIT) The High Court, on a meticulous considera tion of the entire will, decided against the Revenue on the spinal issue and took the view that "reading the will as a whole we are of the opinion that the entire beneficial interest in the properties did not vest in the assessee deity.
The assessee deity was not the owner of the properties.
Therefore the only income which could be subjected to income tax in the hands of assessee would be the beneficial interest of the said deity under the will, which would be expenses incurred for the seva puja of the deity and for the various reli gious ceremonies connected with the said deity and the value of the residence of the deity in the Temple.
" The back of the State 's contention was thus broken but, even though vanquished, by special leave it.sought to agitate in appeal the case that the testator had created an absolute debutter of the whole estate, and not a trust with estate vested in the trustees, that the directions given to the 'shebaits and trustees ' were mere mandates for application of the income in the hands of the deity and not over tiding diversion at the source and so all the receipts, save what had been excluded by the. officer, were exigible to tax.
Although it may not be strictly pertinent as a circum stance to spell out the intention of the testator, it may be of value as background material to have a sample break up of the figures of expenditure laid 490 out in fact in one of the assessment years.
We give the actuals for 1956 57: Rs. (1)Expenses incurred for the poojas specified for the will 4,637/ (2)The money laid out on feeding the poor 78,295/ (3)The cost of maintaining the art gallery 36,963/ (4) Upkeep of the aviary and menagerie 13,263/ (5) Cost of keeping the garden trim 2,979/ (6) Other miscellaneous charges 4,014/ (7) Expenses laid out on the shebaits and trustees, their residence and main tenance of the horse drawn carriages etc 66,254/ It is fair to comment that, even making allowance for annual variations, price fluctuations and change in circum stances, the pujas consume but a small fraction, that public charitable purposes bulk prominently in the budgeted ex penditure and that the sums spent on the 'shebaits and trustees ' are liberal enough to exceed prudent reward for services.
To set the record straight, it must be stated that a preponderant part of the income was spent on general public charitable causes like poor feeding, art gallery, aviary, menagerie and keeping a garden.
Together with the cost of the rituals the budget was dominently religion charitable.
These facts have no bearing on the construc tion of the will but invests the perspective with a touch of realism.
We may now tackle the crucial problem in the case the decoding of the will to discover the repository of the gift.
Did the testator create an absolute or partial debutter? Or was there no dedication to the idol but a vesting of the legal estate in the trustees (in the sense of the English law) with figuciary obligations to expend for specific purposes.
Shree Jagannathjee ranking as one among the recipients of his benefactions ? The use of words like 'trusts ', 'shebaits and trustees ' has lent muscle to this logomachic exercise but we have to push aside the English hand to reach at the Indian heart.
The principles governing the situation are those which rulings of courts, imbibing the Indian ethos, appreciating the Hindu sacred sentiments and applying the law of reli gious and charitable trusts gathered from ancient texts, have crystallised into an informal code.
The passage of decades after the enactment of the Constitution has not succeeded in persuading Parliament into legislative action for making a secular code except of some limited extent governing the subject of Indian charitable trusts.
And this unnoticed parliamentary procrastination has com pelled the courts to dive into hoary books and ' vintage case law to ascertain the current law.
We will therefore navigate, with this ancient mariner 's compass, although we have the advantage of an authoritative work in B.K. Mukher jea on Hindu Law Religious and Charitable Trusts, relied on by counsel on both sides.
491 Two paramount background considerations of assistance to decipher the intention of the testator, which have appealed to us, may be mentioned first.
We are construing the will of a pious Hindus aristocrat whose faith in ritual perform ances was more than matched by his ecumenical perspective, whose anxiety for spiritual merit for himself and his manes was balanced by a universal love and compassion.
Secondly, the sacred sentiment writ large in the will is his total devotion and surrender to the family deity Sree Jagannath Jee.
It is easy to see that, in formal terms, the author makes a dedication to Sree Jagsmath Jee and calls the properties debutter.
But Shri B. Sen, for the respondents,.contests the finality of such a verbal test and counters it by reliance on expressions like 'shebaits and trustees ' and 'trusts ' and urges that there are no clear words of vesting so far as the second category of properties is concerned.
It is trite but true that while the label 'debutter ' may not clinch the legal character, there is much in a name, fragrant with profound sentiment and expressive of inner dedication.
It looks like doing violence to the heart of the will if we side step Sree Jagannath Jee as the divine dedicatee, down grade him to the status of but one of the beneficiaries and; by judicial construction, transmit the sanctified estate into human hands as the legal owners to distribute the income, one of the several objects being doing pujas prescribed.
The will, right in the forefront, declares: 'I hereby dedicate make debutter ', 'I do hereby dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties. ' 'I hereby give, dedicate and make debutter all the jewels . to the said Thakoor Sree Sree Jagannathjee '.
These solemn and emphatic dedicative expressions cannot be wasted words used by an English Solicitor but implementatory of the intention of the donor whose inmost spiritual commitment, gathered from the many clauses, appears to be towards his family Thakoor.
Of course, if there are the clearest clauses striking a contrary note and creating but a partial debut ter, this dedicative diction must bow down.
The law is set down thus by B.K. Mukerjea: "The fact that property is ordinarily de scribed as Debutter is certainly a piece of evidence in favour of dedication, but not conclusive.
In Binod Behari vs Manmatha (21 C.L.J. 42) Cox J. observed as follows : "The fact that the property is called Debutter is a doubtless evidence in the plain tiff 's favour but it does not relieve them of the whole burden of proving that the land was dedicated and is inalienable." (p. 131) Though inconclusive it carries weight in the light of what we may call the mission of the disposition which is inspired by devotion to 'my Thakoor ' and animated by a general reli gious fulfilment.
It must be 492 remembered that the donor was not tied down by bigotry to performance of pujas, important though they were.
A more cosmic and liberal view of Hinduism informed his soul and so in his declaration of dedication to Sree Jagannathjee he addressed to the managers many directions of a broadly religious and charitable character.
His injunction to feed the poor was Narayana Seva, for worship of God through service of man in a land where the divinity in daridra narayana is conceptually commonplace and, while it is overt ly secular, its motive springs from spiritual source& It is religion to love the poor.
Likewise, his insistence on the aviary and the menageries and throwing open both to the people to see and delight is not a mundane mania but has deeper religious roots.
Hinduism worships all creation: (peace be unto all bipeds and even so to all quadrupeds)).
Indeed, the love of sub human brethren.
is high religion.
For "He prayeth best, who loveth best All things both great and small, For the dear God who loveth us, He made and loveth all." (Coleridge, in Ancient Mariner) From the Buddha and Mahavira to St. Francis of Assissi and Gandhiji, compassion for living creatures is a profound religious motivation.
The sublime mind of Mullick was obvi ously in religious sympathy with fellow beings of the lower order when he should this tenderness to birds and beasts and shared it with the public.
The art gallery too had link with religion in its wider connotation although it is plainer to regard it as a gesture of aesthetics and charitable disposition.
God is Truth, Truth is beauty, beauty Truth.
A thing of beauty is a joy for ever.
In fact, for a highly elevated Indian mind, this conceptual nexus is not far fetched.
The garden and the 1love of flow ers strike a psychic chord at once beautiful and religiously mystical, as any reader of Wordsworth or other great poet in English or Sanskrit will agree.
The point is that the multiform dispositions had been united by a spiritual thirst and, if read in their integrality, could be desig nated religions cum charitable.
In sum, the primary in tendment was to dedicate as debutter and to direct fulfil ment of uplifting religions and para religious purposes, the focus being on worship of Sree Jagannathjee and the fall out some subsidiary, yet significant, charitable items.
The finer note struck by the felt necessities of his soul was divinised and humanised, the central object being Sree Jagannathji, the Lord of the Universe.
Of course Sri Sen submits that verbalism cannot take us far and the description of debutter cannot be decisive because the magnitude of the expenses on the various items, apart from other telling clauses 493 which will presently advert to, was indicative not of a dedication to the idol but of the general charitable bunch of dispositions to be carried out through the agency of trusteeship in the sense of the English Law.
For instance, he argues that feeding the poor, maintenance of the art gallery, menagerie, aviary and gardens and fulfilment to the other ' charities have little to do with idol qua idol.
Moreover, making a substantial margin for the remuneration of the Shebaiti, there is some clear excess in favour of donor 's family members in the amounts to be paid or spent on behalf of the shebaits cum trustees.
These are strongly suggestive of a non debutter character, especially because the cost of the poojas makes but a small bite on the total income.
He reinforces the submission by many other points which may be mentioned at this stage.
He states that the donor, if he meant a straightforward case of debutter, would have confined himself to the expression 'shebaits ' but there was a sedulous combination of 'shebaits ' and or 'trustees ' and there was also reference to trusts in some places.
Provision for the heirs, for the residence of the shebai tee 's families, the norse carriages and the like also do not smack of debutter.
A specification of the minimum age of 18 to become shebaits and trustees also savours of trusteeship rather than shebaitship.
Appointment of a Board of Trus tees on shebaits failing in succession throws clear light on the creation of a trust in the English sense rather than a debutter in the Hindu sense.
Again, shebaitship is property and if what is created is only shebaitship, not trustee ship, how can the testator exclude females, insist on 18 years of age and prescribe a course of succession not quite consistent with Hindu law? Does this not also point towards trusteeship and away from debutter? In any case, a fair conclusion, according to Sri Sen, would be to regard the appointees as shebaits for purposes of pooja and management of the shrine and as trustees for the other substantial purposes.
Which means that there is a partial debutter and the vesting of the estate in the trustees.
There if other evidence to be gleaned from the tenor of the will to which our attention has been drawn by Sri Sen with a view to emphasize that public charities of a secular character, construction of buildings for residence, for feeding the poor, repairs and maintenance of a miscellaneous sort plus detailed directions towards all shebaits and trustees are telling against absolute debutter.
Since the expenses for the poojas cover only a small part of the total income, a correct reading of the will may be to hold that the corpus vests in the trustees, subject to an interest being created in the deity to the extent of the share of the income reasonably necessary for the pooja and residence of the Lord.
We see force in these submissions and shall deal with them presently.
Before that we may state the correct legal approach as set out by Mukherjea in his Tagore Law lectures: "Even when a deal of dedication is not ficti tious or benami the provisions of the deed might show that the benefit intended for the deity was very small or of a nominal charac ter.
If the gift to the deity is wholly illu sory there is no Debutter 494 in the eye of law, but there are cases where a question arises on the construction of the document itself, whether the endowment created was only a partial one meaning thereby that the dedicated property did not actually vest in the idol, but the latter enjoyed a charge upon the secular property of the founder, given to his heir or other relations, for the expenses of its worship.
I will discuss this matter separately under the second head.
I may only state here that where there is an out and out dedication to an idol, the reservation of a moderate portion of the income of the endowed estate for the remuneration of the shebait would not invalidate the endowment either as a whole or to the extent of the income so served.
In Jadu Nath vs Thakur Sitaramji (44 I.A. 187) there was a dedication of the entire property of the founder to the idol, and the direction given was that half of the income was to be applied for the worship of the idol and repairs of the temple, and the other half was to go for the upkeep of the managers.
Their Lordships of the Judicial Committee in holding the gift as a valid Debutter observed as follows : "The deed ought to be read just as it appears, and there is no reason why it should not be so construed as meaning simply what the language say% a gift for the maintenance of the idol and the temple, under which the idol is to take the property, and for the rest, the family are to be the administrators and manag ers and to be remunerated with half the income of the property.
If the income of the proper ty had been large a question might have been 'raised, in the circumstances as throwing some doubt upon the integrity of the settlor 's intentions, but as the entire income is only 800 rupees a year, it is obvious that the payment to these ladies is of the most tri fling kind and certainly not an amount which one could expect in a case of this kind.
" Following this decision it wag held by the Calcutta High Court in Chandi vs Dulal (30 CMN 930) that a provision for remuneration of the Shebaits with half of the income of the Debutter property (which proved to be small sum)as well as their residence in the Thakur bari were quite compatible with an absolute endowment.
You should bear in mind in this connection, that when a property is absolutely dedicated to a deity, it is not necessary that every farthing of the income should be spent for the worship of the idol itself.
It is quite within the competence of a settlor to provide that the surplus income should be spent for the charitable objects e.g. feeding o] the poor.
Sadavart or entertainment of pilgrims and guests is often found to be an adjunct of a public Debutter.
In the case of Monohar Mukherji vs Bhupendra Nath Mukherjee FB) there was a provision in the deed of dedication that the surplus income of the endowment should be spent upon maintenance of childless widow 495 of the family and construction of roads and excavation of the tanks for public use, and these directions, it was held, did not make the dedication incomplete.
(pp. 129 130) (Underscoring supplied with a pur pose) The demarcating line between absolute and partial debutter is drawn by the author thus: "Where the dedication made by settlor in favour of an idol covers the entire benefi cial interest which he had in the property, the Debutter is an absolute or complete Debutter.
Where however, some proprietary or pecuniary right or interest in the property is either undisposed of or is reserved for the settlor 's family or relations, a case of partial dedication arises.
In a partial dedication the deity does not become the owner of the dedicated property but is in the posi tion of a charge holder in respect of the same.
A charge is credited on the property and there is an obligation on the holder to apply a portion of the income for the reli gious purposes indicated by the settlor.
The property does not become extra commerci um like Debutter property, strictly Speaking so called, but is alienable subject to the charge and descends according to the ordinary rules of inheritance.
It can be attached and sold in execution of decree against the holder.
Whoever gets the property however takes it burdened with the charge or reli gious trust.
In Dasaratha Rami Reddy vs Subba Rao ; it was observed by the Supreme Court that the question whether a dedication was complete or partial must depend on whether the settlor intended that his title should be completely extinguished and transferred to the trust, that in ascer taining that intention regard must be had to the terms of the document as a whole and that the use of the word 'trust ' though of some help in determining such intention was not decisive of the matter.
It sometimes happens that the settlor merely provides for the perfomance of certain religious services or charities from out of the income of properties specified, and the, question arises whether in such cases the specified properties themselves form the subject matter of dedication.
Where the entire income from the properties or a sub stantial portion thereof is directed to be applied, or is required for such purposes, then the property itself must be held to have been absolutely dedicated for those purposes.
Where, however, after applying the income for the purposes specified, there still remains a substantial portion thereof undisposed of, then the dedication must be held to be partial and the properties 496 will continue to be held in private ownership, subject to a charge in favour of the charities mentioned? ' (p. 134 135) Mr Sen cited several decisions which are more appropriate to a contest between shebaits and heirs and do not directly bear on rival considerations decisive of the absolute or partial nature of a debutter and so we do not burden this judgment with those many citations but may refer to a few.
In Har Narayan(1) the Judicial Committee was dealing with a case where a dispute was between the heirs and the shebaits and it was held that "although a will provides that the property of the testator 'shall be considered to be the property of a certain idol, the further provi sions such as that the residue after defraying the expenses of the temples 'shall be used by our legal heirs to meet their own expenses ', and the circumstances, such as that in the ceremonies to be performed wore fixed by the will and would absorb only a small proportion 01 the total income, my indicate that the intention was that the heirs should take the property subject to a charge for the perform ance of the religious purpose named.
" Granting the creation of a debutter, the telling tests to decide as between an absolute and partial debutter cannot necessarily be gathered from this ruling.
On the other hand, this very ruling emphasized that a substantial part of the income was to go to the legal heirs to meet their own expenses and that circumstances deflected the decision.
Moreover.
Lord Shew of Dunfermline, there observed: "The case (jadu Nath Singh: 44 I.A. 187) merely illustrates the inexpediency of laying down a fixed and.
general rule applicable to the construction of settlements varying in terms and applying to estates varying in situation." (p. 149) The observations of this Court in Charusila Dasi(2) a case dealing with the question of legislative competency on the constitutionality of the Bihar Hindu Religions Trusts Act seem to suggest that the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed were consistent with the creation of a religious and charitable trust.
The crux of the matter, agitated before us, is the determination of the true intention of the testator and this has to gathered from the name used, the recitals made and the surrounding circumstances.
From a bestowal of reflec tion on the subject and appraisal in the light (1) L.R. 48 I.A. 143.
(2) [1959] Supp.2 S.C.R. 601.
497 of the then conditions, sentiments and motivations of the author, we are inclined to the view that Raja Mullick, the maker of the will, dedicated as debutter to his Maker and Thakoor the entire estate, saddling the human agents or shebaits with duty to apply the income for godly and near godly uses and for reward of the shebaits and for their happily living.
Of course, he had horses and carriages and other items to make life enjoyable.
Naturally, his behest covered the obligation to keep these costly things in good condition and regular use.
The impact on the mind, if one reads the provisions reclining in a chair and lapsing into the mood of the maker of the will, is that he gave all he did to his Thakoor, as he unmincingly said, and thus dedicated to create an absolute debutter.
The various directions are mostly either religious or philanthropic but not so remote as to be incongruous with dedication to an idol or creation of a debutter.
The quantum of expenditure on the various items is not so decisive of the character of the debutter as absolute or partial as the accent on and subjective importance of the purposes, in the setting of the totality of commands and cherishments.
His soulful wishes were for the religious and charitable objects and the other directions were secondary in his estimate.
Not counting numbers nor computing eXpenses, marginally relevant though they are, but feeling the pulse of his passion to do godly good and promote public delight, that delights the spirit of his testament.
Essentially, Raja Rajendra Mullick gave away his estate to his Thakoor and created an absolute debutter.
He obligated the managers of the debutter with responsibility to discharge certain secular but secondary behests including benefit to family members, their resi dence and transportation.
How then do we reconcile such a conclusion with the many points forcefully urged by Shri B. Sen and averted to earlier ? We think that the expressions 'shebaits and trustees ', 'shebaits or trustees ', 'shebaits ' 'trustees ', and 'trusts ' were indiscriminately used, indifferent to sharp legal semantics and uncertain of the precise import of these English legal terms in the Indian context.
More, an English solicitors familiar legal diction super imposed on an unfamiliar Indian debutter, rather than an exercise in ambiguity or deliberate dubiety, explains the odd expres sions in the will.
The author merely intended to dedicate to Sree Jagannathji and manage through shebaits.
Of course, the reference to the Board of Trustees, the majority vote and the like, strike a discordant note but the preponderant intent is what we have held it is.
The magnitude of the expenditure on the items, secular and sacred, may vaguely affect the conclusion but cannot conclusively decide the issue.
The religious uses related to Sree Jagannathji, the Lord of the Universe, cannot be narrowly restricted to rituals but must be spread out to embrace universal good, especially when we read the mind of a Hindu highly evolved and committed to a religion whose sweep is vasudhaiva kudumbakam (All creation is His family).
The blurred lines between the spiritual and the secular, in the context of this ease, do not militate against our con struction.
We are not unmindful of the stress Shri B. Sen placed on the passage in B.K. Mukherjea which we may extract: 498 "But it happens in some cases that the property dedicated is very large, and the religious ceremonies which are expressly prescribed by the founder cannot and do not exhaust the entire income.
In such cases some portion of the beneficial interest may be construed as undisposed of and cannot but vest as secular property in the heirs of the founder.
There are cases again where although the document purports, on the face of it, to be an out and out dedication of the entire property to the deity, yet a scrutiny of the actual provisions reveals the fact that the donor did not intend to give the entire inter est to the deity, but reserved some portion of the property or its profits for the benefit of his family relations.
In all such cases the Debutter is partial and incomplete and the dedicated property does not vest in the deity as a juridical person.
It remains with the grantees or secular heirs of the founder subject to a trust or charge for the reli gious uses.
The earliest pronouncement of the law on the subject is to be found in the decision of the Judicial Committee in Sonatun Bysack vs Juggutsoondaree (8 M.I.A. 66) which was followed and applied in the subsequent case of Ashutosh vs Durga (L.R. 6 I,A. 182) ." Sonatun Bysack, referred to by the learned author, dealt with a case where a Hindu, by his will, gave his whole estate to the family, deity; he directed that the properties should never be divided but that the sons and grandsons in succession would enjoy 'the surplus proceeds only '.
There were other kindred directions.
The Judicial Committee held that the bequest to the idol was not an absolute gift: "*A reference to the second, third and fifth clauses of the will ' so runs the judg ment 'leads us to the conclusion that 'al though the will purports to begin with an absolute gift in favour of the idol, it is plain that the testator contemplated that there was to be some distribution of the, property according as events might turn out; and that he did not intend to give the proper ty absolutely to the idol seems to their Lordships to be clear from the directions which are contained in the third clause, that after the expenses of the idol are paid, the surplus shall be accumulated; and still more so from the fifth 'clause by which the testa tor has provided for whatever surplus should remain out of the interest of the property, the expenses of the idol being first deducted.
It is plain that the testator looking at the expenses of the idol was not contemplating an absolute and entire gift in favour of the 'idol '.
On a construction of the entire will it was held that there was a gift to the/our sons of the testator and their offspring in the male line as a joint family, and the four 'sons were entitled to the surplus of the property after providing for the performance of the ceremonies and festivals of the idol and the provisions in the will for mainte nance.
" (p 136 137, Mukherjea) 499 The cardinal point to notice is what Pande Har Narayan (48 I.A. 143 emphasized: "The question whether the idol itself shall be considered beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a ques tion which can only be settled by a conspectus of the entire provisions of the will." (p. 137, Mukherjea) If, on a consideration of the totality of terms, on sifting the more essential from the less essential purposes, on sounding the depth of the donor 's wishes to find whether his family or his deity were the primary benefici aries and on taking note of the language used, if the vesting is in the idol an absolute debutter can be spell out.
So considered, if the grant is to the heirs with a charge on the income for the performance of pujas, the opposite inference is inevitable.
Before us, there is no dispute between the heirs and the idol.
The point mooted is about the creation of an English trust, an unconventional legal step where the dedication is to a deity.
On a full study of the will as a whole, we think that this benignant Bengalee 's testament, draped though in Victorian verbal haberdasho ry, had, on legal auscultation, the Indian heart beats of Hindu religious culture, and so scanned, his will intended vasting the proper ties in absolute debutter.
The idol was, therefore, the legal owner of the whole and liable to be assessed as such.
The respondent, however, has a second string to his bow.
Assuming an absolute debut ter, there is still many a slip between the lip and the cup, between the income and exigi bility to tax.
For, while, ordinarily, income accrues in the hands of the owner of property and is taxable as such, it is quite on the cards that in view of the special provisions in the deed of grant certain portions of the income may be tied up for other purposes or persons and may not reach the grantee as his income.
By an over riding charge, sums of money the balance of income may legally be received by the donee as his income.
The argument of the respondent is that even if the estate vested in the deity, an assessable entity in our secular system as held in Jogen dra Nath(1) still all the amounts meant to be spent on the shebaits and the members of the family, on the upkeep of horses and carriages and repair of buildings etc., were charged on the income and by, paramount provisions, directed to these uses.
These sums did not and could not come into the hands of the deity as its income and could not be taxed as such.
If the 'shebaits and trustees ' collected the income by way of rents and interests, to the extent of these other disbursements they received the amounts merely as collectors of rents etc; not as receivers of income.
Such amounts were free from income tax in the hands of the idol.
(1) ; 500 The principle we have set out above has been blessed by a uniform catena of cases.
The leading ruling on the sub ject is by the Judicial Committee in Bejoy Singh Dudhuria(1).
Lord Macmillan there observed as follows: "When the Act by section 3 subjects to charge 'all income ' of an individual it is what reaches the individual an income which it is intended to charge.
In the present case the decree of the court by charging the appel lant 's whole resources with a specific payment to his stepmother has to that extent diverted his income from him and has directed it to his step mother; to that extent what he receives for her is not his income.
It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands." (p. 138 139) A case in contrast is P.C. Mullick vs Commis sioner of Income tax(2).
There "The testator died in October, 1931.
By his will he appointed the appellants (and another) his executors.
He directed them to pay his debts out of the income of his proper ty, and to pay Rs. 10,000/ out of the income of his property on the occasion of his 'Addya Shradh ' for expenses in connection therewith to the person entitled to perform the Shradh.
He also directed his executors to pay out of the income of his property the costs of taking out probate of his will After conferring out of income benefits on the second wife and his daughter and (out of the estate) benefits on the sons, if any, of his daughter, and after providing for the payment out of income 'gradually ' of divers sums to some persons, and certain annuities to others, he be queathed all his remaining property (in the events which happened) to a son taken in adoption after his death by his wife, viz., one Ajit Kumar Ghosh who is still a minor.
" The payment of the Shradh expenses and the costs of probate were payments made out of the income of the estate coming to the hands of the appellants as executors, and in pursu ance of an obligation imposed by their testa tor.
It is not a case like the case of Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Calcutta in which a portion income was by an overriding title diverted from the person who would otherwise have received it.
It is simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand." (1) (2) 501 In Commissioner of Income tax vs Sitaldas Tirath das(1) this Court referred to many reported decisions some of which we have just mentioned.
Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374): "in our opinion, the true test is whether the amount sought to he deducted, in truth, never reached the assessee as his income.
Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact.
There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.
Where by the obliga tion income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence in law does not follow.
It is the first kind of payment which can truly he executed and not the second.
The second payment is merely an obliga tion to pay another a portion of one 's own income, which has been received and is since applied.
The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.
in our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own.
The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another 's income.
" The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to he accepted.
We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes.
We may quote to illus trate: "I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the Shebaits and the execution of the Trusts of this fund as and by way of remuneration for their serv ices the sum of Rupees Five hundred a month . " (1) 502 "I direct that the widows of my three deceased sons Greendro, Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distri bution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund.
" So the shebaits first got the income and then apply it in conformity with the directives given in the will.
The rulings relied on by both sides do not shake the position we have taken and may not merit discussion.
These conclusions we have drawn mean that the appeals have to be allowed and the reference answered in favour of the Revenue and against the assessee.
Accordingly we answer Questions Nos.1 and 2, referred at the instance of the assessee, against him and the other two questions referred at the request of the Revenue, affirmatively.
While answer ing the above questions we may state that all income ear marked for religious and charitable purposes conforming to section 4(3)(i) read with Explanation to section 4(3) of the 1922 Act shall not be included in the total income.
It is also clear that whatever income was agreed to be excluded in terms of the concession made by the Revenue in the High Court shah remain excluded.
The fluctuating fortunes of this litigation have been occa sioned by the discordant notes struck by the different clauses of the will and the inevitable element of confusion injected by the religious, charitable and secular wishes of the Hindu testator being translated into formal, legal terms by an English solicitor in the latter half of the last century.
He, therefore, direct that the parties do bear their own costs throughout.
P.H.P. Appeal allowed.
| IN-Abs | Raja Rajendra Mullick Bahadur of Calcutta executed his last will on 21 2 1887.
The author of the Will was a religious minded Indian, the draftsman of the document was John Hart, an English Solicitor.
The Will open with the words 'I hereby dedicate and make debutter my Thakurbaree '.The
Income Tax Officer issued notices requiring filing of the returns against the Deity Thakurbaree.
On b:half of Deity, a nil income return was filed under section 22(2) of the Indian Income Tax Act, 1922 for the assessment years 1956 57 and 1957 58.
In connection with the writ petition filed in the High Court for the proceedings in respect of assessment years 1955 56 it was conceded by the Revenue that a part of the income of the assessee which would be proved before the Income Tax authorities to have been applied in connection with feeding of the poor, sub scription to other charities enuring for the benefit of the public would be exempted under section 4(3)(i) of the Income Tax Act, 1922.
The Revenue contended that on a true construction of the said will there was a complete dedication of the property to the Deity and, therefore, the income arising from the said property was taxable in the hands of Deity.
It was, however, contended by the assessee that the remuneration of the trustees and the allowances to the widows of the de ceased trustees as provided in the Will created a charge on the income of the trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hand of the trustees.
The Income Tax Officer taxed the income of the Deity deducting therefrom such amounts as were conceded before the High Court in respect of the prior year.
The appeal preferred by the assessee was dismissed by the Appellate Assistant Commissioner.
Before the Tribunal, the Revenue substantially succeeded.
Thereafter, the Tribunal referred 4 questions of .law to the High Court, two at the instance of the assessee and.
two at the instance.
of the Revenue.
, The High Court on a metic ulous consideration of the entire Will decided against the Revenue and took the view that reading the Will as a whole the entire beneficial interest in the properties did not vest in the assessee Deity.
Assessee Deity was not the owner of the properties and, therefore.
the only income which could be subjected to income tax in the hands of the asses see would be the beneficial interest of the said Deity under the Will which would be the expenses incurred for Seva Puja of the Deity and for the various religious ceremonies con nected with the said Deity and the value of the residence of the Deity in the temple.
Allowing the appeal, HELD: 1.
The Will represents pious Bengali Wishes and disposition but drafted in the hands of an English Solici tor.
The court 's function in such an 484 ambiguous situations to steer clear of the confusion impart ed by the diction and to read the real intention of the testator.
The courts discerning loyalty is not to the formalitistic language used in drawing up the deeds but to the intentions which the disponer desired should take effect in the manner he designed.
The real question is whether the testator created an absolute or partial debutter or was there no dedication to the idol but a vesting of the legal estate in the trustees.
The use of the words like trust, trustees and Shebaits can lend support to the conten tion that the legal estate vested in the trustees.
However, the court has to push aside the English hand to reach at the Indian heart.
We are construing the Will of a pious Hindu aristocrat whose faith in ritual performances was more than matched by his ecumenical perspective.
Secondly, the sacred sentiment writ large in the Will is his total devotion and surrender to the family Deity Shri Jagannathjee.
It looks like doing Violence to the heart of the Will if one side steps the Deity to the status of but one of the benefici aries.
The Will in the forefront declares the dedication to the Deity.
The expression trust, trustees and shebaits were indiscriminately used.
The expressions are uncertain of the precise import of these English legal terms in the Indian context.
The idol was, therefore, the legal owner of the whole and liable to be assessed as such.
, 491B, C D, 497D, 499E] 2.
The court negatived the contention that even if the property vested in the Deity, all the amounts to be spent on the Shebaits and the members of their family on the upkeep of horses and carriages and repair of buildings etc.
were charge on the income and, therefore, the same did not and could not come into the hands of the Deity as his income and could not be taxed as such.
If the Shebaits received rent and interest to the extent of these other disbursements they received the amounts merely as collectors of rents etc.
and not as receivers of income.
The terms in which the direc tions are couched do not divest the income at the source but merely direct a Shebait to apply the income received from the debutter properties for specified purposes.
[499E H, 501F G]
|
: Criminal Appeal No. 16 of 1972.
Appeal by Special Leave from the Judgment and Order dated 14 6 1971 of the Mysore High Court in Criminal Revi sion Petition No. 229 of 1971.
N. Nettar, for the Appellant.
K.R. Nataraja, for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short but interesting question of law.
The facts giving rise to the appeal are few and briefly stated as follows: On 1st October, 1970 the police filed a chargesheet against the respondent in the court of the Judicial Magis trate, First Class, Badami, charging him with having commit ted an offence punishable under Section 34 of the Mysore Excise Act, 1965.
The learned Judicial MagiStrate by an order dated 3rd October, 1970 refused to take cognizance of the offence on this charge sheet, since it was filed by the Police and not by an Excise official.
The view taken by the learned Magistrate was that under Section 60 clause (b) as amended by Mysore Ordinance No. 4 of 1970 which represented the law as it then stood, it was not competent to him to take cognizance of an offence punishable under Section 34, except on the complaint or report of an Excise Officer and since the charge:sheet in the present case was filed by the police and not by an Excise Officer, he was precluded from taking cognizance of the offence.
The learned Judicial Magistrate on this view directed that the charge sheet be returned to the police and ordered release of the respond ent.
The State thereupon preferred a Revision Application to the Sessions Court, Bijapur.
The learned Sessions Judge agreed with the view taken by the Judicial Magistrate and holding that the Judicial Magistrate was right in refusing to take cognizance of the offence on the charge sheet filed by .the police, rejected the Revision Application summarily.
This led to the filing of a Revision Application by the State before the High Court.
The High Court too summarily rejected the Revision Application and hence the State pre ferred the present appeal with special leave obtained from this Court.
Now in order to appreciate the contention that has been raised on behalf of the State in support of the appeal, it is necessary to notice the various changes which Section 60 of the Principal Act went 546 through from time to time during the relevant period.
Section 60 clause (b) as it originally stood provided that no Magistrate shall take cognizance of an offence punishable under any Section of the Act other then Section 35 or 38 or 46 or 48 "except on his own knowledge or suspicion or on the complaint or report of an Excise or Police Officer".
But before the charge,sheet in the present case came to be filed by the Police, an amendment was made in Section 60 clause (b) by Mysore Ordinance No. 4 of 1970 which came into force on 7th August 1970.
Section 18 of this amending ordinance omitted the words "or police" in clause (b) of Section 60.
The result was that cognizance of an offence punishable under Section 34 could not be taken by a Magistrate "except on his own knowledge or suspicion or on the complaint or report of an excise officer".
Section 60 (B) was also added at the same time and by this new Section inter alia offence under Section 34 was made cognizable and the provisions of the Code of Criminal Procedure 1898 with respect to cog nizable offences were made applicable to such offence.
It was on the basis of the amended clause (b) Section 60 that the learned Judicial Magistrate as well as the Sessions Judge held that cognizance of the offence under Section 34 charged against the respondent could not be taken, since the charge,sheet was filed by the police and not by an excise officer.
The learned counsel appearing on behalf of the State contended before us that even on the language of the amended clause (b) of Section 60 without the words "or police", it was competent to the Judicial Magistrate by reason of the enactment of Section 60(B) to take cognizance of the offence, but it is necessary for us to examine this contention since we find that before the Revision Applica tion came to be heard by the High Court, a further amendment was made in clause (b) of Section 60 by Mysore Act 1 of 1971 and that restored the position which obtained prior to the amendment made by Mysore Ordinance No. 4 of 1970.
Mysore Act No. 1 of 1971 was deemed to have come into force on 7th August 1970 and Section 23 of this Act provided inter alia that the amendment to Section 60 made by Mysore Ordinance No. 4 of 1971 shall be deemed never to have been made and the provisions of Section 60 as they stood prior to the said amendment shall be deemed to continue to be in force.
The result of the enactment of this provision by Mysore Act 1 of 1971 was that the amendment made in Section 60 clause (b) by deleting the words "or police" by Mysore Ordinance 4 of 1970, was obliterated and wiped out with retrospective effect so that in the eye of the law it was never made at all.
It is now settled law that when a legal fiction is enacted by the Legislature, the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it.
We must, therefore, proceed on the basis that the words "or police" were always there in clause (b) of Section 60, even at the time when the learned Judicial Magistrate made his order dated 3rd October, 1970 refusing to take cognizance of the offence and returning the charge sheet to the police.
If these words were in clause (b) of Section 60 at that time, then obviously the learned Magistrate was in error in refus ing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police.
That is the clear effect of the legal 547 fiction enacted in Section 23 of Mysore Act 1 of 1971 and that this would be so is amply supported by the decision of this Court in M.K. Venkatachalam I.T.O. and Another vs Bombay Dyeing and Mfg. Co. Ltd.(1) The High Court as well as the Court of Sessions, were therefore, clearly in error in affirming the order made by the learned Judicial Magis trate and it must be held that the charge sheet was validly filed before the learned Judicial Magistrate by the police and the Judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet.
We accordingly allow the appeal, set aside the orders made by the learned Judicial Magistrate, Sessions Judge and the High Court and remand the case to the Judicial Magis trate with a direction to him to deal with the charge sheet filed by .the police in accordance with law in the light of the observations contained in this judgment.
ORDER After we delivered the judgment in this case, our atten tion was drawn to the fact that subsequent to the decision of the High Court, a fresh charge sheet for .the same of fence was filed by the police against the respondent and in view of the amendment made in section 60, clause (b) by Mysore Act I of 1971, the learned Judicial Magistrate took cognizance of the offence and tried the respondent and ultimately as a result of the trial, the respondent was convicted and sentenced to imprisonment and in fact by :the time the appeal came to be heard by us, he had already served out his sentence of imprisonment.
In view of this fact, it is unnecessary to remand the case to the learned Judicial Magistrate for taking cognizance of the offence.
We accordingly direct that the last part of the final order made by us which commences with the words "and remand the case" be deleted.
S.R. Appeal allowed.
| IN-Abs | The Mysore Ordinance 4 of 1970 which came into effect from 7th August 1970 omitted the words "or police" in section 60(b) of the Mysore Excise Act, 1965 which provided for taking of cognizance by the Magistrate "on his own knowledge or suspicion or on the complaint or report of an excise or police officer".
It also inserted a new section 60B whereby offence under section 34 was made cognizable and the provisions of the Criminal Procedure Code 1898 with respect to cogniz.
able offences made applicable to such offence.
The earlier position which obtained prior to the said Ordinance was restored by the Mysore Amendment Act No. 1 of 1971 which received the President 's assent on 20th January 1971 but which was deemed to have come into force on 7th August 1970.
Section 23 of the 1971 Act provided that the amendment to section 60 made by the Ordinance of 1970 shall be deemed never to have been made and the provisions of section 60 as they stood prior to the said amendment shall be deemed to continue to be in force.
The judicial Magistrate, Badami, on a complaint filed by a police officer refused to take cognizance of an offence for the illegal Possession of 41/2 tolas of ganja under section 34 of the Mysore Excise Act 1965 in view of the provisions if section 60(b) ibid which represented the law as it then stood.
The revision application before the Sessions Court was dismissed on 15 1 1971.
A further revision filed before the High Court on 14 6 1971 was also dismissed in limine.
However after the dismissal of the revision by the High Court on a fresh complaint filed by the police in respect of the same offence as per the amending Act I of 1971, the judicial Magistrate took cognizance of the of fence, convicted the accused and sentenced hun to simple imprisonment for three months and also to pay a fine of Rs. 100/ .
Notwithstanding the conviction the State pressed its appeal by special leave against the judgment of the High Court dismissing the revision.
Allowing the appeal, the Court, HELD: (1) The High Court as well as the court of Ses sions were clearly in error in affirming the order made by the learned judicial Magistrate.
[547A] (2) The charge sheet was validly filed before the learned judicial Magistrate by the Police and the judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet.
[547A B] (3) The result of the enactment of section 23 by Mysore Act I of 1971 was that the amendment made in section 60 clause (b) by deleting the words "or police" by Mysore Ordinance No. 4 of 1970 as oblitarated and wiped out with retrospective effect so that in the eye of the law it was never made at all.
[546F] (4) It is now well settled law that when a legal fiction is enacted by the Legislature the court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect to it.
The clear effect of the legal fiction enacted in section 23 of Mysore Act No. 1 of 1971 was that the 545 words "or police" were always there in cl.
(b) of section 60 even at the time when the charge sheet was presented before the learned Magistrate and if that be so, the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police.
[546G H, 547A] M.K.
Venkatachalam I.T.O. & Anr.
vs Bombay Dyeing & Mfg. Co. Ltd. ; , applied.
|
Appeal No. 1694 of 1971.
(From the Judgment and Decree dt. 11 2 70 of the Allaha bad High Court in Civil Misc.
Writ No. 973 of 69).
S.C. Manchanda and O.P. Rana for the Appellants.
K. Sen, J.P. Goyal and Shreepal Singh, for the Re spondent.
The Judgment of the Court was delivered by SHINGHAL J.
This appeal by the State of Uttar Pradesh and three sales tax officers is directed against the judgment of the Allahabad High Court dated February 11, 1970.
The High Court has granted a certificate of fitness under clause (c) of article 133(1) of the Constitution.
Respondent Modi Industries Limited.
hereinafter referred to as the dealer, was known earlier as the Modi Sugar Mills Ltd. It manufactured various articles like sugar, oil, vanaspati and soap.
It exercised the option under section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) of the U.P. Sales Tax Act, 1948, hereinaf ter referred to as the Act, to submit its returns of sales tax on the basis of its turnover of the previous yearns and filed the returns accordingly.
The assessment years for which the returns were filed were 1948 49 and 1949 50, and the corresponding previous years were November 1, 1946 to October 31, 1947, and November 1, 1947 to October 31, 1948 respectively.
The rate of sales tax for certain commodities was enhanced during the assessment year 1948 49, with effect from June 9, 1948, and for some other commodities with effect from July 1, 1948.
The dealer contended that sales tax on its entire turnover of the two previous years should be assessed at the old rate of 3 pies per rupee and not at the enhanced rate of 6 pies per rupee because the enhancement was made after both the previous years had ex pired.
The Sales Tax Officers rejected that contention and assessed 'the sales tax at the enhanced rates.
The appel late authority however upheld the dealer 's contention and the matter went up in revision to the Judge (Revisions).
He upheld the order of the Sales Tax Officer.
The dealer applied for a reference under section 11 (1) and the fol lowing two questions of law were referred to the High Court, "(1) Whether the enhanced rate under notifica tions dated 8th Jane, 1948 and 30th June, 1948 issued under section 3 A of the U.P. Sales Tax Act.
1948 are ap plicable to the sales of goods mentioned in paragraph 2 above which took place before 8th June 1948 and 30th June, 1948.
(2) Whether sub section (ii) of section 3 A of the U.P. Sales Tax Act, 1948, empowers Provincial Government to fix the rate of sales tax in respect of an assessment year or in respect of certain specified sales only ?" 550 By its judgment dated July 24, 1961, the High Court answered question No. 1 in favour of the dealer, but declined to answer the other question.
The High Court took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year was liable to assess ment, on the entire turnover of the previous year, at the rate prevailing on the first day of the relevant assessment year and that any change in the rate of the sales tax during the course of the assessment year could not be applied to that assessment.
The dealer filed an application under section 11(8) of the Act for a direction for the payment of interest on the amount which had become refundable as a result of the judgment of the High Court.
The High Court held in its order dated February 22, 1966 that the dealer was entitled to interest at the rate of two per cent on the refundable amount.
The dealer accordingly made an application to the Revising Authority on October 11, 1968 to pass an order under sub section (6) of section 11 for a refund of Rs. 3,48,420/13 with interest at two percent per annum.
The Additional Judge (Revisions) Sales Tax however dismissed the application by his order dated December 28, 1968, as he took the view that that was not permissible because of the insertion of section 31 in the Act by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 (U.P. Act III of 1963) hereinafter referred to as the Amending Act.
The dealer felt aggrieved and filed a writ petition under article 226 of the Constitution.
It is that petition which has been allowed by the impugned judgment of the High Court dated February 11, 1970 by which the order of the Additional Judge (Revisions) Sales Tax Meerut, dated Decem ber 28, 1968, has been quashed and a direction has been given to him to pass an appropriate order under section 11 (6) of the Act in accordance with the law and in the light of the observations made by the High Court.
This is why the State of Uttar Pradesh and others have come up to this Court in appeal.
We have made a mention of the facts bearing on the controversy, and we may as well refer to the relevant provi sions of the law.
The Act came into force on April 1, 1948.
It provided for payment of the sales tax on several commodities at a uniform rate of 3 pies in the rupee.
Section 3 A was in serted by Act XXV of 1948 conferring certain powers on the Provincial Government.
The provincial Government issued a notification under that section declaring.
inter alia, that with effect from June 9, 1948 the rate of sales tax in respect of the turnover of the goods specified in the noti fication shall be as stated in the schedule to the notifica tion.
The rate of tax was thus enhanced to 6 pies per rupee.
The enhancement of the tax was challenged on the ground that it was not permissible in the case of an asses see who had taken the option to submit his return on the basis of the turnover of the sales in the previous year as he was liable to pay the tax according to the rates pre vailing during the assessment year.
That case came up to this Court at the instance of the present respondent, which was then known as the Modi Sugar Mills Limited.
and it was held in Commissioner of Sales Tax, Uttar Pradesh vs The Modi Sugar Mills Ltd. (1) that the assessee who had (1) ; 551 elected to submit his return on the turnover of the previous year was liable to be assessed to sales tax at the rate force on the first day of the year of assessment because the liability arose on that date, and any subsequent enhance ment of the rate by the notification under section 3 A did not alter the liability, The Legislature however passed the Amending Act and inserted the following as section 31, "31(1) Where any dealer has, in accord ance with the provisions of Section 7, as it stood prior to its amendment by Section 7 of U.P. Act XIX of 1956, opted to be assessed to tax on the basis of his turnover of the previ ous year, he shall be assessed to tax at such rates as are prevalent during the year for which the assessment is being made, and if the rates of tax on any goods or class of goods are altered during such assessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also propor tionately for the same number of days as they are in force during the assessment year.
(2) Notwithstanding any judgment, decree or order of any court, all assessments or orders made, actions or proceedings taken, directions issued, jurisdictions exercised or tax levied or collected by any officer or authority purporting to act under the provi sions of sub section (1) of Section 7, as it stood prior to its amendment by Section 7 of U.P. Act XIX of 1956, shall be deemed to be good and valid in law as if such assessments, orders, actions, proceedings, directions, jurisdictions and tax have been duly made, taken, issued, exercised, levied or collected, as the case may be, under or in accordance with the said provisions of this Act as amend ed by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 and as if the amendment so made had been in force on all material dates.
Explanation For the purposes of this section the expression "previous year" shall have the meaning assigned to it in sub clause (ii) of clause (j) of Section 2 of this Act, as it stood prior to its amendment by Section 2 of the U.P. Act XIX of 1956.
" The validity of the aforesaid section 31 of the Act came up for consideration in this Court in Commissioner of Sales Tax, U.P. vs Bijli Cotton Mills Hathras(1) and was upheld.
It was held that as the Legislature had amended the Act and declared that notwithstanding the option exer cised by the assessee the tax would have to be computed in the light of the rates prevailing in 1948 49 as if they were projected upon the turnover of the previous year, the Legislature had expressly stated that that rule would pre vail as if it were in force during the assessment year and all assessments would be made in the light of the amended provision.
It was observed that in taking that view this Court was seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability (1) [1964]7 S.C.R. 363.
552 arose, for section 31 incorporated by the Amending Act was to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court.
It was held further that this would be the position even if the laws were amended with retroactive operation during the pendency of a reference to the High Court.
It was accordingly held that "if the law which the Tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended.
" The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills ' case and have in fact not been challenged by counsel for the dealer.
It may be mentioned that in its judgment in Bijli Cotton Mills ' case this Court took notice of its earlier decision in the Modi Sugar Mills ' case (supra) so that it is well settled that the amendment made by section 31 is retroac tive and applies to assessments pending or closed as if the Amending Act had been in force at material times.
The question is whether the judgment of the High Court dated July 24, 1961 answering question No. 1 of the afore said reference by stating that the sales tax had to be charged from the dealer for the assessment year 1948 49 at the rate applicable to the various commodities on April 1, 1948, and for the assessment year 1949 50 at the rate applicable on April 1, 1949, was binding on the Additional Judge (Revisions) in spite of the amendment made by the Amending Act by insertion of section 31 in the Act ? The High Court has taken 'the view in its impugned judgment dated February 11, 1970 that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on "any ground whatsoever", including the ground of any subsequent amendment in the law, and that it was bound to decide the case in conformity with the judgment of the High Court.
The High Court has expressed its view as follows , "The judgment of the High Court may be said to have become erroneous as a result of the amendment but so long as the judgment stands, it is binding upon the parties and the revising authority has no option except to give effect to it in its c, order passed under section 11(6).
" The High Court further made the following observation, "We however, express no opinion as to the course.
which the department should.
adopt in a situation like this, but we have no doubt in our mind that the amendment brought about by section 31 of the Act does not make the judgement of the High Court a nullity and the Judge '(Revisions) was not free to ignore it for any reason whatsoever.
" The question is whether lifts view of the High Court is correct ? The answer to the question depends on the answer to the further question whether the proceedings for the assessment of the sales tax had become final after the High Court 's judgment dated July 24, 553 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions) ? Sub section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment.
" So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects.
It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy.
According to sub section (2) of that section, the assessments made at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates.
It was expressly provided by the sub section that that was to be so notwithstanding any judgment, decree or order of any court.
The order of the Additional Judge (Revisions) dated December 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates,and sub section (2) of section 31 had the effect of making them "good and valid in law".
It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31.
It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub section C(6) of section 11 of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of the specific provi sions of subsection (2) of section 31, so that the position would have been the same as if no such order had been passed at all.
The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the depart ment to be erroneous, it could have filed an appeal against it to this Court.
under article 136 of the Constitution to have it set set aside or modified.
It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter.
The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department.
In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned 554 judgment of the High Court dated February 11, 1970 and has come up in appeal against it.
And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an order.
It has next been argued that the amendment made in the Act by insertion of section 31 can not possibly be implemented as no machinery has been provided to give effect to it and that it should therefore have been ignored altogether.
This argument has been made with reference to this Court 's decision in Modi Sugar Mills ' case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case.
So when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provi sions of sub section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968.
The appeal is allowed and the impugned judgment of the High Court dated February 11, 1970, is set aside.
In the circumstances of the case, the parties shall pay and bear their own costs.
P.B.R. Appeal allowed.
| IN-Abs | The respondent filed its sales tax returns for the assessment years 1948 49 and 1949 50 on the basis of its turnover of two previous years.
In respect of certain commodities, the rate of sales tax was enhanced with effect from certain dates falling within the assessment years.
The High Court on reference took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year of assessment, was liable to be assessed at the rule prevailing on the first day of the relevant assessment year and that any change in the rate during the assessment year could not be applied to that assessment.
The assessee, who had paid tax at the enhanced rate, applied for refund of the excess tax together with interest thereon under section 11(6) of the U.P. Sales Tax Act, 1948.
The Additional Judge (Revisions), however, rejected the applica tion holding that refund was not permissible in view of section 31 introduced by the Amending Act (U.P. Act 3 of 1963).
That section provided that where a dealer opted to be as sessed to tax on the basis of his turnover of the previous year, he shall be assessed to tax at such.rates as are prevalent during the year for which the assessment is being made, and if the rates of tax are altered during such as sessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also proportionately for the number of days involved as they were in force during the assessment year.
According to sub section (2) of that section the assessments made at the enhanced rates in accordance with the notification dated April 9, 1948 were to be deemed to be good and valid as if they had been duly made and as if the amendment made by the insertion of section 31 had been in force on all material dates.
It was expressly provided by the sub section that that was to be so notwithstanding any judgment, decree or order of any court.
The High Court quashed the order of assessment on the ground that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on any ground whatsoever, including the ground of any subse quent amendment of the law.
Allowing the Appeal to this Court, HELD: There is nothing wrong with the view taken by the Revising Authority.
When section 31 of the Act is valid, and is retroactive .and the Legislature has shown the intention of restoring the assessments and orders made before the amendment as good and valid in law as if they had been duly made.
that was enough to set the controversy at rest.
The amendment made by section 31 was retroactive and applied to assessments pending or closed as if the Amending Act had been in force at all material times.
[554C D; 552C] Commissioner of Sales Tax, U.P.v.
Bijli Cotton Mills, Hathras; , referred to.
(a) Section 31 was sought to be applied to the facts of the case when the Additional Judge (Revisions) was in seisin of the case for the purpose of passing the necessary orders to dispose it of finally in conformity with the judgment of 549 the High Court.
If he had passed an order under section 11(6) of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of section 31(2).
[553B C & F]
|
il Appeal No. 1870 of 1968.
(From the Judgment and Decree dated 6 3 1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.) I. N. Shroff and H.S. Parihar, for the appellant.
S.B. Wad and M.N. Shroff, for respondent No. 1.
556 A. section Bobde, G.L. Sanghi, V.K. Sanghi, Miss Rama Gupta and M.S. Gupta, for respondent No. 2.
The Judgment of the Court was delivered by C.J.
This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay.
The appellant is the State of Madhya Pradesh.
The first respondent is the State of Maharashtra.
The second respondent is the plaintiff decree holder.
They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintiff.
, The trial court passed a decree in favour of the plain tiff.
It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the.
order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative.
The further declara tion was that the: plaintiff shall be deemed to be continu ing in service from 16 September, 1943.
A sum of Rs. 64, 588 2 0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to.
pay the same with interest.
Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff.
Maharashtra preferred an appeal against the decree.
Madhya Pradesh preferred objections against the order of costs.
The High Court confirmed the decree and the declara tions.
The High Court however modified the decree and held Madhya Pradesh liable.
The claim of the plaintiff against Maharashtra was dismissed.
The plaintiff was appointed Assistant Medical Officer in 1938.
In 1939 he was appointed officiating Assistant Surgeon.
He was posted at Elichpur (now Achalpur).
In 1942 he was transferred to Hoshangabad.
In 1943 he ap plied for medical leave for four months.
The Civil Surgeon recommended leave for six weeks.
The plaintiff again ap plied for leave in the month of August, 1943.
The leave was sanctioned by the Civil Surgeon.
The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keep ing good health.
The Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave.
The Government sanc tioned leave for six weeks.
On 28 September, 1943 the plaintiff was suspended by an order with effect from 16 September, 1943.
The plaintiff was served with a notice dated 30 September, 1943 to show cause why he: should not be dismissed from service.
Four charges Were levelled against the plaintiff.
First, that he refused to come to duty at the time of epi demic in August, 1943; Second, that he left his station without permission.
Third, that he refused to attend the Departmental enquiry when ordered to do so.
Fourth, that he wilfully and deliberately acted in total disregard of orders and absented himself from duty though he was declared to be fit to.
resume duty.
557 The Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved.
On 21 June, 1945 the plaintiff was asked to show cause why he.
should not be dismissed or reduced in rank.
On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order.
By order dated 7 November, 1945 the Provincial Government passed an order removing the plaintiff from service with effect from that date.
On 10 May, 1945 the plaintiff filed an appeal to the Governor but it was dismissed.
On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur.
By judgment dated 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to.
be deemed to.
continue in service.
The plaintiff was thereafter reinstated in service aS Assistant Surgeon on 12 December, 1953.
He was posted at Rays Hospital, Nagpur on 15 September, 1953.
On 13 January, 1954 the plaintiff was again suspended from service under order dated 9 January, 1954.
The plain tiff handed over charge on 13 January, 1954.
On 1 February 1954 the plaintiff was served with a notice dated 29 Janu ary, 1954 to show cause why he should not be removed from service.
The former report of the Enquiry Officer dated 22 February, 1945 was also given to the plaintiff.
On 2 February, 1956 the plaintiff was removed from service.
He appealed to the Governor.
The appeal was dismissed.
On 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur against Madhya Pra desh and Maharashtra.
The plaintiff asked for a declaration that the order dated 9 January, 1954 suspending the plain tiff as well as the order dated 2 February, 1956 is illegal.
The plaintiff asked for a declaration that he is deemed to continue in service.
He claimed recovery of Rs. 64,588 2 0 as arrears of salary.
The plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are "liable to make good the plaintiff 's claim the liability for which is not exclusive but joint and several".
The alternative case.
of the plaintiff in the suit was that "if it will be held that the State of Maha rashtra and not the State of Madhya Pradesh is liable or viceversa the plaintiff will claim the decree ' against such State as would be liable".
The Civil Judge passed the.
decree on 25 April 1959 ' declaring: the order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 remov ing the plaintiff from service as illegal, void and inopera tive.
The decree further stated that the 558 plaintiff was deemed to continue in service from 16 Septem ber, 1943.
The Civil Judge passed a decree against the State of Bombay with the direction to pay Rs. 64,588 2 0 with 'interest at 6 per cent.
Both Maharashtra and Madhya Pradesh went up in appeal.
The Division Bench of the Bombay High Court placed the matter before a larger Bench and referred these two ques tions for the decision of the Larger Bench.
(1) Whether in the events that have happened which of these two States of Maharashtra and Madhya Pradesh can be compelled to take the plaintiff in service.
(2) Whether both or only one of the two States can be made liable for the payment of ar rears of salary of the plaintiff, if so, which State is liable.
The larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into.
force on 1 November, 1956 is the principal successor State of the former State of Madhya Pradesh.
The High Court further said that the State of Maharashtra is the successor State of the former Madhya Pradesh inasmuch as certain territo ries, namely, Vidharbha which formed part of the former St. ate of Madhya Pradesh became: a part of the new State of Maharashtra.
The High Court then referred to.
clause (B) of section 88 of the Act and said that Maharashtra would be liable for the claim of the plaintiff only if the cause of action has arisen in its entirety within the territories which formed part of Maharashtra, otherwise initial liabil ity for the plaintiff 's claim will be on the principal successor State Madhya Pradesh under section 88(c) of the Act.
The larger Bench therefore referred the matter to the Division Bench to consider the question whether the cause of action for the plaintiff 's claim arose in its entirety within the territories which formed part of the Maharashtra.
The High Court held that under section 88(c) of the Act Madhya Pradesh is responsible for the claim of the plain tiff.
The High Court further held that the plaintiff was appointed under conditions of service Prescribed for him and accepted by him, and, therefore, the plaintiffs claim for arrears of salary would be governed by section 87 of the Act and not by section 88 of the Act.
The High Court said that the plaintiffs claim for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms.
of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff.
The High Court also said that at the time of the plaintiff 's appointment in 1939 the plaintiff 's services were available for the then entire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh.
Therefore, the High Court said that section 87(b) of the Act would not apply.
Under the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the appointed day not exclusively purposes of any of the two successor States.
Madhya Pradesh raised three contentions.
First, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the.
suit filed by the. plaintiff in 1949 and was 559 therefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claim ing the salary and allowances for the period of 16 Septem ber, 1943 to 31 August, 1953 in the second suit which was filed on 6 October, 1956.
Second, the plaintiff 's claim in the second suit for salary and allowances prior to 6 October 1953 would be barred by the reason of Article 102 of the Limitation Act 1908.
Third, the liability, if any, would be under section 88(b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned.
Reference was made to section 8(1) (c) of the Act for the purpose.
Further it is said by the appellant that on or after 1 November, 1956 the plain tiff could continue the suit only against the State of Bombay later known as State of Maharashtra and not against the State of Madhya Pradesh as constituted on or after 1 November, 1956.
Maharashtra contended that the liability was of Madhya Pradesh because of the provisions contained in section 88(c) of the Act.
It was said on behalf of Maharashtra that the plaintiff had been appointed to service in Central Prov inces and Berar which became the principal successor State of Madhya Pradesh.
The order of removal was also by the existing State which became the principal successor State of Madhya Pradesh.
In order to appreciate the rival contentions reference is necessary to two sections of the Act.
Section 87 speaks of liability in the case of contracts. 'Broadly stated, the provisions of section 87 of the Act are that where before the appointed day "1 November 1956" an existing State has made any contract in the exercise of 'its executive power for any purposes of the State, that contract shah be deemed to have been made in the exercise of the executive power (a) if there be only one successor States of the State; and (b) if there be two or more successor States and the purposes of the contract are,as from the appointed day, exclusively purposes of any one of them of that State; and (c) if there be two or more successor States and the purposes of the contract are,contract are, as from that day, not exclusively purposes of any one of them. of the principal successor State: and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State be rights or liabilities of the successor State or the principal succes sor State.
The proviso to section 87 of the Act is that where the liability attaches under clause (c) the initial allocation of rights and liabilities made by this sub section shall be subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the central Government may by order direct.
Section 88 of the Act provides that where before the appointed day, an existing State is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall (a) if there be only one successor State, be a liability of that State; (b) if 560 there be two or more successor ' States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and (c) in any other case, be initially a liability of the principal successor State, but subject to such financial adjustment as may be agreed upon between 'all the successor States concerned, of in default of such agreement, as the Central Government may by order direct.
The claim for declaration that the order of suspension as welt as the order of dismissal was void is in respect of an actionable wrong other than breach of contract.
In order to.
determine as to which of the two States would be liable e under section 88 of the '.
1956 Act it has to be found out whether the cause of action arose wholly within the territories of one of the States or arose partly in the territories of one State and partly in the territo ries of the1 other.
The departmental enquiry which was alleged to be illegal was held at Hoshangabad which has all along been a part of the State of Madhya Pradesh only.
final orders which were challenged in the suit were passed at Nagpur which became part of the State of Bombay and later on known as Maharashtra.
The plaintiff 's cause of action comprises of every fact which is necessary to be proved.
The plaintiff based his claim with regard to de partmental enquiry which was held at Hoshangabad and also with regard to impugned order passed at Nagpur.
The appel lant State is the principal successor State of the former State of Madhya Pradesh.
Maharashtra was one of the succes sor States, like Madhya Pradesh.
Section 88(a) of the 1956 Act in the present case has no .application because it speaks of only one successor State.
Section 88(b) of the 1956 Act refers to the State.
where the cause of action wholly arose within the territories of either of the.
successor States.
In the present case, it cannot be said that the cause of action arose wholly within the successor State of Maharashtra.
Therefore, the residuary 'provision contained in section 88(c) of the 1956 Act applies and the liability is of the principal successor State, namely, Madhya Pradesh.
The High Court was right in arriving at the conclusion that Madhya Pradesh is liable.
The plaintiff 's suit in 1949 was only for setting aside the impugned orders.
The plaintiff did not ask for relief for arrears of salary for the obvious reason that the plain tiff in the 1949 suit asked fox ' setting aside of the im pugned orders and an order that the plaintiff was deemed to be continuing in service.
The plaintiff proceeded on the existing law as it stood by reason of the decision in High Commissioner for India vs 1.
M. Lall(1).
The Judicial Committee in that case held that a civil servant was not entitled to.
sue the State for recovering arrears of salary and pay.
Counsel for Madhya Pradesh relied on the decision in Province of Punjab vs Pandit Tara Chand (2) which held that a public servant had a right to bring a suit for ar rears .of pay.
The decision of the Judicial Committee in Lall 's case (supra) takes a contrary view to the decision of the Federal Court in Pandit (1) 75 I.A. 225.
(2) 561 Tara Chand 's case (supra).
It it true that the decision of the Federal Court in Pandit Tara Chand 's case (supra) was not brought to the notice of the Privy Council.
Under section 208 of the Government of India Act 1935 the law declared by the Judgment of the Privy Council had to be followed by all the Courts including the Federal Court.
Therefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in Lall 's case (supra).
This Court in State of Bihar vs Abdul Majid(1) stated that a Government servant could ask for arrears of salary.
Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid 's case (supra) declared what the exist ing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit.
It is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Proce dure would not be entitled to claim salary in the 1956 suit.
The contention of Madhya Pradesh cannot be accepted.
The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to.
sue for that relief.
It will not be correct to say that while the decision of the Judicial Committee in Lall 's case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary.
On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim.
If at the date of the former suit the plain tiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit.
The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit.
A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure.
See Amant Bibi vs Imdad Husain(2).
The crux of the matter is presence or lack of awareness of the right at the time of first suit.
This Court in Om Prakash Gupta vs State of Uttar Pradesh(2) considered the prayer for refund of court fees on a claim which was abandoned.
The plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal.
In view of the decision in Lall 's case (supra) the plaint in that casewas amended by deleting the claim for arrears of salary and also for damages.
The plaintiff thereupon praved for refund of the court fees which had been paid on arrears of salary for damages.
Both the trial Court (1) (2) 15 I.A. 106, 112.
(3) ; 562 and the High Court rejected the claim for refund of court fees.
This Court also upheld the same view.
The reason given by this Court was that at the time the suit was insti tuted the law as it then stood permitted such a claim to be made.
The decision of the Privy Council made it clear that no such claim could be made.
The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood.
The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions con tained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit.
The plain tiff could not have asked for " arrears of salary on the law as it then stood.
The plaintiff did not know of or possess any such right.
The plaintiff, therefore, cannot be said to have omitted to sue for any right.
Another reason why the bar under Order 2 Rule 2 of the Code of Civil Procedure cannot operate is that the plain tiff 's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit.
See Pavana Reena Saminathan vs Palaniappa(1).
This Court in Jai Chand Sawhney vs Union of India (2) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred.
The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in service throughout the period during which the order of dismissal remains operative.
Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.
The same view has been taken by this Court in Sakal Dean Sahai Srivastava vs Union of India(3).
In that case the plaintiff filed a suit on 27 November, 1962 for a declara tion that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.
Relying on the decision of this Court in Jai Chand Sawhney 's case and Sakal Deep 's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years ' salary.
The present case is not one of setting aside an order of dismissal simpliciter.
When the plaintiff filed a suit in 1949 he could not ask for arrears of salary.
Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953.
Three features are to be borne in mind in appreciating the plaintiff 's case from the point of view of limitation.
First the plaintiff became entitled to salary for the period 16 September, 1943 up to the date of rein statement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953.
Second, the plain tiff was (1) I.A. 142.
(2) (3) ; 563 again suspended on 19 January, 1954 and was dismissed on 23 February 1956.
The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary.
Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.
On these facts two consequences arise in the present appeal.
First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953.
Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53.
Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54.
Therefore, the plaintiff 's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953.
The plaintiff 's salary accrued only when he was reinstated as a result of the decree setting aside the orders of sus pension and of dismissal.
The rulings of this Court in Jai Chand Sawhney 's case (supra) and Sakal Deep 's case (supra) do.
not apply to the present appeal because there was no aspect of any suspen sion order remaining operative until the fact of rein statement pursuant to the decree.
The plaintiff 's cause of action for arrears of salary is this.
When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plain tiff became entitled to salary which was suspended during the period of suspension.
_ The plaintiff was again suspend ed from 19 January, 1954 and he was dismissed from service on 23 February, 1956.
Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspen sion dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.
The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953.
Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiff 's claim for salary accrued due.
This salary was again suspended from 19 January, 1954.
Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension.
The order of suspension does not put an end to his service.
Suspension merely suspends the claim to salary.
During suspension there is suspension allowance.
See Khem Chand vs Union of 2 112 SCI/77 564 India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary.
Under Fundamental Rule 52 'the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date.
of his dismissal or remov al.
Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismiss al stand.
The High Court was correct in the conclusion that the plaintiff 's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.
For the foregoing reasons the appeal is dismissed.
There will be costs only to the plaintiff respondent to be paid by the State of Madhya Pradesh.
M .R. Appeal dismissed.
| IN-Abs | Dismissing the appeal, the Court, HELD: (1) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.
A right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a "portion of his claim" within the meaning of Order 2 Rule 2 of the C.P.C. The crux of the matter is presence or lack of awareness of the right at the time of first suit.
[561D E, 562 B] Amant Bibi vs Imdad Hussain 15 I.A. 106 at 112, applied.
Om Prakash Gupta vs State of Uttar Pradesh ; , distinguished.
High Commissioner for India vs I. M. Lall 75 I.A. 225; Province of Punjab vs Pandit Tara Chand ; State of Bihar vs Abdul Majid , referred to.
The bar under Order 2 Rule 2 of the C P.C. cannot oper ate when the litigant 's cause of action in an earlier suit is totally different from the cause.
of action in a later suit.
[562 C] Pawana Reena Saminathan vs Palaniappa 41 I.A.142, applied.
(2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53.
The cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.
[563C D] Jai Chand Sawhney vs Union of India, and Sakal Dean Sahai Srivastava vs Union of India, ; , distinguished.
(3) Under Fundamental Rule 52 the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal.
Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand.
[564 B C] Khem Chand vs Union of India, [1963] Supp 1 S.C.R. 229, followed.
|
minal Appeal No. 150 of 1954.
On appeal by leave from the judgment and order dated the 23rd March 1954 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 112 of 1953 connected with Criminal Reference Register No. 15 of 1953 arising out of the judgment and order dated the 24th February 1953 in Sessions Trial No. 5 of 1952 of the Sessions Court at Lucknow.
1037 B, B. Tawakley, (K. P. Gupta and A. D. Mathur with him) for the appellant.
S.P. Sinha (K. B. Asthana and C. P. Lal with him) for the respondent.
December 7.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal by special leave against the judgment of the High Court of Allahabad affirming the conviction of the appellant by the Sessions Judge, Lucknow under sections 409 and 477 A of the Indian Penal Code.
On 12 2 1949 a Society known as the Model Town Co operative Housing Society, Ltd., was registered under the provisions of the Co operative Societies Act (II of 1912), its object being to acquire vacant sites in the town of Lucknow and to allot them to its members so as to enable them to build houses of their own.
The appellant was the chief promoter thereof, and collected monies from prospective shareholders by way of share money.
The first general body meeting of the Society was held on 1 3 1949.
At that meeting, the appellant was elected Honorary Secretary and one Sri Munna Lal Tewari as Treasurer.
The latter having resigned, one section C. Varma was appointed Treasurer in his stead.
On 22 4 1949, there was a meeting of the Managing Committee, at which the appellant was directed to band over the accounts of the Society and its funds to its Treasurer.
The ap pellant gave a list of 38 persons as members of the Society, delivered cheques issued by 13 of them as their share money, and paid a sum of Rs. 3,500 being the amount stated to have been received by him from the other 25 members as share money.
The Society did not function thereafter.
On 16 7 1949 some of the members wrote a letter to the Registrar of Co operative Societies pointing out that the Society had not functioned ever since its incorporation, and asking that steps might be taken for examination of its accounts and, if necessary, for its being wound up.
On this, there was an investigation of the affairs of the Society by two Assistant 1038 Registrars, and on the basis of their reports dated 22 2 1950 and 18 5 1950 the present prosecution was started against the appellant charging him under sections 409 and 477 A of the Indian Penal Code.
The charge under section 409 was that he had received a sum of Rs. 500 from one Sri Chaturvedi, a sum of Rs. 100 from Dr. 0.
P. Bhanti and another sum of Rs. 100 from Dr. R. section Seth, all as share money in December 1948, and that he had misappropriated the same.
The charge under section 477 A was that on 22 4 1949 the appellant acting as the Secretary of the Society falsified the minute book, Exhibit P 18, by omitting to show therein the share money received from the three persons above mentioned.
The defence of the appellant was that the three amounts aforesaid were paid to him not as prospective Secretary for the purpose of allotment of shares, but were deposited with him in his individual capacity for purchasing shares, in case the Society worked well.
The trial of the offence under section 409 was held with the aid of assessors and that under section 477 A with the aid of a jury, the same persons acting both as assessors and jurors, and they returned a verdict of not guilty with reference to the charges under both the sections.
The Sessions Judge, disagreeing with the verdict of the jury under section 477 A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure.
He also disagreed with the opinion of the assessors with reference to the charge under section 409, and held that the appellant was guilty and sentenced him to four years ' rigorous imprisonment and a fine of Rs. 1,000,.
Against this conviction, the appellant preferred an appeal to the High Court.
Both the reference under section 3O7 and the appeal were heard together by the High Court, which agreed with the Sessions Judge that the appellant had received the three amounts as share money and in his capacity as Secretary, and accordingly confirmed his conviction under section 409 and the sentence passed by the Sessions Judge.
Disagreeing with the verdict of the jury, it also held him guilty under section 477 A and sentenced him to 1039 two years ' rigorous imprisonment.
The present appeal by special leave is directed against this judgment.
Mr. Tawakley firstly contended that the finding of the courts below that the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth were paid as share money was erroneous, and in support of this contention relied on a letter written by one of them, Dr. Seth, to the appellant on 3rd May 1951 (exhibit D 5) in which it was stated that the amount was paid on the express understanding that if the Society ran, a share would be allotted to him and otherwise the money would be returned.
This letter was written long after proceedings had been taken by the Registrar, and the courts below did not attach much importance to it.
On the other hand, Dr. Seth himself gave evidence in these proceedings which deprives Exhibit D 5 of very much of its value.
Exhibit P 10 is the receipt granted to Sri Chaturvedi.
It expressly recites that Rs. 500 was received as share money for five shares in the Society.
Notices were also issued to both Sri Chaturvedi and Dr. Bhanti to attend the general body meeting of the Society to be held on 1st March 1949 for electing the President and members of the Managing Committee of the Society, and Dr. Seth and Dr Bhanti actually attended it.
Sri Chaturvedi and Dr. Bhanti have also given evidence that they paid the amounts only as share capital.
The courts below accepted the above evidence, and held that the moneys were not paid to the appellant in his individual capacity.
There are no grounds for disturbing that finding in special appeal.
It is now necessary to deal with the several contentions of law urged by Mr. Tawakley in support of this appeal.
His first contention was that when the Sessions Judge disagreed with the verdict of the jury and with the opinion of the assessors, he should have referred the whole case under section 307 for the decision of the High Court and not merely that part of it which related to the charge under section 477 A, and that his failure to do so vitiated the conviction.
He argued that when the same facts constitute two 1040 distinct offences, one of which is triable with the aid of jurors and the other with assessors, and the accused is charged with both, the reference under section 307 must relate to both the charges, if inconsistent findings by different courts with reference to the same matter is to be avoided.
What would happen, he asked, if, in the present case, the appellant did not file an appeal against his conviction under section 409, but the High Court came to the conclusion in the reference under section 307 that Sri Chaturvedi, Dr. Bhanti and Dr. Seth did not pay the amounts to the appellant as share money, and that no offence had been committed by him under section 477 A? The conviction of the appellant under section 409 based on the finding of the Sessions Judge that those amounts were paid as share money would stand, notwithstanding that it would be against the decision of the High Court.
This anomaly could be avoided, it is argued, by holding that the reference under section 307 must be of the whole case.
Reliance is placed in support of this contention on the observations in Emperor vs Haria Dhobi(1).
We are unable to agree with this contention.
If the procedure adopted by the Sessions Judge is to be held to be illegal, it can only be on the ground that he contravened some provision of law which requires him to refer the whole case to the High Court.
It is conceded that the only provision of law dealing with this matter is section 307.
But that section applies in terms only to trials with the aid of a jury.
There is therefore no power in the Sessions Court to refer cases tried with the aid of assessors for decision of the High Court under that section.
That was the view taken in Pachaimuthu In re(2), where it was held that the Assistant Sessions Judge had no jurisdiction to refer under section 307 the whole case to the High Court, that he should himself dispose of the charges which were triable with the aid of assessors, and that the reference in respect of those charges was bad.
This decision was followed in Emperor vs Lachman (1) A.I.R. 1937 Patna 66 (2) Mad 715.
1041 Gangota(1).
The same view has also been taken by the High Court of Bombay in a number of cases: Vide Emperor vs Kalidas(2), Emperor vs Vyankat Sing(3) and Emperor vs Chanbasappa(4).
We are accordingly of opinion that the Sessions Judge had contravened no provision of law, and had committed no illegality in deciding the case, in so far as it related to the charge under section 409, himself In this case there is the further fact that the appellant preferred an appeal against his conviction under section 409 by the Sessions Judge, and that appeal was heard along with the reference under section 307 in respect of the charge under section 477 A, and that they were both of them disposed of by the same judgment.
It was next contended that the true status of the appellant was that of a servant and not of an agent, and that he should have been charged not under section 409 but under section 408.
The substance of the charge against the appellant is that as the promoter of a Society he lawfully received the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth, but that after its incorporation, when he failed on 22 4 1949 to hand over those amounts to the Treasurer and to include their names as shareholders in the minutes book, he committed offences under sections 409 and 477 A.
Now, what is the status of the appellant as Secretary of the Society in which capacity he committed the offences, servant or agent? The distinction between the two is thus stated in Halsbury 's Laws of England, Volume 22, page 113, para 192 "A, servant acts under the direct control and supervision of the master, and is bound to conform to all reasonable orders given him in the course of his work. .
An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal".
Having regard to the nature of the duties of the appellant as the Secretary of the Society, we are clearly (1) A.I.R. 1934 Patna 424.
(3) (2) (4) A.I.R. 1932 Bom.
61. 1042 of opinion that his status was that of an agent and not a servant.
Moreover, whether the appellant should be charged under section 408 or section 409 is of no importance in the present case, as the sentence imposed on him under section 409, viz., four years ' rigorous imprisonment could be maintained even under section 408.
It was argued by the appellant that an offence under section 408 was triable with the aid of a jury, whereas that under section 409 was triable with the aid of assessors, and that he had been prejudiced in that be bad lost the benefit of a trial by jury.
But this objection was not taken in the trial court, and is not now open.
Vide section 536 of the Code of Criminal Procedure.
It is next contended that there has been a violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409 and one under section 477 A.
But the case is governed by section 235, as the several offences under sections 409 and 477 A arise out of the same acts and form part of the same transaction.
Moreover, the appellant.
has failed to show any prejudice as required by section 537.
This objection must accordingly be overruled.
It was finally contended that there had been no proper examination of the appellant under section 342, and that therefore the conviction was illegal.
This objection was not raised in the Courts below, and is sought to be raised in this Court by a supplemental proceeding.
We find no substance in this objection.
In the result, this appeal fails and is dismissed.
| IN-Abs | The appellant was tried by the Sessions Judge with the aid of assessors for an offence under section 409, I.P.C. for misappropriating certain sums of money received as promoter of a Company from three ,different persons for the purpose of allotment of shares and omitted to be brought into the Company after it was formed, and also for an offence under section 477 A, I.P.C. by the same Sessions Judge with the aid of a jury for the offence of falsifying a minute book, the same persons acting both as assessors and jurors.
They returned a verdict of not guilty in respect of both the charges.
The Sessions Judge, disagreeing with the verdict of the jury under section 477 A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure.
Disagreeing also with the opinion of the assessors in respect of the charge under section 409, I.P.C. he held the appellant guilty and sentenced him to 4 years ' rigorous imprisonment.
Against this conviction the appellant appealed to the High Court.
Both the reference under section 307 of the Code of Criminal Procedure and the appeal were heard together by the High Court which confirmed the appellant 's conviction under section 409 and the sentence passed by the Sessions Judge and disagreeing with the verdict of the jury it held him guilty under section 477 A and sentenced him to two years ' rigorous imprisonment.
On appeal by special leave to the Supreme Court: Held (i) that the contention that when the Sessions Judge disagreed with the verdict of the jury and the opinion of the assessors, 1036 he should have referred the whole case under section 307 of the Code of Criminal Procedure to the High Court and not merely that part of it which related to the charge under section 477 A, I.P.C. was without force because the Sessions Judge had contravened no provision of law and committed no illegality in deciding the case which related to the charge under section 409, I.P.C.
That section 307, Code of Criminal Procedure applies in terms only to trials by a jury and the Sessions Judge had no power under that section to refer cases tried with the aid of assessors for the decision of the High Court.
In the present case there was the further fact that both the appeal against the conviction under section 409, I.P.C. and the reference under section 307 of the Code of Criminal Procedure in respect of the charge under section 477 A were disposed of by the same judgment; (ii)that the contention that the appellant 's true status was that of a servant and not that of an agent and that he should have been tried not under section 409, I.P.C. but under section 408, I.P.C. was also without force inasmuch as his status was that of an agent and not that of a servant in view of his duties as Secretary of the Society.
The distinction between the two is this a servant acts under the direct control and supervision of the master, and is bound to con form to all reasonable orders given to him in the course of his work.
An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal; (iii)that the contention that there had been violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409, I.P.C. and one under section 477 A was also without force as the case was governed by section 235 of the Code of Criminal Procedure as the several offences under section 409, I.P.C. and section 477 A, I.P.C. arose out of the same acts and formed part of the same transaction.
Emperor vs Haria Dhobi, (A.I.R. 1937 Patna 662), Pachaimuthu In re, ([1932] I.L.R. , Emperor vs Lachman Gangota, (A.I.R. 1934 Patna 424), Emperor vs Kalidas, ([1898] , Emperor vs Vyankat Sing ([1907] and Emperor vs Chanbasappa (A.I.R. , referred to.
|
ivil Appeal No. 651 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 19 6 1974 of the Bombay High Court in S.C.A. No. 1251 of 1970.) M.N. Phadke, Girish Chandra and M.N. Shroff, for the appellants.
S.V. Gupte, N. Kamalakar and A.G. Ratnaparkhi, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
On the reorganisation of States on November 1, 1956 the respondent who was working as an Agri cultural Overseer in the then State of Madhya Pradesh was allocated first to the State of Bombay and later to the State of Maharashtra.
By a resolution dated February 17, 1958 the Government of Bombay equated the post of Agricul tural Overseer with that of an Agricultural Assistant, Grade II.
In July 1958 the respondent was promoted as an Agricul tural Supervisor and in April 1967 he was appointed to the post of an Agricultural Officer.
On the reorganisation of States, a provisional combined seniority list of Agricultural Assistants, Grade II, was published by the Government of Maharashtra in 1961.
That list was revised from time to time, and ultimately the Government of India approved the final seniority list which came to be published on May 29, 1973.
The respondent has no grievance against ' his placement in that list, but his case is that under the seniority lists prepared from time to time by the State Government, he was erroneously accorded a lower place of seniority with the result that persons who were in fact junior to him came to be promoted on the assumption that they were senior to him.
The respondent therefore filed the present writ petition on October 14, 1970 asking for due recognition of his seniority.
He later amended that peti tion and asked for arrears of pay and allowances retrospece tively from the date on which he ought to have been promoted in accordance with the seniority list approved by the Cen tral Government.
The writ petition having been allowed by the Nagpur Bench of the Bombay High Court, the State of Maharashtra has filed this appeal by special leave.
The sole question which arises for determination in this appeal is whether the respondent is entitled to arrears of pay with effect from the date on which he would, in the normal course, have been promoted if his seniority Were recognised as it eventually came to be 589 recognised under the seniority list approved by the Central Government in 1973.
The answer to this question depends on whether the rights of the respondent are governed by the circular dated March 10, 1960 or by the circular dated February 25, 1965.
The case of the State Government is that the former, and not the latter circular, applies whereas the respondent contends that he is entitled to arrears of salary for the entire period under the latter circular.
We find it impossible to accept the respondent 's conten tion, which has found favour with the High Court, that the circular of February 25, 1965 governs the matter.
That circular reads thus: "Retrospective promotions of those who had been superseded earlier.
GOVERNMENT OF MAHARASHTRA GENERAL ADMINISTRATION DEPARTMENT Circular Memorandum No. SRV 1064 .D, Sachiva laya, Bombay 32 (B.R.) 25th February, 1965/Falgune 6, 1886.
CIRCULAR MEMORANDUM OF GOVERNMENT A question has been raised whether in cases in which Government servants who were super seded for promotion to the higher post are later promoted on the orders of higher author ities who consider the supersession unjusti fied and who having powers to set aside the order of supersession, do so, their promotion should be effective from the date on which they are actually promoted or from the date they should have been promoted had they not been wrongly superseded.
The Government has, considered this question and decided that in such cases, the Government servants concerned, should be deemed to have been promoted to higher post from the date from which they would have been promoted, but for their wrong ful supersession i.e. from the date from which their juniors who were promoted by superseding them started to officiate in such posts and they should be allowed pay in such post as if they were promoted on the dates on which their juniors were promoted and also paid arrears of pay and allowances from such dates.
(2) Orders in paragraph 1 above apply also to the cases of persons, who are superseded for promotion to gazetted post within the pur view of the Public Service Commission ordered by Government but are later promoted when their earlier supersession is considered in consultation with the Commission unjustified.
(3) Pending cases should be regulated in accordance with these orders in paragraphs 1 and 2 above, and arrears of 590 pay and allowances should be paid to the persons concerned provided that if the arrears relate to any period prior to the 1st May 1960, the payment is restricted to the period after that date, i.e. after the st May 1960.
(4) This Circular Memorandum issues with the concurrence of the Finance Department VIDE that department unofficial reference No. 581/V, dated the 2nd February, 1965.
By Order and in the name of Government of Maharashtra.
Sd/ K.P. Nadkarni, Deputy Secre tary to Govt.
" The language of this circular is singularly inappropriate to cover cases concerning equation and seniority consequent upon formation of new States.
The circular deals with cases where government servants who are superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjusti fied and who, having powers to set aside orders of superses sion, have set aside such orders.
In such cases, the circu lar provides, the government servant concerned should be deemed to have been promoted to the higher post from the date from which he would have been promoted but for his wrongful supersession.
There is no question in the present case of the respondent being promoted on the basis of any order passed by a higher authority.
Nor indeed did any higher authority consider the so called supersession of the respondent as unjustified.
While approving the revised seniority list in which the respondent occupied a much higher place than previously, the Central Government did not set aside any order of the respondent 's supersession nor did it pass any order directing that the respondent be promoted to a higher post.
We are clear that the circular of Febru ary 25, 1965, on which judgment.of the High Court rests, is not intended to govern questions of seniority and superses sion arising as a result of reorganisation of States.
That circular, by its language, is designed to meet cases in which a government servant, apart from the provisions of the States Reorganisation Act and apart from problems arising out of reorganisation of States, was denied his rightful seniority but is later accorded a due and appropriate place in the seniority list.
Paragraph 2 of the circular which speaks also of posts within the purview of the Public Serv ice Commission affords some indication that the circular is intended to apply only to cases of routine supersessions in the normal course of a service career.
If the circular of February 25, 1965 were intended to apply to a case like the present, it would have atleast referred to the circular of March 10, 1960 which specifical ly governs matters relating to fixation of seniority conse quent upon the reorganisation of States.
That circular, insofar as relevant, reads thus: 591 "Fixation of Seniority and pay on promotion according to final gradation lists.
GOVERNMENT OF BOMBAY Political and Services Department Circular No. SR INT 1059 VI Sachivalaya, Bombay, 10th March, 1960 CIRCULAR OF GOVERNMENT Promotions made on and after the 1st November, 1956, have been treated as provi sional pending absorption of the personnel and finalisation of gradation lists in accordance with the allocated Government Servants ' (Absorption, Seniority, Pay and Allowances) Rules 1957.
They are also subject to review in the light of the changes that may be made in the gradation lists as a result of the decisions on the representations Submitted by the Government Servants concerned.
Question has been raised as to how seniority and pay in the promotion post should be fixed in the case of a Government servant who in the light of the final gradation list, is promoted later than the date on which he was due for promo tion.
Government is pleased to direct that seniority and initial pay on promotion according to the final gradation list should be fixed as if the Government servant had been promoted on the date on which he would have been promoted had the gradation list been finalised on the 1st November 1956.
The date on which he would have been promoted should be admitted on the basis of a certificate given by the appointing authority specifying the date.
No arrears of pay should, however, be paid for the period prior to the date of actual promotion.
" Under this circular, the seniority and initial pay of the respondent has to be fixed as if he was promoted on the date on which he would have been promoted if the gradation list had been finalised on November 1, 1956.
But no arrears of pay can be paid to him for the period prior to the date of actual promotion.
The State Government relied upon this circular by their counter affidavit filed in the High Court but no challenge was made by the respondent to the vires or the validity of that circular even though he had his peti tion amended in order to ask for arrears of salary.
On the assumption that the circular is within the powers of the State Government, we have no doubt that the respondent 's case .must fail within that circular, in which case he would not be entitled to the arrears of salary for the period prior to the date of his actual promotion.
Mr. Gupte appearing on behalf of the respondent relies upon rule 21 of "The Allocated Government Servants ' (Absorption, Seniority, Pay and Allowances) Rules, 1957" and argues that since 592 under that rule the respondent is entitled to draw .his pay and allowances with effect from the date of his promotion to the higher post including the deemed date of promotion, the Government of Maharashtra has no power, in view of the proviso to section 115(7) of the States Reorganisation Act, to alter his conditions o[ service to his prejudice.
This argument is being advanced for the first time in this Court, but, apart from that, we are unable to agree either that rule 21 has the effect contended for or that the circular issued by the State Government fails within the mischief of the proviso to.
section 115(7).
By rule 21, the arrears of pay and allowances "which may become due to an allocated govern ment servant" on the fixation of his pay as on November 1, 1956 shall be payable only with effect from the date from which he became available for service in the State of Bombay or would have been so available but for the causes mentioned in rule 2(d).
Rule 21 is not in the nature of an entitle ment.
On the other hand, it restricts the right of the allocated government servant to receive pay and allowances "only with effect from the date" from which he became avail able for service in the State of Bombay or would have been so available except for the causes mentioned in rule 2(d).
The circular issued by the Government of Maharashtra on February 25, 1965 does not take away from the respondent the right, if any, which was available to him under rule 21.
For these reasons we set aside the judgment of the High Court, allow this appeal and direct that the respondent 's writ petition shall stand dismissed.
In view of the order passed at the time when special leave was granted, appel lant shall pay the costs of the appeal to the respondent.
Appeal allowed.
| IN-Abs | Consequent to reorganisation of States, the Maharash tra Government published seniority lists from time to time, erroneously according to the respondent a lower place of seniority with the result that juniors got promoted and his promotion was unduly delayed.
The respondent filed a writ petition asking for due recognition of his seniority, and later amended his petition, claiming arrears of pay and allowances retrospectively from the date on which he ought to have been promoted according to the final gradation list wherein he was placed correctly and which was approved by the Central Government.
The writ petition was allowed by the High Court.
Before this Court the respondent contended that under rule 21 of the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, he was entitled to draw his pay and allowances from the date of his promo tion including the deemed date of promotion.
Allowing the appeal by Special Leave, the Court, HELD: (1) The Maharashtra Government circular No. SRV 1064 dt.
25.2.1965 does not have the effect of altering the respondent 's conditions of service to his prejudice since the said circular issued by the State Government does not fall within the mischief of proviso to section 115(7) of the States Reorganisation Act.
[592 A] (2) The circular deals with cases where Government servants who were superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjustified and who having power to set aside orders of supersession have set aside such orders.
[590 D] (3) The circular dt.
25.2.1965 is not intended to govern questions of seniority and supersession arising as a result of Reorganisation of States.
That circular by its language is designed to meet cases in which a Government servant apart from the provisions of States Reorganisation Act and apart from the problems arising out of reorganisa tion of States was denied his rightful seniority but is later accorded a due and appropriate place in the seniority list.
[590 F G] (4) The circular issued by the Government of Maharashtra on February 25, 1965 does not take away from the respondent the right, if any, which was available to him under rule 21.
Rule 21 is not in the nature of an entitlement.
On the other hand, it restricts the right of the allocated Government servant to receive pay and allowances "only with effect from the date" from which he became available for service or would have been so available except for the causes mentioned in rule 2(d).
[592 B D] 588 (5) The respondent 's case must fall within the Bombay Government Circular No. SR INT 1059 VI dt. 10.3.1960 in which case he would not be entitled to the arrears for salary for the period prior to the date of his actual ' promotion.
[591 G]
|
: Criminal Appeal No. 20 of 1977.
Appeal by Special Leave from the Judgment and Order dated 28 2 75 of the Andhra Pradesh High Court in Crl.
A. No. 462 of 1973.
S.C. Agarwala and A.P. Gupta for the Appellants.
P.P. Rao, G.N. Rao and T.V.S.N. Chari for the Respondent. 'The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave is against the judgment of the Andhra Pradesh High Court dismissing the appeal filed by the appellants.
The appellants were convicted by the Additional Sessions Judge Visakhapatnam for offences under sections 147, 148 and 352 Indian Penal Code.
Some of the appellants were also convicted for offences under section 5 of the Explosive Substances Act and section 25 of the Indian Arms Act.
They were sentenced to various terms of imprisonment and the sentences were ordered to run concurrently.
The total sentence of imprisonment to be undergone by some of the appellants was 600 two years while in the case of the other appellants it was one year.
The appellants went up in appeal to the High Court against the judgment of the trial court.
The High Court referred to the fact that the appellants had been in custody during the course of the investigation, inquiry and trial, for about two years.
The appellants were held entitled under section 428 of the Code of Criminal Procedure, 1973 to set off the period of detention against the sentence of impris onment imposed upon them.
The High Court in view of the above dismissed the appeal after observing that it was unnecessary to go into the matter as it would be only of an academic interest.
We have heard Mr. Agarwala on behalf of the appellants and Mr. Rao on behalf of the State, and are of the opinion that the judgment of the High Court in so far as it has refrained from going into the merits of the conviction of the appellants, cannot be sustained; The fact that a con victed person has already undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under deten tion during the course of investigation, inquiry and trial cannot prevent the said person from challenging his convic tion in appeal.
Conviction for an offence entails certain consequences.
Conviction also carries with it a stigma for the convicted person.
A convicted person in challenging his conviction.
in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be ' wiped out.
In case the convicted person undergoes the sentence of imprisonment imposed upon him or he is otherwise entitled to be set at liberty by the time his appeal against conviction comes up for hearing in view of the length of the period he was in detention during the course of investigation, inquiry or trial, such a person would still be entitled to challenge his conviction.
The fact that he is set at liberty and would not have to undergo any further sentence of imprison ment would not debar him from questioning the validity of his conviction.
The object of such a challenge to convic tion is to avoid the other consequences flowing from convic tion and also to erase the stigma resulting from the convic tion.
The High Court, in our view, was in error in so far as it declined to go into the validity of the conviction of the appellants.
We, therefore, remand the case to the High Court for disposing of the appeal of the appellants on merit.
S.R. Appeal allowed and case remanded.
| IN-Abs | The appellants, upon conviction under the relevant sections of the Indian Penal Code, Explosive Substances Act and Arms Act, were sentenced to various terms of imprison ment.
The total sentence of imprisonment to be undergone for some of the appellants was two years while in the case of other appellants it was one year.
The High Court dis missed the appeal in view of the appellants ' entitlement to set off the period of their pre trial detention against the entire sentence of imprisonment imposed upon them after observing that it was not necessary to go into the matter as it would be only of an academic interest.
Accepting the appeal by Special Leave and remanding the cases to the High Court for disposing of on merits, the Court, HELD: (1 ) The High Court was in error in so far as it declined to go into the validity of the conviction of the appellants.
[600 F] (2) The object of a challenge to conviction is to avoid certain consequences flowing from conviction and also to erase the stigma resulting from the conviction.
The fact that the convicted person has already Undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under deten tion during the course of investigation, enquiry and trial cannot prevent the accused from challenging his conviction in appeal.
[600 C F]
|
Civil Appeal Nos.
145 146/ 1972.
(Appeals by Special Leave from the Judgment and Order dated 9 12 1970 of the Mysore High Court in Writ Petitions Nos.
2042 and 2065/70).
Narayan Nettar, for the appellant.
R.M. Mehta, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
These two appeals by special leave are against the common judgment of the Mysore High Court whereby the High Court in two petitions under article 226 of the Constitution of India quashed two orders made by the Deputy Commissioner of Commercial Taxes appellant under section 21 of the Mysore Sales Tax Act, 1957 (hereinafter referred to as the Act).
The respondent is an excise contractor.
He was as sessed under the Act for the assessment years 1959 60 and 1960 61 as per orders dated March 21, 1963 made by the Commercial Tax Officer Raichur.
Under those orders the taxable turnover of the respondent for the two years in question was determined after deducting the shop rent and the tree tax.
For the assessment year 1959 60, a sum of Rs. 2,10,542 was deducted and the net taxable turnover was determined to be Rs. 25,989.
For the year 1960 61 a sum of Rs. 3,98,350 was deducted and the net taxable turnover was determined to be Rs. 26,657.
The Commercial Tax Officer initiated proceedings under section 12A of the Act in respect of the aforesaid years because he was of the view that some items of turnover had escaped assessment.
As per orders dated June 8, 1966 he made assessment by including in the turnover of the respond ent certain amounts which had escaped assessment under the original assessment orders dated March 21, 1963.
The deduc tion in respect of shop rent and tree tax was, however, allowed to the respondent in orders dated June 8, 1966 as it had been allowed in initial orders dated March 21, 1963.
On June 28, 1967 the appellant, i.e., the Deputy Commis sioner of Commercial Taxes, made two orders revising the orders dated June 8, 1966.
In the said orders the appel lant disallowed the deduction which had been allowed to the respondent in respect of the shop rent.
The appellant in those orders referred to the decision of this Court in Shinde Brother etc.
vs Deputy Commissioner Raichur(1) and held that the amount of shop rent being not excise duty should not be deducted in computing the turnover of the respondent for the two years in question.
The taxable turn over of the respondent for the two years in question was accordingly enhanced.
(1) 595 The respondent made two applications for rectification of the orders of the appellant dated June 28, 1967.
It was urged on behalf of the respondent that the revision of assessments was barred by limitation under section 21(3) of the Act and as such there was a mistake apparent on the record.
The appellant rejected those applications.
The respondent then preferred two appeals to the Sales Tax Appellate Tribunal.
The Tribunal too rejected those ap peals on the ground that they were not maintainable.
The respondent thereafter filed two petitions in the High Court under article 226 for the issuance of writs in the nature of certiorari for quashing the orders dated June 28, 1967.
The High Court, as already mentioned, allowed both the peti tions and quashed orders dated June 28, 1967.
In the opinion of the High Court, orders dated June 28, 1967 made by the appellant were without jurisdiction since they had been made beyond the period of four years from the date of the assessment orders dated March 21, 1963.
Mr. Narayan Nettar, learned counsel for the appellant has contended in appeal before us that the period of four years mentioned in section 21 (3) of the Act should be computed from the orders dated June 8, 1966 made under section 12A of the Act and not from the initial orders of assessment dated March 21, 1963.
The above stand has been controverted by Mr. Mehta, who argued the case amicus curiae as no one appeared on behalf of the respondent.
After giving the matter our consideration, we are of the view that the contention advanced on behalf of the appel lant is well founded.
Before, however, dealing with the matter, we consider it appropriate to reproduce the relevant provisions of the Act.
Section 12A of the Act relates to assessement of escaped turnover.
Sub section (1) of that section at the relevant time read as under: "(1) Where for any reason the whole or any part of the turnover of a dealer has escaped assessment to tax or licence fee or has been assessed at a lower rate than the rate at which it is assessable, the assessing authority may, subject to the provisions of sub section (2), at any time within a period of five years from the expiry of the year to which the tax or licence fee relates, assess to the best of its judgment, the tax or li cence fee payable on the turnover referred to after issuing a notice to the dealer and after making such enquiry as it considers necessary.
" Section 21 of the Act deals, inter alia, with revisional powers of the Deputy Commis sioner.
Sub section (2) and (3) of that section read as under: "(2) The Deputy Commissioner may of his own motion call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by a Commercial Tax Officer subordinate to him and against which no appeal has been preferred to him under section 20, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding and pass such order with respect thereto as he thinks fit.
4 112SCI/76 596 (3) In relation to an order of assessment passed under this Act, the power under sub sections (1) and (2) shall be exercisable only within a period of four years from the date on which the order was passed.
" The short question which arises for determination in these appeals is that in the event of an order having been made under section 12A of the Act, what is the starting point for computing the period of four years, mentioned in section 21 (3), for the exercise of the powers under section 21(2).
Is it the initial assessment order or is it the order made under section 12A ? In the context of the present case, the question to be answered is as to whether the period of four years is to be calculated from March 21, 1963 when the initial assessment orders were made, or from June 8, 1966 when the orders under section 12A of the Act were made.
So far as this question is concerned, we are of the opinion that the period of four years should be calcu lated from June 8, 1966, i.e., the date on which orders under section 12A of the Act were made.
The reason for that is that once an assessment is reopened, the initial order for assessment ceases to be operative.
The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment.
The initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order.
The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment.
As it is we find that in the present case the assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier.
In the circumstances, the only orders which could be the subject matter of revision by the appellant were the orders made under section 12A of the Act and not the initial assessment orders.
In the case of V. Jagannathan Rao & ors.
vs Commission er of Income tax and Exrcess Profits Tax, Andhra Pradesh (1) this Court dealt with section 34 of the Indian Income tax Act, 1922 which relates to reassessment in the case of income escaping assessment.
It was held by this Court that once assessment is reopened the previous under assessment is set aside and the whole proceedings star afresh.
Ramaswami J. speaking for the Court observed: "Section 34 in terms states that once the Income tax Officer decides to reopen the assessment he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or reassess such income, profits or gains.
It is, therefore, manifest that once assess ment is (1) ITR 373.
597 reopened by issuing a notice under sub section (2) of section 22 the previous under assess ment is set aside and the whole assessment proceedings start afresh.
When once valid proceedings are started under section 34(1)(b) the Incometax Officer had not only the juris diction but it was his duty to levy tax on the entire income that had escaped assessment during that year.
" In the case of Commissioner of Sales Tax, Madhya Pradesh vs H.M. Esufali H.M. Abdulali(1) this Court dealt with reassessment made under section 19 of the Madhya Pradesh General Sales Tax Act, 1958.
It was held that when reas sessment is made, the former assessment is completely reo pened and in its place fresh assessment is made.
Hegde J. speaking for the Court observed: "What is true of the assessment must also be true of reassessment because reas sessment is nothing but a fresh assessment.
When reassessment is made under section 19, the former assessment is completely reopened and in its place fresh assessment is made.
While reassessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover.
While making assessment under section 119, if the assessing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce his account books.
If contention taken on behalf of the assessee is correct, the assessee can escape his li ability to be reassessed by adopting an obstructive attitude.
It is difficult to conceive that such could be the position in law." In International Cotton Corpn.
(P) Ltd. vs Commercial Tax Officer, HubIi & Ors.
(2) this Court held that once can assessment order had been rectified and it was sought to make a further rectification of that order, the period of limitation for making such further rectification would commence not from the date of the original assessment order but from the date of the earlier rectification order.
Alagi riswami J. speaking for the Court in this context observed: "The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance.
What was sought to be rectified was the assessment order rectified as a consequence of this Court 's decision in Yaddalam 's case.
After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified.
It is admitted that all the rectification orders would be within time calculated from the original rectification order.
Rule 38 itself speaks of 'any order ' and there is no doubt that the rectified order is also 'any order ' which can be rectified under Rule 38." ; I.T.R. 271.
(2) [1975] 2 S.C.R. 345.
598 Although the above case related to an order which had been subsequently rectified, the principle laid down therein would, in our opinion, be also applicable in cases where reassessment is made on the ground that certain amounts of turnover had escaped assessment.
Before we conclude, we may observe that according to section 33B of the Indian Income tax Act, 1922 the Commis sioner cannot revise an order of reassessment made under the provisions of section 34 of the Act.
Likewise, sub section (2) of section 263 of the Incometax Act, 1961 expressly prohibits the revision by the Commissioner of Income tax of an order of reassessment made under section 147 of Act.
No such prohibition in the provisions of the Act with that Act.
Nosuch prohibition brought to our notice.
which we are concerned has, however, been brought to our notice.
We would, therefore, accept the appeals, set aside the judgment of the High Court and dismiss the petitions under article 226 filed by the respondent.
Looking to all the facts, we leave the parties to bear their own costs in this Court as well as in the High Court.
| IN-Abs | In respect of the assessment years 1959 60 and 1960 61, fresh assessments were made under section 12A of the Mysore General Sales Tax Act 1957 by the , Commercial Tax Offi cer.
By his order dated June 8, 1966, certain amounts which had escaped assessment under the original assessment orders dated March 21, 1963 were included in the turnover of the respondent, but the deductions in respect of shop rent and tree tax were, however, allowed as in the initial orders.
The appellant, in exercise of the powers under section 21(2) of the Act, by his orders dated June 28, 1967 revised the orders dated June 8, 1966 disallowing the deductions in respect of the shop rent, following the decision of this Court in Shinde Brother etc.
vs Deputy Commissioner Raichur Two rectification applications and the two appeals therefrom on the ground that the revisions of assessment were barred by limitation under section 21(3) of the Act and, as such, there was a mistake apparent on the record were rejected as not maintainable.
However, the writ petitions filed were allowed by the High Court holding that the orders dated June 28, 1967 were without jurisdic tion since they had been made beyond the period of four years from the date of the initial assessment orders dated March 21, 1963.
On appeals by special leave to this Court, HELD: The contention advanced on behalf of the appel lants that the period of four years mentioned in section 21(3) of the Act should be computed from the orders dated June 8, 1966 made under S 12A of the Act and not from the ini tial orders of assessment dated March 21, 1963 is well founded.
[595 C D] Once an assessment is reopened the initial order for as sessment ceases to be operative.
The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment.
The initial order for reassessment cannot be said to survive even partially although the justification for dessessment arises because of turnover escaping assess ment in a limited field or only with respect to a part of the matter covered by the initial assessment order.
The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment.
[596 D E] In the present case the assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier and the only orders which could be the subject matter of revision by the appellant were the orders made under section 12A of the Act and not the initial assessment orders.
[596 E F] J. Jaganmohan Rao & Ors.
vs Commissioner of Income tax and Excess Profits Tax, Andhra Pradesh [1970] 1 S.C.R. 726=75 ITR 373; Commissioner of Sales Tax, Madhya Pradesh vs
H.M. Esufali H.M. Abdulali ITR 271, followed.
International Cotton Corporation (P) Ltd. vs Commercial Tax Officer, HubIi & Ors.
[1975] 2 S.C.R. 345, applied.
|
Appeal No. 873 of 1975. (From the Judgment and Order dated 11 11 1974 of the Allahabad.
High Court in Civil Misc.
Writ Petition No. 6976/74) AND Civil Appeal No. 1748 of 1975.
(Appeal by Special Leave from the Judgment and Order dated ' 8 11 1974 of the Allahabad High Court in Civil Misc.
Writ Petition No. 6932/74).
AND Civil Appeal No. 1425 of 1974.
(From the Judgment and Order dated 1 9 1972 of the Allahabad.
High Court in Special Appeal No. 8/66).
A.N. Parekh, for the appellants in CA 1748/75.
Yogeshwar Prasad, for the appellants in CA 873/75.
D.N. Misra for the appellant in CA 1425/74.
L.N. Sinha, Solicitor General, S.N. Prasad (In CA 873/75) and Girish Chandra, for the respondents iii all the appeals.
The Judgment of the Court was delivered by RAY, C.J.
Civil Appeals Nos. 873 and 1425 are by cer tificate under Article 133(1) of the Constitution of India and Civil Appeal No. 1748 is by special leave.
605 (Ray, C.J.) These appeals turn on the question whether the Commis sion described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose condi tions under section 14 A and Section 14 B on the commodities in respect of which business can be carried on by persons who apply for registration.
This Court in Union of India & Anr.
vs M/s. Rajdhani Grains and Jaggery Exchange Ltd. & Ors.
(1975 Supp.
S.C.R.1) dealt with this specific question and came to the conclusion that the specification of the commodities in respect of which the business can be carried on is a condition con cerned with the regulation and control of the business relating to forward contracts.
It is idle to suggest that the Commission in granting certificate of registration to carry on business will not be competent to specify the commodities in which the persons asking for registration will deal.
Another contention was raised before us that the provi sions contained in Section 4 of the Forward Contract (Regu lation) Act 1952 do not confer power on the Commission to impose conditions.
This contention is also repelled by the decision of this Court to which reference has already been made.
It has been held in that case that the Commission alone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association.
Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which busi ness of forward contract can be carried on.
Another contention was advanced before us that with regard to the recognised associations the Commission had no power to impose conditions with regard to commodities in which they deal.
This contention is also answered by the decision of this Court (supra).
Further the provisions contained in Chapter III A specifically deal with registra tion of all associations concerned with regulation and control of forward contracts and the power of the Commis sion to grant or refuse such certificate of registration.
All contentions advanced by the appellants are already answered ' by the decision of this Court (supra) and the observations made herein.
The appeals are therefore dis missed.
There will be no order as to costs.
P.H.P. Appeals dismissed.
| IN-Abs | The appellants contended that the Forward Market Commis sion under the Forward Contract (Regulation) Act 1952 cannot impose conditions under sections 14A and 14B on the commodities in respect of which business can be carried out by persons who apply for registration.
Secondly, the provisions.
contained in section 4 of the Act do not confer power on the Commission to impose conditions.
Thirdly, in respect of recognised associations, the Commission had no power to impose conditions with regard to commodities in which they deal.
Dismissing the appeal, HELD: All the 3 conditions raised in the present appeal are covered against the appellant by the decision of this Court in the case of Union India vs M/s Rajdhani Grain and Jaggery Exchange Ltd. reported in [1975], Supp, SCR 1.
[605 B F]
|
Civil Appeals Nos.
1912 1914 of 1976.
(Appeal by special Leave from the Judgment and order dated 7 2 1975 of the Madhya Pradesh High Court in Misc.
Petition No. 231/74 and 685 and 732/73 respectively.) I.N. Shroff and H.S. Parihar, for the appellants.
S.K. Gambhir, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
In this appeal by special leave, on an application filed by the respondents before the High Court of Madhya Pradesh, the High Court struck down the constitu tional validity of sub section
(5) (a) of section 37 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 hereinafter referred to as 'the Act ' (No.
24 of 1973).
The impugned sub section runs as follows: "(5) Every commission agent shall be liable (a) to keep the goods of his principal in safe custody without any charge other than the commission payable to him; and" 620 The High Court thought that this statutory provision places unreasonable restriction on the commission agent and puts great burden on him for storing the goods given to him by the principal without charging the commission for its safe custody.
The Act is a social piece Of legislation and should have been liberally construed so as to advance the object of the Act and fulfil the aims to be achieved there by.
The main purpose of the Act is to secure a scientific method of storage, sale, distribution and marketing of agricultural produce and cut out as far as possible middle man 's profit.
The Act, therefore, contains provisions of a beneficial nature preventing profiteering tendencies.
It is not, however, the hardship that can be termed unreasonable so as to make a statute unconstitutional.
Moreover, the High Court does not appear to have looked to.
the scheme of the Act and has in fact completely overlooked the provisions of section 37(4) which runs as follows: "(4) The commission agent shall recover his commission only from his principal trader at such rates as may be specified in the bye laws including all such expenses as may be incurred by him in storage of the produce and other services rendered by him." This section clearly empowers the commission agent to charge such rates as may be specified by the bye laws even for the storage of the Produce and other services rendered by him.
This provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission.
All that the Act prevents is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal.
This is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for safe custody.
Section 37 (4), however, compen sates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him.
This section, therefore, clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose of the storage.
That apart section 2(e) of the Act whiCh defines a "Commission agent" empowers him to charge any commission o.r percentage upon the amount involved in such transaction.
For these reasons, therefore, we do not see any hardship or unreasonableness in the provisions Of section 37(5)(a) of the Act.
The High Court, therefore, committed an error of law in striking down this provision as unconstitutional.
In our opinion, therefore, section 37 (5) (a) of the Act is constitu tionally valid.
In the view we take, it is not necessary to go into the question whether the law violates article 19 of the Constitution which stands suspended during the emergen cy.
The appeal is accordingly allowed.
The order of the High Court is quashed.
In the circumstances, there will be no order as to.
costs.
M.R. Appeal al lowed.
| IN-Abs | The respondents challenged the constitutional validity of section 37(5)(a) of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972, before the High Court on the ground that it places unreasonable restriction on the commission agent and puts a great burden on him for storing the goods given to him by his principal, without charging the commission for its safe custody.
The plea was accepted and the High Court struck down the impugned provision as unconstitutional.
Allowing the appeal by Special Leave, the Court, HELD: Section 37(5)(a) is constitutionally valid and there is no hardship or unreasonableness in it.
The provi sion prevents the commission agent from levying any addi tional charges from the farmer or the principal for safe custody of the goods.
but section 37(4) of the Act compensates him by authorising him to charge not only his commission from the, principal trader, but also the expenses incurred by him for the purpose of storing the produce, and the services rendered by him.
[620 D, E, G]
|
Appeal Nos.
& 1511 of 1974.
(Appeals by certificate./Special Leave from the Judg ment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Misc.
Petition No. 136/73).
Criminal Appeal No. 255 of 1974.
(From the Judgment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Criminal Revision No. 159/71) and Civil Appeal NOs.
344 346 of 1976.
(Appeals by Special Leave from the Judgment and.
Order dated 24 10 1972 of the Orissa High Court in C.J.C. 185, 186 and 217 of 1969).
Frank Anthony, in CA 1489, CrI. A. 255/74 and CA 346/76 for the appellant in CAs 1489 and 1511/74 and Crl.
A. No. 255/74 and RR. 1 and 2 in CAs 346/76.
Soli J. Sorabiee in CA 1511, Crl.
A. 255/74 1.
B. Dadac hanji, K. J. John O.C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl.
A. No. 255/74 and RR. 1 and 2 in CAs 346/76.
Gobind Das (In CAs 344 346/76) B. Parthasarthi, for the appellants in CAs 344 346/76.
Soli J. Sorabjee, B.P. Maheshwari and Suresh Sethi, for R. 3 in CA 346/76.
Brijbans Kishore, B.R. Sabharwal, for RR.
in CA 345/76.
Gobind Das,Raj Kumar Mehta,for the Intervener (State of Orissa) in C.A. 1489/74.
The Judgment of the Court was delivered by RAY, C.J.
These appeals were heard together because they raise common questions of law relating to the interpre tation of the Constitution.
Civil Appeals No. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 are directed against a judgment of the Madhya Pradesh High Court dated 23 April, 1974.
We shall refer to these as the Madhya Pradesh cases.
Civil Appeals No. 344 346 of 1976 relate to a judgment.
of the orissa High Court dated 24 October, 1972.
We shall refer to these appeals as the Orissa cases.
613 The controversy in the Madhya Pradesh cases relates to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, hereinafter referred to as the Madhya Pradesh Act.
The controversy in the Orissa cases arises out of the Orissa Freedom of Religion Act, 1967 hereinafter referred to as the Orissa Act.
The provisions of the 'two Acts in so far as they relate to.
prohibition of forcible conversion and punishment there for, are similar and the questions which have been raised before us are common to both of them.
It will, therefore, be enough, for the purpose of appreciating the controversy, to make a somewhat detailed mention of the facts of the Madhya Pradesh case.
The Sub Divisional Magistrate of Baloda Bazar sanctioned the prosecution of Rev. Stainislaus for the commission of offences under sections 3, 4 and 5(2) of the Madhya Pradesh Act.
When the case came up before Magistrate, First Class, Baloda Bazar, the appellant Rev. Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act was ultra vires the Constitution as it did not fall within the purview of Entry I of List II and Entry I of List III of the Seventh Schedule.
The appellant 's conten tion was that it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature.
An objection was also raised that the provisions of sections 3, 4 and 5(2) of the Act contra vened Article 25 of the Constitution and were void.
The Magistrate took the view that there was no force in the. objection and did not refer the case to the High Court under section 432 of the Code of Criminal Procedure, 1898.
The appellant applied to the Additional Sessions Judge for a revision of the Magistrate 's order refusing to make a reference to the High Court.
The Additional Sessions Judge also took the view that no question of constitutional impor tance arose in the case and he did not think it necessary to make a reference to the High Court.
The appellant thereupon applied to the High Court for revision under section 439 of the Code of Criminal Procedure and he also filed a petition under Articles 226 and 227 of the Constitution.
The High Court heard both the revision and the writ petition together.
The appellant raised the following three questions in the High Court : (i) that sections 3, 4, 5(2) and 6 of the M.P. Dharma Swatantraya Adhiniyam, 1968 are viola tive of the petitioner 's fundamental rights guaranteed by Article 25 ( 1 ) of the Consti tution of India; (ii) that in exercise of powers conferred by Entry No. 1 of List II, read with Entry No. 1 of List III of the Seventh Schedule the Madhya Pradesh Legislature in the name of public order could not have enacted 614 the said legislation.
But the matter would fail within the scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary powers on Parliament to legislate in respect of any matters not covered by List I, List I1 or List III.
Therefore, it is contended that Parliament alone had the power to legislate on this subject and the legisla tion enacted by the State Legislature is ultra vires the powers of the State legislature; (iii) that section 5(1) and section 5(2) of the M.P. Dharma Swatantraya Adhiniyam, 1968 amount to testimonial compulsion and, therefore, the said provisions are violative of Article 20(3) of the Constitution of India.
The High Court examined the controversy with reference to the relevant provisions of the Madhya Pradesh Act and the Madhya Pradesh Dharma Swatantraya Rules, 1969 and held as follows : "What is penalised is conversion by force, fraud or by allurement.
The other element is that.
every person has a right to profess his own religion and to act according to it.
Any interference with that right of the other person by resorting to conversion by force, fraud or allurement cannot, in our opinion, be said to contravene Article 25(1) of the Con stitution of India, as the Article g uarantees religious freedom subject to public health.
As such, we do not find that the provisions of sections 3, 4 and 5 of the M.P. Dharma Swatantraya Adhiniyam, 1968 are violative of Article 25(1) of the Constitution of India.
On the other hand, it guarantees that religious freedom to one and all includ ing those who might be amenable to conversion by force, fraud or allurement.
As such, the Act, in our opinion, guarantees equality of religious freedom to all, much less can it be said to encroach upon the religious freedom of any particular individual.
" The High Court therefore held that there was no justi fication for the argument that sections 3, 4 and 5 of the Madhya Pradesh Act were violative of Article 25(1) of the Constitution.
The High Court in fact went on to hold that those sections "establish the equality of religious freedom for all citizens by prohibiting conversion by objec tionable activities such, as conversion by force, fraud and by allurement".
As regards the question of legislative competence, the High Court took note of some judgments of this Court and held that as "the phrase 'public order ' conveys a wider connotation as laid down by their Lordships! of the Supreme Court in the different cases.
We are of the opinion that the subject matter of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 fails within the scope of Entry No. I of List II of the Seventh Schedule relating to the State List regarding public order".
615 On the remaining point relating to testimonial compul sion with reference to Article 20(3)of the Constitution, the High Court held that section 5 of the Madhya Pradesh Act read with Form A, prescribed by the Rules, merely made provision for the giving of intimation to the District Magistrate about conversion and did not require its maker to make a confession of any offence as to whether the conver sion had been made on account of fraud, force or allurement, 'which had been penalised by the Act.
The High Court thus held that mere giving of such information was not violative of Article 30(1) of 'the Constitution.
But the question of testimonial compulsion within the meaning of Article 20(3) of the Constitution has not been raised for our considera tion.
The Orissa cases arose out of petitions under Article 226 of the Constitution challenging the vires of the Orissa Act.
The High ,Court stated its conclusions in those cases as follows: (1) Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion.
(2) Prohibition of conversion by 'force ' or by 'fraud ' as defined by the Act would be covered by the limitation subject to which the right is guaranteed under Article 25 (1).
(3) The definition of the term 'inducement ' is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25 (1) cannot be said to cover the wide definition. ' (4) The State LegisLature has no power to enact the impugned legislation which in pith and substance is a law relating to religion.
Entry No. 1 of either List II or List III does not authorise the impugned legislation.
(5) Entry 97 of List I applies.
The High Court has therefore declared the Orissa Act to be ultra vires the Constitution and directed the issue of mandamus to the State Government not to give effect to it.
The criminal cases which were pending have been quashed.
The common questions which, have been raised for our consideration are (1) whether the two Acts were violative of the fundamental right guaranteed under Article 25(1) of the Constitution, and (2) whether the State Legislatures were competent to enact them ? Article 25(1) of the Constitution reads as follows: "25(1) Subject to public order, ' morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
" 616 Counsel for the appellant has argued that the right to 'propagate ' one 's religion means the right to convert a person to one 's own religion.
On that basis, counsel has argued further that the right to convert a person to one 's own religion is a fundamental right guaranteed by Article 25 (1) of the Constitu tion.
The expression 'propagate ' has a number of meanings, including "to multiply specimens of (a plant, animal, disease etc.) by any process of natural reproduction from the parent stock", but that cannot, for obvious reasons, be the meaning for purposes of Arti cle 25 (1) of the Constitution.
The Article guarantees a right to freedom of religion, and the expression 'propagate ' cannot there fore be said to have been used in a biologi cal sense.
The expression 'propagate ' has been de fined in the Shorter Oxford Dictionary to mean "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)" According to the Century Dictionary (which is an Encylopaedic Lexicon of the English Language) Vol.
VI, 'propagate ' means as follows : "To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as propagate a report; to propagate the Christian religion".
We have no doubt that it is in this sense.
that the word 'propagate ' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one 's own religion, but to transmit or spread one 's religion by an exposition of its tenets.
It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the follow ers of one particular religion, and that, in turn, postu lates that there is no fundamental right to convert another person to one 's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the coun try alike.
The meaning of guarantee under Article 25 of the Con stitution came up for consideration in this Court in Ratilal Panachand Gandhi vs The State of Bombay & Ors.
(1) and it was held as follows : "Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such, religious belief as may be approved of by his judgment or con science but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." (1) [1954]S.C.R. 1055.
617 This Court has given the correct meaning of the Article, and we find no justification for the view that it grants.
a fundamental right to convert persons to one 's own reli gion.
It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons follow ing the other religions.
What is freedom for one, is free dom for the other, in equal measure, and there can there fore be no such thing as a fundamental right to convert any person to one 's own religion.
It was next been argued by counsel that the Legislatures of Madhya Pradesh, and Orissa States did not have legisla tive competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'rel igion ' and fall under the Residuary Entry 97 in List 1 of the Seventh Schedule to the Constitution.
It is not in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to.
another by use of force or allurement, or by fraudulent means, and matters incidental thereto.
The expressions "allurement" and 'fraud ' have been defined by the.
Section 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and section 4 pena lises such forcible conversion.
Similarly, section 3 of the Orissa Act prohibits forcible conversion by the use of force or by inducement or by any.
fraudulent means, and section 4 penalises such forcible conversion.
The Acts therefore dearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States.
The expression "Public order" is of wide conno tation.
It must have the connotation which it is meant to provide as the very first Entry in List II.
It has been held by this Court in Ramesh Thapper vs The State of Madras(1) that "public order" is an expression of wide connotation and signifies state of tranquility which pre vails among the members of a political society as a result of internal regulations enforced by the Government which they have established".
Reference may also be made to the decision in Ramjilal Modi vs State of U.P. (2) where this Court has held that the right of freedom religion guaranteed by Articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that "it cannot be predicat ed that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order".
It has been held that these two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.
Refer ence may as well be made to the decision in Arun Ghosh vs State of WeSt Bengal(a) where it has been held that if a thing disturbs the current of the life of the community, (1) ; (2) ; (3) ; 618 and does not merely affect an individual, it would amount to disturbance of the public order.
Thus if an attempt is made to raise communal passions, e.g. on the ground that some one has been "forcibly" converted to anoth er religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large.
The impugned Acts therefore fall within: the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.
The two Acts do not provide for the regulation of religion and! we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.
In the result Civil Appeals No. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 fall and are dismissed while Civil Appeals No. 344 346 of 1976 are allowed and the impugned judgment of the Orissa High Court dated 24 October, 1972 is set aside.
The parties shall pay and bear their own costs, in Madhya Pradesh appeals.
The State shall pay the respondent costs in the Orissa appeal according to previous direction.
P.H.P. C.As.
1489 & 1511 of 1974 and Cr.
A. No. 255 of 1974 dismissed.
344 346 of 1976 allowed.
| IN-Abs | The constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, was challenged in the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967 was challenged in the High Court of Orissa.
The two Acts prohibit forcible conversion and make the offence punishable.
The Madhya Pradesh High Court upheld the validity of the Act.
The Orissa High Court held that article 25(2) of the Constitution guarantees propogation of religion and conversion is a part Christian religion; that the State Legislature has no power to enact the impugned legislation which in pith and sub stance is a law relating to religion; and that entry 97 of List I would apply.
Upholding the validity of both the Acts, HELD: (1) Article 25 guarantees to all persons right to freedom and conscience and the right freely to profess, practice and propogate religion subject to public order, morality and health.
The word 'propogate ' has been used in the Article as meaning to transmit or spread from person to person or from place to place.
The Article does not grant right to convert other person to one 's own religion but to transmit or spread one 's religion by an exposition of its tenets.
The freedom of religion enshrined in article 25 is not guaranteed in respect of one religion only but covers all religions alike which can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following other religion.
What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one 's own religion.
[616 B F, 617 A B] (2) The Madhya Pradesh Act prohibits conversion from one religion to another by use of force, allurement or fraudu lent means and matters incidental thereto.
Similarly, the Orissa Act prohibits conversion by the use of force or by inducement or by any fraudulent means.
Both the statutes, therefore, clearly provide for the maintenance of public order because if forcible conversion had not been prohibited that would have created public disorder in the States.
The expression "public order" has a wide connotation.
[617 C E] Ratilal Panachand Gandhi vs The State of Bombay & Ors. ; Ramesh Thappar vs The State of Madras ; ; Ramjilal Modi vs State of U.P. ; and Arun Ghosh vs State of West Bengal ; , followed.
(3) If an attempt is made to raise communal passions, e.g. on the ground that someone has been forcibly converted to another religion it would in all probability give rise to an apprehension of a breach of the public order affecting the community at large The impugned Acts therefore fall within the purview of Entry 1 of List II of the Seventh Schedule as they are meant to avoid 5 112SCI/77 612 disturbance to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.
The two Acts do not provide for the regulation of religion and do not fall under Entry 97 of List I. [618 A C]
|
Appeal No. 1827 of 1970.
(From the Judgment and Decree dated 28 4 1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No. 133 of 1968).
S.N. Andley and Uma Dutta, for the appellants Ram Panjwani and H.S. Harihar, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal on certificate by Prithvi Raj Taneja (now deceased and represented by his legal repre sentatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensa tion for the acquisition of land.
A plot of land measuring 27 bighas and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction o,f a police station and residential quarters for policemen.
A bigha, it is stated, is equivalent to 2,500 square yards.
The land sought to be acquired measured 68,658 square yards.
Notification under section 4 of the Land Acquisition Act for the acquisition of the land was issued on April 7, 1961.
The Land Acquisition Officer as per award dated June 13, 1961 awarded compensation for the land at the rate of Rs. 100 per bigha.
In addition to that, he awarded a sum of Rs. 1,175 for large trees and Rs. 1,380 for small trees standing on the land.
The appellant was also awarded Rs. 1,000 as compensation for a well which had been sunk in the. land, and Rs. 800 for a house standing on the land In all, the appellant was awarded a sum of Rs. 7,616.
including solatium at the rate.
of fifteen per cent by the Land Acqui sition Officer.
The appellant wanted compensation for the land at the rate of Rs. 10 per square yard.
He accordingly had the matter referred to the District Judge.
Learned Additional District Judge determined the market value of the land in question to be Rs. 900 per bigha.
Regarding the well, the Additional District Judge awarded compensation of Rs. 3,000 as against the amount of Rs. 1,000 which had been awarded by the Land Acquisition Officer.
In other respects, the award of the Land Acquisition Officer was upheld.
Computing solatium at the rate of 10 per cent, the.
total amount awarded by District Judge to the appellant was Rs. 32,285 besides interest at the rate of six per cent per annum.
The appellant not being satisfied with the award of the Additional District Judge took the matter in appeal to the High Court.
The High Court awarded compensation to the appellant at the rate of Re. 1.
per square yard for the land in question.
The High Court also awarded Rs. 2,500 for the loss of earnings to the appellant.
The rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to, fifteen per cent.
In all, the appel lant was held entitled to a compensation of Rs. 88,381 besides interest at the rate of six per cent per annum.
The appellant thereupon obtained a certificate of fit ness for appeal to this Court under article 133(1)(a) of the Constitution, as it stood at that time.
In appeal before us, Mr. Andley on behalf of the appel lant has argued that more than half of the land in dispute is within.
the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly.
It is further stated that the land in question abutts Ashok Nagar Isagarh Road and is situated near the tehsil building and the. railway station.
Learned counsel has also referred to the fact that small plots of land adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960.
In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute.
The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed.
We agree with the High Court that the price 635 paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
We may in this context refer to a recent judgment in the case of Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
C) wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
Section 23 of the Land Acquisition Act provides that in mining the amount of compensation to, be awarded for the land acquired under the Act, the Court shall take into.
account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act.
The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired.
In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded.
There is an element of guess work inherent in most cases involving determination of the market value of the acquired land.
But this in the very nature of things cannot be helped.
The essential thing is to keep in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be dis turbed (see Thakur Kanta Prasad Singh (dead) by L. rs.
vs State of Bihar(2).
After having been taken through the material on the record, we find no infirmity in the judgment of the High Court as might induce us to disturb its find ing.
The appeal consequently fails and is dismissed but in the circumstances without costs.
Appeal dismissed.
| IN-Abs | The appellant 's land was acquired and compensation was awarded to him by the Land Acquisition Officer.
Demanding a higher amount, the appellant had the matter referred to the District Judge who increased the award, but still discon tented, the appellant went in appeal.
The High Court also increased the compensation but could not satisfy the appel lant who thereupon obtained leave to appeal to the Supreme Court, contending that small plots of land adjoining his large area were sold at much higher rates.
Dismissing the appeal, the Court, HELD: 1.
The price ' paid for small plots of laud cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
The large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
[635 A B] Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
; , applied.
The essential thing is to keen in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed.
[635 D E] Thakur Kanta Prasad Singh (dead) by L. Rs vs State of Bihar ; , applied.
|
Civil Appeal No. 883 and 898 905/75.
Appeals by Special Leave from the: Judgment and Order dated 20 2 75 of the Karnataka High Court in Writ Petition Nos.
5825/74 and 5818, 5820, 5821, 5822, 5823, 5824, 5828 and 5829 of 1974.
R.B. Datar for the Appellants in all the appeals.
V.P. Raman, Addl.
Genl (In CA 883/75) and N. Nettar for RR 1 and 2 in all the appeals.
The Judgment of the Court was delivered by JASWANT SINGH J.
This judgment shall dispose of Appeals Nos. 883 and 898 to 905 of 1975 which are, directed against the common judgment dated February 20, 1975 of the High Court of Karnataka at Bangalore dismissing writ petitions Nos.
5825, 5818, 5820, 5822 to 5824, 5828 and 5829 of 1974 on the ground that the appellants had no right to maintain the same.
The circumstances leading to 'these appeals are: The appellants held the posts of Shambogues on hereditary basis under the Mysore Village Offices Act, 1908.
In writ peti tion No. 133 of 1959 entitled Gazula Daseratha Rama Rao vs State of A.P. & Ors.
(1) decided on December 6, 1960, this Court held that a law which recognised the custom by which a preferential right to, an office vested in the members of a particular family was not consistent with the fundamental right guaranteed by Article 16 of the Constitution; that a custom which is recognised by law with regard to a heredi tary office must yield to a fundamental right and_section 6(1) of the Madras Hereditary Village Offices Act/II of 1895 in so far as it made discrimination on the ground of descent only was violative of the ' fundamental right under Article 16(2) of the Constitution and was void.
With a view to giving effect to tile principle settled by this decision, the Legislature of the.
then State of Mysore comprising the territories the erstwhile States of Mysore and Coorg and certain parts of the erstwhile Stales of Bombay, Hyderabad and Madras enacted the Mysore Village Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act ') abolishing all the hereditary village offices including the office of Shambogue or village Ac countant created under the Mysore Village Offices Act, 1908.
Pursuant to sub section (3) of section 1 which autho rise.d the State Government to fix a date for the commence ment of the Act, the Government of Mysore issued a notifi cation on January 9, 1963 notifying that the Abolition Act would come into force with effect from February 1, 1963.
(1) ; 1961 S C. 564.
6 112 SCI/77 628 Shortly after the according of the assent to the Aboli tion Act by the President on July 8, 1961, the Governor of Mysore flamed rules called the Mysore General Service (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961 in exercise of the powers vested in him under the proviso to Article 309 of the Con stitution and other powers enabling him in that behalf.
These Rules, as evident from their title, were designed to regulate the recruitment, pay and other conditions of serv ice of Village Accountants.
Rule 10 of the 1961 Rules which was in the nature of a non obstante provision provided for the initial recruitment to the posts of Village Accountants to be made from amongst persons holding the posts of village officers on the date of commencement of those Rules provided that such persons had passed the S.S.L.C. examination or an equivalent examination and their age did not exceed 40 years on the said date.
By a proviso which was introduced in the year, 1963, it was provided that in the event of persons satisfying the qualifications mentioned in Rule 7 not being available even after the vacancies are twice advertised, the recruitment should be made from amongst persons holding the posts of village officers who were not more than 50 years of age on the date of commencement of the said Rules and who had passed the Lower Secondary or Vernac ular Final or equivalent examination.
By a notification issued on January 6, 1963, the Govern ment of Mysore directed the Deputy Commissioners to appoint persons recruited under the 1961 Rules as village account ants and relieve the then holders of their offices.
On the issue of the aforesaid notification dated January 9, 1963, a number of writ petitions under Article 226 of the Constitution were filed in the High Court challenging the legality and constitutional validity of the Abolition Act on the ground that it was a piece of colourable legislation.
During the pendency of the writ petitions, an ad interim order staying the operation of the aforesaid Notification dated January 9, 1963 was issued by the High Court.
As a consequence of the stay order, the appellants and a number of other persons who were holding tile posts of Shambogues under the Mysore Village Offices Act, 1908 had to be con tinued by the State Government in the posts held by them.
The writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B.R. Shankaranarayana & Ors.
vs State of Mysore(1).
Thus the constitutional validity of the Abolition Act was finally upheld by the Court.
During the pendency of the appeals against the judgment of the High Court dated December 9, 1963, the State Legislature enacted the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act ') which came into force on April 1, 1964.
Section 16 of the Act provides for the appointment of Vil lage Accountants and the continuance of village accountants hold the said posts immediately before the commencement of the Act.
Sub section (1) of section 16 lays down that, subject to the general orders of the State Government and the Divisional Commissioner, the Deputy Commissioner can appoint Village Accountants for villages or groups of vil lages.
Sub section (2) of section 16 provides that the (1) A.I.R. 1966 S.C. 1571.
629 persons holding the office of the Village Accountant before the commencement of the Act, shall be deemed to be Village Accountants for such villages till another person is ap pointed under sub section (1 ) of section 16.
Thus sub section (2) of section 16, it would be seen, was designed to cover the case of the persons who had perforce to be continued as Shambogues because of the aforesaid stay order issued by the High Court despite the abolition of those posts by the Abolition Act.
The 1961 Rules were repealed and replaced by another set of Rules called the Karnataka General Services (Reve nue.
Subordinate Branch) Village Accountants (Recruitment) Rules, 1970 (hereafter referred to as the 1970 Rules) made by the State Government in exercise of the powers conferred by sections 16 and 17 of the Act.
Rules 4 and 5 of the 1970 Rules which were amended from time to.
time stood as follows on the relevant date : "4.
Recruitment.
(1) Recruitment to the cadre of village Accountant shah be made by direct recruitment from amongst : (i) persons who have served as Village Offi cers; (ii) local candidates whether in service or not, who have put in a total of not less than one year of service as on 1st January, 1970, if sufficient number of eligible persons are not available under (i); (ii) persons who have been regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of the re cruitment and working as Panchayat Secretaries who have passed the S.S.L.C. examination or any other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ; (iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of recruitment and working as Panchayat Secretaries who (a) have passed the Middle School examination or any other examination declared as equiva lent thereto by the State Government; and (b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if sufficient number of eligible persons are not available under (ii); 630 (c) are not more than 50 years of age as on 1st April, 1967; (iv) xx xx xx (v) others, if sufficient number of persons are not available under any of the above categories.
(2) No persons other than the persons referred to in categories (ii) and (iii) of sub rule (1) "shall be eligible for appoint ment under these rules unless he has passed the S.S.L.C. examination or any examination declared by State Government as equivalent thereto.
(3) The limit for appointment under sub rule (1) shall be (i) 33 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and (ii) 28 years in the case of others as on 1st January, 1970.
Provided that in the case of person who have served as Village Officer or as Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.
Provided further that in the case of local candidates, such age shall be as on 1st Janu ary, 1965: Explanation For the purpose of this rule "ViIIage Officer" means a person who held a 'Village Office ' other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961)." "5.
Committee for selection (1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commission er shall be the Secretary.
(2) The Committee shall call for applica tion for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Direct Recruitment by Selection) Rules, 1967.
(3) The decision of the Committee shall be final subject to the approval of the Division al Commissioner.
(4) The list approved by the Divisional Commissioner shall be published and appoint ments shall be made in order in which the names of persons selected are arranged in the said list.
" 631 Pursuant to the 1970 Rules, applications were invited by the Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Has san.
After sorting out the applications received in re sponse to the: advertisement, the Committee interviewed the applicants who. were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants.
This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition No. 1871 of 11972 entitled Komari Gowda vs State of Mysore & Ors.
and the Committee was directed.
to select the candidates afresh in accordance with law.
Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candi dates which was published in the Karnataka Gazette on May 30, 1974.
Thereafter, the Deputy Commissioner, ' Hassan issued orders of appointment of the candidates who were selected by the Recruitment Committee.
Some of the candi dates thus selected were posted as Village Accountants under section 16(2) of the Act to the villages in which the appellants were functioning.
As the.
appellants had to give up their posts in consequence.
of the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution, (ii) the selection and appointment of respondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under section 16(2) of the Act.
The writ petitions having been dismissed by the High Court as stated above.
, the appellants have come up in appeal to this Court.
The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions.
It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article.
It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition.
The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R. Shankanarayana & Ors.
vs State of Mysore (supra), and the first preference in the matter of appointment of Village Accountants having been given by Rule 4 of the 1970 Rules to all persons.
belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the afore said notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement of, Articles 4 and 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who. are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational 632 qualifications for the post in question.
The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions.
The appeals accordingly fail and are dismissed but without any order as to costs.
P.H.P. Appeals dismissed.
| IN-Abs | The appellants held the post of Shambhogues on hereditary basis under the Mysore Village Offices Act 1908.
This Court in the case of Gowla Dasrath Ramarao held that a law which recognises the custom by which a preferential right to an office vested in the members of a particular family was not consistant with the fundamental right guaranteed by Article 16 of the Constitution and that the Madras Hereditary Village Offices Act of 1895 in so far as it made discrimina tion on the ground of descent only was violative of Article 16(2) of the Constitution and, therefore, void.
With a view to give effect to the said judgment of this Court Mysore Village Offices Abolition Act of 1961 was enacted abol ishing all the hereditary Village Offices including the office of Shambhogues or Village Accountants created under the Mysore Villages Offices Act 1908.
The President gave his assent to the said Act.
Thereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to regulate the recruitment, pay and other conditions of service of Village Accountants.
Rule 10 provided for the initial recruitment to the post of Village Accountants to be made from amongst persons holding posts of Village Offi cers on the date of commencement of those rules provided they fulfilled certain educational qualifications and were below a certain age Challenge to the constitutional validi ty of the said Act was negatived by this Court in the case of B.R. Shankaranarayana & Ors.
vs State of Mysore AIR.
The State Legislature enacted the Karnataka Land Revenue Act 1964 Section 16 of the said Act provides for the appointment of Village Accountants and the continu ance of Village Accountants hold the said post immediately before the commencement of the Act.
Section 16(e) provides that persons holding the office of the Village Accountant before the commencement of the Act shall be deemed to be village Accountants for such villages till other persons were appointed.
The 1961 rules were repealed and replaced by Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules.
Rules 4 and 5 lay down the eligibility of the persons for the ap pointment as Village Accountant .and the constitution of a Committee for selection and the method of selection.
The Recruitment Committee invited applications, interviewed the applicants who were eligible and prepared a list of selected Candidates and, thereafter, issued the order of appointment.
As the appellants had to give up their posts in consequence of the fresh appointments they filed the present writ peti tions impugning the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution and challenging the selection and appointment of respondents Nos. 3 to 191 as Village Ac countants and for a direction that they should be continued as Village Accountants.
The High Court dismissed the writ petitions.
Dismissing the appeals, HELD: 1.
Though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for invoking the exercise of the extraordinary jurisdiction by the High Court under the said Article.
It is well estab lished that a person who 627 is not aggrieved by the discrimination complained of cannot maintain a writ petition.
The constitutional validity of the Abolition Act abolishing all hereditary Village Offices having been upheld by this Court, the appellants who did not apply for appointment as Village Accountants in response to the notification inviting applications, since they did not possess the.
prescribed qualifications, could not complain of the unconstitutionality of the 1972 Rules or of the infringement of Articles 14 and 16 of the Constitution.
The High Court, therefore, was right in holding that the appellants have no right to maintain the writ petitions.
[631 E H 632 A]
|
ivil Appeal No. 283 of 1972.
Appeal by Special Leave from the Judgment and Order dated 12 7 1971 of the Delhi High Court in of 1967.
Income Tax Reference No. 31 of 1967.
Bishamber Lal for the Appellant.
V.S. Desai, J. Ramamurthi and R.N. Sachthey for the Res pondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated July 12, 1971, of the High Court out of these facts: The appellant (hereinafter referred to as the assessee) is an individual.
The assessment year is 1955 56.
Bharat Union Agencies Pvt. Ltd. had spent Rs.53,398/ after the personal necessities of the assessee during the previous year ending 30 9 1964, without charging for the same.
The assessee was not a director Of the said Company.
He however was the beneficial owner of 1800 shares out of the total of 3000 equity shares of the said Company during the previous year.
Similarly, Alien Berry and Co. Pvt. Ltd. had spent a sum of Rs. 4406/ after the personal necessities of the assessee, without charging for the same.
The Income tax Officer treated the total benefit of Rs. 57,804/ received by the assessee from these two Companies, as his `income ' under section 2(6C)(iii) of the Income tax Act, 1922 which was introduced by the Finance Act, 1955 with effect from 1 4 1955, and charged it to tax along with some other items of income.
The assessee carried an appeal to the Appellate Assistant Commissioner who found that the assessee was beneficial owner of the shares of Bharat Union Agencies Pvt.
Ltd. carrying more than 20 per cent of the voting power.
He further held on the basis of certain findings in the Report of the Commission of Inquiry on the administration of Dalmia Jain Companies published in 1963, that the assessee 656 had 100 per cent of the share holding control of Allen Berry and Co. Pvt.
Ltd. The Appellate Assistant Commis sioner did not specifically deal with the question whether the assessee was "concerned in the management" of both these Companies.
In the result he upheld the order of the Income tax Officer.
The assessee preferred a further appeal to the Income tax Appellate Tribunal which held that the assessee was "concerned in the management of the Bharat Union Agencies (P) Ltd., being the beneficial owner of shares carrying more than 20% of the voting power, and as such the benefit of Rs. 53,398/ received by him from that Company was his 'in come ' within the later part of Clause (iii) of section 2(6C) of the Income tax Act, 1922.
On this reasoning the Tribunal dismissed the assessee 's appeal in regard to the item of Rs. 53,398/ .
However, it allowed, on a different ground his appeal with regard to the item of Rs. 4406/ received from Alien Berry and Co. (P) Ltd. In this appeal we are not concerned with that item any more.
At the instance of the assessee, the Tribunal stated the case and referred the following question under section 66(1 ) of the Income tax Act, 1922 to the High Court: "Whether on the facts and in the circum stances of the case, the sum of Rs. 53,398/ spent by Bharat Union Agencies P. Ltd. after the personal necessities of the assessee is income within the meaning of section 2(6C)(iii) of the Income tax Act, 1922".
The High Court answered this question against the asses see.
Hence this appeal.
At the outset, Shri Bishamber Lal, appearing for the appellant, tried to contend that the item of Rs. 53,398/ received by the assessee from Bharat Union Agencies Pvt.
Ltd. was not a "benefit or perquisite" within the contempla tion of section 2(6C)(iii) of the 1922 Act because, firstly, the constituents of this item were not cash amounts but gifts or bounties, and secondly, the receipt of this benefit by the assessee was unauthorised and could not be claimed by him as of right on the basis of any agreement with the Company.
This was altogether a new plea.
It was not even indi rectly raised before the authorities under the Income tax Act or the High Court.
It has not been raised even in the Special Leave Petition under Article 136 of the Constitu tion.
It was never the case of the assessee that this amount of Rs. 53,398/ was not "benefit obtained" by the assessee from the Company within the meaning of section 2(6C) (iii).
On the contrary it is apparent from the judgment of the Tribunal, that there was "no dispute about the fact that the assessee received benefits from both the Companies to the extent stated by the authorities below".
i.e. benefits to the extent of Rs. 53,398/ and Rs. 4406/ were received by the assessee from Bharat Union Agencies P. Ltd. and Allen Berry and Co. Pvt. Ltd. respectively.
The plea now sought to 657 be raised in regard to the item of Rs. 53,398/ involves a question of fact.
We therefore did not permit the Counsel to raise this plea for the first time at the time of argu ments before us.
Counsel next contended that the expression "concerned in the management of the business of the Company" takes in only that person who by virtue of a position or office held by him in the Company, legally and actually participates in the management of its business and not he who holds no such position or office but is in remote control of the Company and its affairs merely on account of being in ownership of a certain number of shares, carrying more than 20 per cent or even the majority of the voting power.
In support of this restricted construction of the term "concerned", Counsel referred to a decision of the Madras High Court in Arya Bhavan, Madras vs
M.S. Narayana Rao(1), wherein Rajamannar C.J. held that the word "concerned" as used in the context of 'workman ' in section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, connotes a more intimate and direct relation to the matter than the word "interest" and there fore this term should be given a more restricted meaning than the word "interest".
Mr. Bishamber Lal also referred to the meaning of the terms "concerned", "concerning" as given in the Dictionary, "Words and Phrases", Permanent Edition pp.
504 505 Vol. 8.
Before dealing with this contention, it will be appro priate to examine the material part of section 2(6C)(iii) of the 1922 Act, which runs as follows: "(iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a sub stantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person afore said.
" From an analysis of Clause (iii), it is clear that it falls in two distinct parts.
The first part is confined to the obtaining of the value of any benefit or perquisite from a Company by a director even if he has no substantial interest in the Company.
The second part applies to a person who may not be a director but has a substantial interest in the Company.
What is "substantiaI interest" is further equated by the succeeding expression, "that is to say", with the coexistence of two elements, namely, (i) concern in the management of the business of the Company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than twenty per cent of the voting power.
There is no dispute before (1) A.I.R. 1960 Mad.
658 us that the assessee had obtained the benefit of Rs. 53,398/ from Bharat Union Agencies Pvt.
Ltd. It is further admitted that he holds 1800 shares out of the total of 3000 equity shares in this Company, carrying a voting power of 60 per cent.
Thus, the existence of the second element is more than satisfied.
Controversy pivots around the first element, only.
The arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expression "concerned in the manage ment" of the business of the Company, were canvassed before the Tribunal, also.
The Tribunal repelled these arguments.
The reasoning of the Tribunal with which the High Court found itself entirely in agreement is as under: "Shri Sharma conceded the position that the assessee was controlling both the Compa nies.
in question.
To exercise control over a Company is something more than to manage the Company.
A person who manages the company may not necessarily be in a position to con trol the business or affairs of the Company.
He may be managing under the instructions of.
those who are controlling the Company.
But a person who controls a Company also directly or indirectly through the managerial staff manages the business of the Company.
It is again not necessary that the person who man ages the business of the Company should be rightfully entitled to do it.
A person who is not rightfully entitled to manage the business of the Company but usurps the power by virtue of his certain position, is, in our opinion, certainly a person covered by this expression.
It is also not necessary. that the management should be carried on in an ostensible manner.
One who carried on the management indirectly and imperceptibly through the persons who outwardly and ostensi bly carry on the management is covered by the expression.
It is not necessary, in our opinion, that the management should be both seen, and felt; it is sufficient if it is felt, without being seen.
" In our opinion, the above is a correct exposition of the law on the point.
The word "concern" is not a term of art, having a precise, fixed meaning.
It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum.
It may mean "to have a relation to, or bearing on, be of interest or, importance" or "to have an anxiety, worry".
"Concerned" as an adjective may mean "interested", "involved".
In one context, it may mean one thing, and in a different context another.
The decisions as to the mean ing of this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned.
The best way therefore to construe this word is with refer ence to the context in which it is used.
In sub clause (iii) of section 2(6C) of the Income tax Act, 1922, the word "concerned" takes its colour from the words "in the manage ment of the business" in association with which it occurs.
In the context of business, "manage" means "to control, to guide, to administer, to conduct or direct affairs; 659 carry on 'business ' (Shorter Oxford Dictionary, Webster New World Dictionary).
"Management" includes the act of manag ing by direction, or regulation, or administration or con trol or superintendence.
Construed with reference to the context, and the circum stances of a case, the expression "person concerned in the management of the business" may take in not only .a person who directly participates or engages in the management of the business but also one who indirectly controls its man agement through the managerial staff, from behind the scenes.
The assessee 's admission that he is in control of the Company necessarily includes an admission of his being "concerned in the management of the business of the Compa ny", We, therefore, agree with the High Court, that the ambit of the term "concerned" in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office holder of the Company.
In the context of "manage ment" it is wide enough to include every person 'interested ' in the management, in the sense of having the direction and control of the managerial staff.
On the facts of the case, the assessee was such a person.
We are therefore, of opinion that the High Court was right in answering the question referred to it, against the assessee.
The appeal fails and is dismissed with costs.
P.B.R. Appeal dismissed.
| IN-Abs | Section 2(6C)(iii) of the Income tax Act, 1922 provides that the value of any benefit or perquisite, whether con vertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being benefi cial owner of shares, not being shares entitled to fixed rate of dividend carrying not less than 20% of the voting power) and any sum paid by any such company in respect of any obligation which, but for such appointment, would have been payable by the director or other person aforesaid is income.
The assessee was the beneficial owner of 1800 out of 3000 equity shares of a company.
He was, however, not its director.
He had a similar interest in another company.
Both the companies had spent on his personal necessities a large sum of money, which the Income tax Officer treated as his income under section 2(6C)(iii) of the Act.
The Appellate Assistant Commissioner, as also the Tribunal, dismissed his appeal against the order of the Income tax Officer and the High Court answered the reference against the assessee.
In appeal to this Court it was contended that the ex pression "concerned" in the management of the business of the company takes in only the person who legally partici pates in the management of its business and not one who has only remote control of its business.
even if he had the majority of voting power.
Dismissing the appeal, HELD: The expression "person concerned in the management of business"may take in not only a person who directly partici pates or engages in the management of the business but also one who indirectly controls its management through the managerial staff from behind the scenes.
[657 B] 1.
(a) The term "concerned" in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office holder of the company.
In the context of "manage ment" it is wide enough to include every person "interest ed" in the management, in the sense of having the direction and control of the managerial staff.
[659 C D] (b) The word "concerned" is not a term of art, having a precise and fixed meaning.
It has several nuances, and is used to convey diverse shades of meaning.
It may mean "to have a relation to.
or bearing on, be of interest 0r importance" or "to have an anxiety, worry".
"Concerned" as an adjective may mean "interested", "involved".
In one context, it may mean one thing and in a different context another.
[658 G H] (c) The word "concerned" takes its colour from the words "in the management of the business" in association with which it occurs.
In the context of business, "manage" means "to control.
to guide.
to administer to conduct or direct affairs ', carry on 'business. "Management" includes the act of managing by direction or regulation or adminis tration or control or superintendence.
[658 H, 659 A] 655 (2) The first part of the clause is confined to the ob taining of the value of any benefit or perquisite from a company by a director, even if he has no substantial inter est in the company.
The second part applies to 2a person who may not be a director but has a substantial interest in the company.
What is "substantial interest" is further equated by the succeeding expression "that is to say" with the co existence of two elements, namely, (i) concern in the management of the business of the company and (ii) benefi cial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than 20% of the voting power.
[657 G H] In the instant case, the assessee, Obtained the benefit from the company holding 1800 out of 3000 shares, that is, carry ing a voting power of 60% and, therefore, satisfied the second element.
His own admission that he was in control of the company necessarily includes an admission of his being "concerned in the management of the business of the company".
[658 A B]
|
vil Appeal Nos.
1840 1842/72.
Appeals from the Judgment and Orders dated the 15th April, 1971 of the Delhi High Court in Civil Writ Petitions Nos. 54, 1183 and 1184/69.
Mrs. Shyamla Pappu, R.N. Sachthey and Girish Chandra for the appellant in C.A. 1840/71.
R.N. Sachthey and Girish Chandra for the Appellants in CAs.
1841 42/71.
H.K. Puri for the Respondents.
The Judgment of the Court was delivered by KHANNA, J.
This Judgment would dispose 0 civil appeals Nos. 1840, 1841 and 1842 of 1971 which have been filed on certificate by the Company Law Board against the common judgment of Delhi High Court in three writ petitions by the respondent company and its two managing directors to challenge order dated September 27, 1967.
The respondent company, Upper Doab Sugar Mills Ltd., is a public limited company governed by the provisions of the (hereinafter referred to as the Act).
The company has its registered office at Shamli, district Muzaffarnagar (Uttar Pradesh).
Its main business is manu facture of sugar from sugar cane.
It also manufactures spirits, industrial alcohols and rum from molasses.
From 1951 onwards the respondent company was managed by a firm of managing agents.
Two of the partners of that firm were Shri Rajinder Lal and Shri Nannder Lal.
The managing agency agreement of that firm was to expire on January 14, 1967.
On October 4.
1966 the Board of Directors of the company resolved not to continue the managing agency of the said firm and decided to appoint two managing directors to con duct and manage the affairs of the company.
Accordingly, on October 8, 1966 in exercise of the powers under article 117 of the articles of association of the company the Board of Directors resolved to appoint Shri Rajinder Lal and Shri Narinder Lal as the two managing directors of the company.
The salary of each of the managing directors was fixed at Rs. 5,000 per month.
In addition to that, each managing director was to get commission at the rate of 31/2 per cent of the net profits of the company during a financial year computed in the manner .laid down in section 309(5) of the Act.
Besides that, other service benefits such as gratuity, provident fund, free medical treatment, transportation and free furnished residential accommodation were to be pro vided to each of the managing directors.
The resolution of the Board of Directors was placed before the shareholders of the company in a general meeting.
The shareholders approved the said resolution to appoint Shri Rajinder Lal and Shri Narinder Lal as managing directors on the terms set out in that resolution.
An application was thereafter made under section 269 of the Act to Company Law Board, appellant, for obtaining approval to the appointment of Shri Rajinder Lal and Shri Narinder Lal as managing directors.
The powers of the Central Government, it may be stated, have been delegated to the appellant Board for exercising, inter alia, powers under section 269 of 505 the Act.
The appellant Board after obtaining some addition al information and after some further correspondence granted as per letter dated September 28, 1967 approval to the appointment of Shri Rajinder Lal and Shri Natruder Lal as managing directors of the company.
The said approval was granted subject to the various terms and included the fol lowing condition: "The total remuneration of each managing director by way of commission and salary shall not exceed Rs. 1,20,000 (Rupees one lakh twenty thousand) per annum.
" The company made a representation to the appellant Board that the aforesaid ceiling of Rs. 1,20,000 would not ade quately remunerate the two managing directors and that the aforesaid ceiling be raised.
The Board rejected that repre sentation.
Three writ petitions were thereafter filed in January 1969 by the company and Shri Rajinder Lal and Shri Narinder Lal for restraining the appellant Board from giving effect to the condition set out above that the total remu neration of each managing director should not exceed Rs. 1,20,000 per annum.
Prayer was made that the appellant Board be directed to accord approval for payment to the managing directors the remuneration as passed in the resolu tion of the Board of Directors along with the necessary perquisites.
The petition was registered by the appellant Board and the affidavit of the Secretary of the Board was filed in opposition.
At the hearing in the High Court the following two questions were agitated on behalf of the respondent company and its managing directors: "(1) Whether the administrative ceiling imposed by the Board on 28 9 1967 on the remuneration payable to the Managing Directors by the Company is ultra vires or illegal? (2 ) Whether the refusal by the Board to enhance the remuneration of the Managing Directors above the ceiling of Rs. 50,000/ for the loss year was bad because the Company was not granted adequate heating and because the order of refusal did not state the reasons therefor ?" The High Court answered the second question against the respondent company.
This question also no longer survives m these appeals.
On the first question, the High Court after referring to the various provisions held that the action of the Board in reducing the remuneration of the managing directors was arbitrary and void.
In this connection, the High Court observed: "But any condition regarding remunera tion which is contrary to the provisions of sections 198 and 309 would not be regarded as germane to section 269 inasmuch as the Legis lature has exhaustively dealt with remunera tion in sections 198 and 309 with the effect that section 269 does not include in its scope any element regarding the fixation of remuner ation.
" Referring to the general administrative policy of the Gov ernment of fixing ceiling on managerial remuneration, the High Court observed 506 that any such policy which resulted in placing a ceiling below the legislative ceilings fixed by sections 198 and 309 was illegal as being contrary to sections 198 and 309.
In the result, the High Court quashed the condition imposed by the Board fixing the remuneration of the managing direc tors.
In appeal before us Mrs. Shymala Pappu has assailed the correctness of the judgment of the High Court.
As against that, Mr. Puri on behalf of the respondents has canvassed for the correctness of that judgment.
In order to appreciate the respective arguments, it may be necessary to set out the necessary provisions of the Act, as they stood at the relevant time.
Sub sections (1), (2) and (3) of section 198 read as under: "198.
Overall maximum managerial remu neration and managerial remuneration in case of absence or adequacy of profits. (1) The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company, to its direc tors and its managing agents, secretaries and treasurers or manager in respect of any finan cial year shall not exceed eleven per cent of the net profits of that company for that financial year computed in the manner .laid down in sections 349, 350 and 351, except that the remuneration of the directors shall not be deducted from the gross profits: Provided that nothing in this section shall affect the operation of sections 352 to 354 and 356 to 360.
(2) The percentage aforesaid shall be exclusive of any fees payable to directors under sub section (2) of section 309.
(3) Within the limits of the maximum remuneration specified in sub section (1) a company may pay a monthly remuneration to its managing or whole time director in accordance with the provisions of section 309 or to its manager in accordance with the provisions of section 387.
" Section 269 reads as under: "269.
Appointment or re appointment of managing or whole time director to require Government approval in certain cases. ( 1 ) In the case of a public company or a private company which is a subsidiary of a public company, whether such public company or pri vate company is an existing company or not, the appointment of a person for the first time as a managing or whole time director shall not have any unless approved by the Central Gov ernment: Provided that in the case of a public company, or a private company which is a subsidiary of a public company, incorporated after the commencement of the Companies (Amendment) Act, 1960, the appointment of a person as a managing 507 or whole time director for the first time after such incorporation may be made without the approval of the Central Government but such appointment shall cease to have effect after the expiry of three months from the date of such incorporation unless the appointment has been approved by that Government.
(2) Where a public company or a private company which is a subsidiary of a public company, is an existing company, the re ap pointment of a person as a managing or whole time director for the first time after the commencement of the Companies (Amendment) Act, 1960, shall not have any effect unless approved by the Central Government.
" Sub sections (1), (2) and (3) of section 309 read as under: "309.
Remuneration of directors. ( 1 ) The remuneration payable to the directors of a company, including any managing or whole time director, shall be determined, in accordance with and subject to the provisions of section 198 and this section, either by the articles of the company, or by a resolution or, if the articles so require, by a special resolu tion, passed by the company in general meeting and the remuneration payable to any such director determined as aforesaid shall be inclusive of the remuneration payable to such director for services rendered by him in any other capacity: Provided that any remuneration for services rendered by any such director in any other capacity shall not be so included if (a) the services rendered are of a profession al nature: and (b) in the opinion of the Central Govern ment, the director possesses the requisite qualifications for the practice of the profes sion.
(2) A director may receive remuneration by way of a fee for each meeting of the Board, or a committee thereof.
attended by him: Provided that where immediately before the commencement the Companies (Amendment) Act, 1960, fees for meetings of the Board and any committee thereof, attended by a director are paid on a monthly basis, such fees may contin ue to he paid on that basis for a period of two years after such commencement or for the remainder of the term of office of such direc tor, whichever is less, but no longer.
(3) A director who is either in the whole time employment of the company or a managing director may he paid remuneration either by way of a monthly payment or at a 508 specified percentage of the net profits of the company or partly by one way and partly by the other: Provided that except with the approval of the Central Government such remuneration shall not exceed five per cent of the net profits for one such director, and if there is more than one such director, ten per cent for all of them together.
" Sub section (1 ) of sect,ion 637A reads as under: "637A. Power of Central Government to accord approval, etc., subject to conditions and to prescribe fees oft applications. ( 1 ) Where the Central Government is required or authorised by any provision of this Act, (a) to accord approval, sanction, consent, confirmation or recognition to or in relation to, any matter; (b) to give any direction in relation to any matter; or (c) to grant any exemption in relation to any matter; then, in the absence of anything to the con trary contained in such or any other provision of this Act, the Central Government may ac cord, give or grant such approval, sanction, consent, confirmation, recognition, direction or exemption subject to such conditions, limitations,ions or restrictions as it may think fit to impose and may, in the case of contravention of any such condition, limita tion or restriction, rescind or withdraw such approval, sanction, consent, confirmation, recognition, direction or exemption.
" After hearing learned counsel for the parties and giving the matter our earnest consideration, we are of the opinion that the view taken by the High Court in quashing the condi tion imposed by the appellant Board about the fixation of the remuneration of the managing directors cannot be sus tained.
The High Court in arriving at its conclusion took: the view that section 198 and the proviso to sub section (3) of Section 309 specially dealt with the question which arose for determination.
In view of those provisions, the High Court inferred that sections 269 and 637A upon which reliance had been placed by the appellant Board could not be of much avail to the appellant.
Mr. Puri on behalf of the respondents has adopted the same reasoning in this Court and has contended that sect,ion 198 and the proviso to sub sect,ion (3) of section 309 being special provisions relat ing to the remuneration of managing directors, they would exclude so far as that question is concerned, general provisions like those contained in sections 269 and 637A. The above reasoning, we find, is vitiated by an innate fallacy.
Section 198 deals with the overall maximum manage rial remuneration and managerial remuneration in the case of absence or adequacy of profits.
The total managerial remu neration payable by a public company or a private company which is a subsidiary of a public company to its managerial staff, according to sub section (1) of that section, cannot exceed 11 per cent of the net profits for a financial year.
The total managerial remuneration covers the remuneration not merely of the managing 509 directors but also of other managerial personnel like secre taries, treasurers and managers.
Sub section (3) of the section provides that Within the limits of the maximum remuneration, a company may pay a monthly remuneration to its managing director in accordance with section 309.
Sub section (1) of section 309 prescribes the formalities which have to be complied with for fixing of the remuneration of a managing or full time director of a company.
We are not concerned with sub section (2) of that section.
Sub section (3).
which constitutes the main plank of the case of the respondents, provides that a director who is either in the whole time employment of the company or a managing direc tor may be paid remuneration either by way of monthly pay ment or at a specified percentage of the net profits of the company or partly by one way or partly by the other.
Ac cording to the proviso to that sub section, except with the approval of the Central Government, such remuneration of the whole time director or managing director shall not exceed 5 per cent of the net profits for one such director and if there is more than one such director 10 per cent for all of them together.
Perusal of section 309 shows that it does not deal with the appointment of managing directors.
It only pertains to the remuneration of managing or whole time directors who have already been appointed.
The effect of the proviso to sub section (3) of section 309 is that if the tenure of a managing director who has already been appointed continues after the coming into force of the Act, the remu neration to be paid to such a managing director shall not after the coming into force of the Act exceed 5 per cent of the net profits for one such director, and if there be more then one such director, 10 per cent for all of them together.
The present, however, is not a case of managing direc tors having been appointed earlier and continuing to act as such after the coming into force of the Act.
Shri Rajinder Lal and Shri Narinder Lal have been appointed managing directors of the company for the first time after the coming into force of the Act.
Their appointment as managing directors had to be approved in terms of section 269 of the Act.
The company consequently applied to the Central Gov ernment for approving their appointment.
The appellant Board, to whom the powers of the Central Government have been delegated for this purpose, while granting approval to the appointment of the aforesaid two persons as managing directors, inserted the condition that the total remunera tion of each managing director by way of commission and salary shall not exceed rupees.
one lakh twenty thousand per annum.
The above remuneration is in addition to the benefit of certain perquisites which would be available to the managing directors.
The Board, in our opinion, acted well within its power in imposing this condition.
Section 637A of the Act makes it clear inter alia that where the Central Government is required or authorised by any provision of the Act to accord approval in relation to any matter, then, in the absence of anything to contrary contained in such or any other provision of the Act, the Central Government may accord such approval subject to such conditions, limitations or restrictions as it may think fit to impose.
In view of the provisions of sections 269 and 637A of the Act, we find no infirmity in the condition imposed by 510 appellant Board.
The provisions of both sections 269 and 637A expressly deal with the question which arises directly in this ease.
We may observe that according to the affidavit filed on behalf of the appellant Board, since 1959 the said Board has been imposing a maximum administrative ceiling on the total amounts payable to a managing director.
The basic principle that has been kept in view by the Board is that no individ ual should be paid remuneration exceeding Rs. 1,20,000 per annum or Rs. 10,000 per month.
A large number of instances have also been given by the Board and it would appear there from that the maximum remuneration which has been allowed by the Board to the managing director of any company is Rs. 1,20,000.
The High Court, in our opinion, was in error in quashing the order of the Board.
We accordingly accept the appeals, set aside the judgment of the High Court and dismiss the writ petitions.
Looking to all the facts, we leave the parties to bear their own costs throughout.
P.B.R. Appeals allowed.
| IN-Abs | Section 198(1) of the provides that the total managerial remuneration payable by a public compa ny to its directors in respect of a financial year shall not exceed eleven per cent of the net profits of that company for that financial year.
Sub section (3) prescribes that within 'the limits of the maximum remuneration specified in sub section
(1) a company may pay a remuneration to its managing or whole time director in accordance with the provisions of section 309.
Section 309(3) provides that a director who is either in the whole time employment of the company or a managing director may be paid remuneration either by way of monthly payment or at a specified percentage of the net profits of the company or partly by one way or partly by the other.
The proviso provides that except with the approval of the Central Government such remuneration shall not exceed five per cent of the net profits for one such director and if there is more than one such director ten per cent for all of them together.
Section 637A provides that where the Central Government is required or authorised by any provi sion of the Act to accord approval in relation to any matter the Central Government may accord such approval subject to such conditions, limitations, restrictions as it may think fit to impose.
In 1966 the respondent company appointed two managing directors and sought the approval of the Central Government under section 269 of the for their appoint ment.
Granting its approval the Company Law Board fixed a ceiling on the total remuneration payable to each managing director by way of commission and salary.
The Company 's representation to the Board to raise the ceiling of remuner ation was rejected.
In a petition under art, 226 of the Constitution the High Court held that the action of the Board in reducing the remuneration was arbitrary and void and that any condition regarding the remuneration which is contrary to the provi sions of sections 198 and 309 would not be germane to section 269 and that section does not include in its scope any element regarding the fixation of remuneration.
Allowing the appeals of the Board.
HELD: The High Court was in error in quashing the order of the Board.
In view of the provisions of sections 269 and 637A there is no infirmity in the condition imposed by the Board.
[510C; 509H] Section 309 does not deal with the appointment of manag ing directors but pertains to the remuneration of managing or .whole time directors who had already been appointed.
The effect of the proviso to section 309(3) is that if the tenure of a managing director already appointed continued after the coming into force of the Act, the remuneration to be raid to such managing director shall not, after the coming into force of the Act, exceed 5% of the net profits to be paid for one such director and if there be more than one such director 10% for all of them together.
[509D] In the instant case since the managing director had been appointed for the first time after the coming into force of the Act their .appointment had to be approved in terms of section 269.
The Board, while granting permission, inserted a condition regarding the total remuneration of each managing director.
In so doing the Board acted well within the power.
[509F G] 16 1546 SCI/76 504
|
21, 22 and 44 of 1951.
(1) ; (3) ; (2) ; , (4) 453 Applications under article 32 of the Constitution praying for the issue of writs in the nature of habeas corpus.
Hardayal Hardy for the petitioners in Petitions Nos. 21 and 22 Gopal Singh for the petitioner in Petition No. 44.
S.M. Sikri for the respondents.
April 6.
The following judgments were deliv ered.
PATANJALI SASTRI J. These three petitions have been pre sented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas corpus for release of the petitioners who are respectively the President, VicePresident and Secretary of the Hindu Mahasabha of the Delhi State.
The petitioners were arrested on 22nd August, 1950, by order of the District Magistrate, Delhi, made under sub section (2) read with clause (a) sub clause (i) of sub section (1) of section 3 of the (hereinafter referred to as the Act).
The order ran as follows: "Whereas I, Rameshwar Dayal, District Magistrate, Delhi, am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so, I, Rameshwar Dayal, District Magistrate, Delhi, hereby order the detention of . . under sub section (2) of section 3 (1) (a) (ii) of the .
Given under my seal and signature".
The grounds of detention communicated to the petitioners were in identical terms, save as to the dates on which the speeches were said to have been made, and read thus: "In pursuance of section 7 of the you are hereby informed that the grounds on which the detention order dated 22nd August, 1950, has been made against you are that your speeches generally in the past and particularly on .
August, 454 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby preju dice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is neces sary to make the said order".
The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitution, but the petitions were dismissed.
It appears to have been con tended before the learned Judges (Khosla and Falshaw JJ.) who heard those petitions that although this Court held in A.K. Gopalan vs The State of Madras (1) that the provisions of section 3 of the Act were constitutional and valid, detention under that section was ultra vires and illegal where, as here, it was based on the ground of making speech es prejudicial to the security of the State or the mainte nance of public order.
This was said to be the result of the later pronouncements of this Court in Brij Bhushan and Another vs The State of Delhi (2) and Romesh Thappar vs The State of Madras (3).
This contention was rejected on the ground that no such proviso could be read into section 3 on the strength of the later decisions referred to above which related to a different point, viz., the scope of authorised restrictions on the right to freedom of speech conferred by article 19 (1).
Falshaw J. (with whom Khosla J. concurred), proceeded, however, to draw attention to what he conceived to be an ' 'anomaly ' ' while a State Government should not be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by pre censor ship of news, the Government should, for the same object, be entitled to place a person under preventive detention which is "even greater restriction on personal liberty than any restriction on a newspaper ever could be".
This distinction appeared to the learned Judge to be illogical, and he thought that there was "an apparent conflict" between the decisions of this Court in Gopalan 's case (1) and the other cases, which could only be resolved by this Court.
"It (1) ; (3) ; , (2) ; 455 would be well" the learned Judge concluded "if the point were raised in this form at an early date in the Supreme Court".
No wonder that, after this encouragement, the peti tioners have preferred these petitions raising the same contention before us.
On behalf of the petitioners Mr. Hardy submitted that the provisions of the Act should not be used to prevent a citizen from making speeches though they might be considered to be prejudicial to the maintenance of public order, for maintenance of public order is not a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution, as held by this Court in the Cross roads(1) and the Organizer(2) cases.
It is true that in those cases this Court decided by a majority of 5 to 1 that "unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause (2) of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order".
But it will be noticed that the Statutory provi sions which were there declared void and unconstitutional authorised the imposition, in the one case, of a ban on the circulation of a newspaper and, in the other, of pre censor ship on the publication of a journal.
No question arose of depriving any person of his personal liberty by detaining him in custody, whereas here, as in Gopalan 's case(s), the Court is called upon to adjudge the legality of the deten tion of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in article 19 (1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which (1) ; (3) ; (2) ; 59 456 alone they could be taken away or abridged.
The interpreta tion of these articles and their correlation were elaborate ly dealt with by the full Court in Gopalan 's case(1).
The question arose whether section 3 of the Act was a law impos ing restrictions on "the right to move freely throughout the territory of India" guaranteed under article 19 (1) (d) and, as such, was liable to be tested with reference to its reasonableness under clause (5) of that article.
It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was con stitutional.
If the learned Judges in the High Court had paid close attention to the judgments delivered in this Court, they would have found that there was nothing illogi cal in that view and no conflict between the decisions in that case and in the other cases to which reference has been made.
The observations of the Chief Justice in Gopalan 's case(1) make the position quite clear: " As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e), and (g)have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g).
Although this argument is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also, to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2) to (6), permit ting abridgement of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even (1) ; 457 ordinary assault, will be illegal.
Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, such result is clearly not the outcome of the Constitution.
The article has to be read without any preconceived notions.
So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive deten tion, his right under any of these sub clauses is abridged, the question of the application of article 19 does not arise.
The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's life.
On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 (1) generally must fail.
Any other construction put on the article, it seems to me, will be unreasonable.
"(1) Similar conclusions expressed by the other learned Judges will be found at pages 194, 229, 256 and 305.
It follows that the petitions now before us are governed by the decision in Gopalan 's case(1), notwithstanding that the petitioners ' right under article 19 (1)(a) is abridged as a result of their detention under the Act.
The anomaly, if anomaly there be in the resulting position, is inherent in the structure and language of the relevant articles, whose meaning and effect as expounded by this Court by an over whelming majority in the cases referred to above must now be taken to be settled law, and courts in this country will be serving no useful purpose by discovering supposed conflicts and illogicalities and recommending parties to re agitate the points thus settled.
(1) ; , 100 101.
458 Mr. Hardy next contended that, in view of the recent decision of this Court in The State of Bombay vs Atma Ram Sridhar Vaidya(1), the grounds of detention communicated to each of the petitioners must be held to be too vague and indefinite to enable them to make their "representations" to the Chief Commissioner, Delhi, and the requirements of clause (5)of article 22 not having thus been complied with, the petitioners were entitled to be set at liberty.
Accord ing to Mr. Hardy it was not sufficient that the time and place of the alleged speeches and their general effect were indicated, but it was also necessary that the offending passages or at least the gist of them should be communicated in order to enable the petitioners to make effective repre sentations.
In the case relied on, this Court, no doubt, held by a majority that, though the first part of article 22 (s), which casts an obligation on the detaining authority to communicate the grounds of the order of detention would be sufficiently complied with if the" deductions or conclusions of facts from facts" on which the order was based were disclosed, the latter part of the clause, which confers on the person detained the right of making a "representation" against the order, imposed, by necessary implication, a duty on the authority to furnish the person with further particu lars to enable him to make his representation.
It was further held that the sufficiency of this "second communica tion" of particulars was a justiciable issue, the test being whether "it is sufficient to enable the detained person to make a representation which, on being considered, may give relief to the detained person.
" While the communication of particulars should, subject to a claim of privilege under clause (6), be" as full and adequate as the circumstances permit", it did not, however, follow from clause (6) that "what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed there is a breach of a fundamental right.
A wide latitude is left to the authorities in the matter of disclosure." Referring to the use of the term (1) ; 459 "vague" in this connection,.
it was remarked: "If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague" This decision does not, in our opinion, support the broad proposition contended for by Mr. Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained, the detaining authority should communicate to the person the offending passages or at least the gist of such passages on pain of having the order quashed if it did not.
In the cases now before us the time and place at which the speeches were alleged to have been made were specified and their general nature and effect (being such as to excite disaffection between Hindus and Muslims) was also stated.
It is difficult to see how the communication of particular passages or their substance one of the petitioners denied having made any speech on the day specified was necessary in addition to the particulars already given, to enable the petitioners to make their representations.
It should be remembered in this connection that the Court is not called upon in this class of cases to judge whether or not the speech or speeches in question constituted a prejudicial act falling within the purview of section 3 of the Act as it is called upon in prosecutions for offences under section 124A or section 153A of the Indian Penal Code to find whether the speech attributed to the accused person constituted an offence under those sec tions.
That is a matter for the detaining authority to be satisfied about.
Nor do these cases belong to the category where a reference had to be made to the Advisory Board under the Act, so that any attempt by the petitioners to rebut the inference drawn by the detaining authority from their speeches had to be made only before the executive authori ties.
In such circumstances the suggestion that without the communication of the offending passages or their substance the petitioners were not in a position to make their repre sentations 460 to the executive authorities sounds unreal and is devoid of substance.
It may be possible to conceive of peculiar situations where perhaps the person detained on ground of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the gist of them, but the present cases are not of such peculiar character.
On the other hand, cases have come before this Court where speeches were alleged to have been made after midnight at secret gatherings of kisans and workers inciting them to violence, crime and disorder.
Such allegations could only be based in most cases on information received by the executive authorities from confidential sources and it would not be practicable in all such cases to have a record made of the speeches delivered.
To hold that article 22 (5) requires that, wherever detention is grounded on alleged prejudicial speeches, the detaining authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provisions were doubtless primarily intended to be used and where their use would be most legitimate.
In the case of these petitioners, no doubt, the speeches are said to have been made at public meetings, and it is not suggest ed on behalf of the respondents that no record was made of the speeches, so that the details asked for could have been furnished.
The omission to do so, for which no reason is disclosed in these proceedings, is regrettable, as it has given rise to avoidable grievance and complaint.
The au thorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above: "In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order.
Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number 461 of words in the communication conveying the grounds of detention.
In our opinion, this attitude is quite deplora ble".
This, however, does not affect our conclusion in these cases that the grounds communicated to the petitioners contain sufficient particulars to enable them to make their representations to the authority concerned, and that the requirements of article 22 (5) have thus been complied with.
It is also urged that the orders of detention were bad because they did not specify the period during which the petitioners were to be under detention.
This point is now concluded against the petitioners by the decision of this Court in Ujager Singh vs The State of Punjab (1) and Jagjit Singh vs The State of Punjab (2) where it was pointed out that as section 12 of the Act itself prescribed a maximum period of one year for detention thereunder, such orders could not be said to be of indefinite duration and unlawful on that ground.
Lastly, it was said that the petitioners were prominent members of a political organisation which was opposed to the ideals and policies of the party in power, and that the orders of detention were made "for the collateral purpose of stifling effective political opposition and legitimate criticism of the policies pursued by the Congress Party and had nothing to do with the maintenance of public order".
Allegations of mala fide conduct are easy to make but not always as easy to prove.
The District Magistrate has, in his affidavit filed in these proceedings, stated that, from the materials placed before him by persons experienced in investigating matters of this kind, he was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in a manner prejudicial to the maintenance of public order, and he has emphatically repudi ated the purpose and motive imputed to him.
We have thus allegations on the one side and denial on the other, and the petitioners made no attempt to discharge the burden, which undoubtedly lay upon them, to prove that the District (1) Petition No. 149 of 1950.
(2) Petition No. 167 of 1950.
462 Magistrate acted mala fide in issuing the orders of deten tion.
The petitions are dismissed.
MAHAJAN J.
These three petitions under article 82 of the Constitution of India were presented by Prof. Ram Singh, Bal Raj Khanna and Ram Nath Kalia, all three of whom were arrested and placed in detention on the 22nd August, 1950, under the orders of the District Magistrate of Delhi, under the .
The petitioners are respectively, the President, Vice President and the Secre tary of the Delhi State Hindu Mahasabha.
The grounds of detention supplied to them are almost identical.
Those furnished to Prof. Ram Singh read as follows : "In pursuance of section 7 of the , you are hereby informed that the grounds on which the detention order dated August 22, 1950, has been made against you are that your speeches generally in the past and partic ularly on the 13th and 15th August, 1950, at public meetings in Delhi have been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.
You are further informed that you are entitled to make a representation against your detention to the State Govern ment, that is, the Chief Commissioner, Delhi.
" The grounds supplied to the other two petitioners were the same except that in the case of Bal Raj Khanna only the 15th August, 1950, is mentioned as the date on which the public speech was made, and in the case of the third petitioner, it is only the 13 th August, 1950.
Mr. Hardy on behalf of the petitioners.
inter alia urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are not suffi cient to enable them to make an effective representation to the State Government against 463 their detention and that being so, their detention is ille gal.
An affidavit of the District Magistrate was placed before us at the hearing of the cases stating that he was satisfied that the petitioners ' speeches generally, and particularly those made on the 13th and 15th August, 1950, at public meetings in Delhi had been such as to excite disaffection between Hindus and Muslims.
No particulars of the offending words or passages or any indication of the nature of the language employed by the petitioners was mentioned either in the grounds or in this affidavit.
Reference was made to two speeches of the 13th and 15th in the case of the first petitioner and to only one speech delivered on the 13th and 15th respectively by the other two.
So far as the earlier speeches are concerned, it is not even stated on what occasions, on what dates and during what years were those speeches made or delivered.
After a refer ence to the dates of the two speeches, the conclusion drawn by the District Magistrate has been mentioned.
The question for decision is whether what is stated in the grounds is sufficient material on the basis of which the fundamental right conferred on the petitioners by article 22 (5) of the Constitution can be adequately exercised and whether without knowing the substance of the offending passages in the speeches from which the inference has been drawn by the District Magistrate it is possible to prove that this infer ence is not justified.
After considerable thought I have reached the decision that these cases fall within the ambit of the decision of this Court in The State of Bombay vs Atma Ram Shridhar Vaidya (1).
In that case certain general principles ap plicable to cases of this nature were stated by the learned Chief Justice, who delivered the majority judgment, in the following terms: (1) That if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must (1) ; 60 464 be sufficient to attain that object.
Without getting infor mation sufficient to make a representation against the order of detention it is not possible for the man to make the representation.
Indeed, the right will be only illusory but not a real right at all.
(2) That while there is a connection between the obliga tion on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different.
For the first, the test is whether it is sufficient to satisfy the authority.
For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earli est opportunity.
On an infringement of either of these two rights the detained person has a right to approach the court and to complain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 22(5) is established he is bound to be released by the court.
(3) That it cannot be disputed that the representation mentioned in the second part of article 22(5) must be one which on being considered may give relief to the detaining person.
It was pointed out that in the numerous cases that had been brought to the notice of the court it was found that there had been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order, and that instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication conveying the grounds of detention and that such an attitude was quite deplorable.
In my opinion, these observations have an apposite application to the grounds furnished to the petitioners in the present cases.
The speeches alleged to have been made by the petitioners were made in public meetings and could not be described as of a confidential nature and no privi lege in respect of them was 465 claimed under article 22 (6) of the Constitution.
That being so, the material on the basis of which the District Magistrate drew the inference that these speeches would cause or were likely to cause disaffection amongst Hindus and Muslims should have been communicated to the petitioners so that they may be able to make a representation, which on being considered may give relief to them.
For that purpose either the words used by them or the substance of the speeches should have been communicated to the detenus so that they may be able to prove that such words or passages never formed part of the speeches and have been introduced in them as a result of some error or that no reasonable person could draw an inference from them that those were likely to cause hatred and enmity between the two communi ties.
The sufficiency of the material supplied is a justi ciable issue, though the sufficiency of the grounds on which the detaining authority made up his mind is not a justicia ble issue.
In my opinion, in the absence of any indication in the grounds as to the nature of the words used by the detenus in their speeches from which an inference has been drawn against them they would not be able fully to exercise their fundamental right of making a representation and would not be able to furnish a proper defence to the charge made against them.
Envisaging oneself in the position of a person asked to draw out a written representation on behalf of the detenus on the materials supplied to them, the effort could not proceed beyond a bare denial of the speeches having been made, or a bald statement that no words were used which could possibly excite disaffection between Hindus and Mus lims.
Such a representation would be an idle formality inasmuch as mere denials without any cogent arguments to support them would convince nobody.
Without a knowledge of the offending words or passages, or their substance, it is not possible to argue that the inference drawn is not a legitimate one or to allege that the words used fall within the ambit of legitimate criticism permissible in law and cannot be considered to excite disaffection 466 amongst Hindus and Muslims.
The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code.
Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been considered and discussed.
In the words objected to were known, the representation on behalf of the detenus could easily have been drawn up with the help of judicial precedents and reasoning considered good in those cases.
Again, without knowing the substance of the offending words from which the inference has been drawn by the detaining authority it is not even possible to urge that these words were merely a quotation from some known author or that the words used fall within legitimate religious propaganda permitted by article 25 of the Constitution or concern the propagation of some political creed to which no objection could be taken.
As regards the two speeches alleged to have been given by the detenus, if the allegation that they were such as to excite disaffection between Hindus and Muslims is correct, the detenus were guilty of the offence under section 153A of the Indian Penal Code and could not only have been punished for the offence under that section but could also have been kept out of harm 's way for the future by that procedure.
A charge sheet under that section or in a trial under section 124A which uses analo gous language would have been defective if it did not men tion the substance of the speeches alleged to have been made by the person charged.
[Vide Chint Ram vs Emperor (1); Chidambaram Pillai vs Emperor(2); Mylapore Krishnaswami vs Emperor(3).] In some of these cases the charge was in substance similar to the charge here.
If a charge in an open trial for an offence under these sections is defective without the substance of the words used or the passages being cited therein, a fortiori, the material supplied in a preventive (1) A.I.R. 1931 Lah. 186.
(3) I.L.R. (2) I.L.R. 467 detention case on a similar charge should be regarded as insufficient when a man has not even a right of being heard in person and has merely to defend himself by means of a written representation.
It has to be remembered in this connection that the phrase "excite disaffection amongst Hindus and Muslims" is of a very general nature and an inference of this kind may easily have been drawn on materi al which would not warrant such an inference.
No reason whatsoever has been stated in the affidavit of the District Magistrate for not disclosing the words used by the detenus even after 'this length of time and from which he drew the conclusions on the basis of which he has kept the petition ers under detention for a period well over six months or more.
For the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal.
I accordingly order the release of the petition ers.
On the other points argued in the case I agree with judgment of Sastri J. BOSE J.
I agree with my brother Mahajan whose judgment I have had the advantage of reading, and with the utmost respect find myself unable to accept the majority view.
I am of opinion that these petitioners should all be released on the ground that their detentions are illegal.
I do not doubt the right of Parliament and of the execu tive to place restrictions upon a man 's freedom.
I fully agree that the fundamental rights conferred by the Constitu tion are not absolute.
They are limited.
In some cases the limitations are imposed by the Constitution itself.
In others, Parliament has been given the power to impose fur ther restrictions and in doing so to confer authority on the executive to carry its purpose into effect.
But in every case it is the rights which are fundamental, not the limita tions; and 'it is the duty of this Court and of all courts in the land to guard and defend these rights jealously.
It is our duty and privilege to see that rights which were 468 intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament.
We are here to preserve intact for the peo ples of India the freedoms which have now been guaranteed to them and which they have learned through the years to cher ish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action.
It is the right to personal freedom which is affected here: what the Constitution calls the "right to move freely throughout the territory of India.
" Now I do not for a moment deny the right of Parliament to place limitations upon that right and to do it by preventive detention.
Much as all freedom loving persons abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely, the regrettable necessity to do so is to my mind undoubted.
The safety of the State, which is para mount, requires it and, in any event, the Constitution allows it but and this is important subject to limita tions.
So far as the Constitution is concerned, it has given Parliament the power to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and item a in List III, and I have no doubt that the legislation sought to be impugned here is intra vires.
But I am unable to hold that the executive action taken in these cases on the strength of that legislation is within the law.
The executive has no power to detain except within the four corners of the Constitution and the Act now challenged.
In my, opinion, it has not kept itself within those limits.
The provisions of the Constitution relevant to the present purpose have been examined by this Court in previous cases and I have neither the right nor the desire to go behind them.
My brother Mahajan has 469 set out his view of the law which these cases have settled.
I respectfully agree with him and will not cover the same ground.
But I do wish to say this.
I am not prepared to place any narrow or stilted construction either upon the Constitution or upon the decisions of this Court which have so far interpreted it.
If it were permissible to go behind file Constitution and enquire into the reason for the provi sions dealing with the fundamental rights, one would find them bound up with the history of the fight for personal freedom in this land.
But that is not permissible and is irrelevant.
What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is "cribbed, cabined and confined".
I conceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights.
I do not mean to say that any impossible or extravagant construction should be employed such as would make the position of Government impossible or intolerable.
But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words convey, namely to confer the fullest possible degree of personal liberty upon the subject consistent with the safety and welfare of the State.
My Lord the Chief Justice has pointed out in The State of Bombay vs Atma Ram Shridhar Vaidya (1) that the information supplied to the detenu must be sufficient to enable him to meet the charges contained in the grounds given to him.
and that without that the right would be illusory.
Are the present cases covered by that rule ? I do not think they are.
Put at their highest, the grounds set out the date and place of the meetings at which the speeches complained of are said to have been made and they do no more than say that they were.
(1) ; 470 "such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi.
" I have no quarrel with the details regarding the date and place but I do not consider that the portion relating to the nature of the speeches fulfils the requirements which have been laid down by this Court regarding particulars.
Now I fully agree that each case will have to be decided on its own facts so far as this is concerned.
But when weighing the circumstances this must be borne in mind.
The detenu has no right of personal appearance before the Advisory Board or other revising authority, nor can he be represented by counsel.
The Board or other authority can deal with his representation without hearing him or anyone on his behalf.
Therefore, his only hope of being able to convince the Board lies in the explanation he offers.
But how can anyone give a fair explanation of his conduct unless he is told with reasonable plainness what he has done, and in the case of a speech, the words used are everything.
They have been called "verbal acts" in another connection.
Now I take it to be established that Government is bound to give a detenu rea sonable particulars of the acts complained of when conduct is in question.
Why should a different rule obtain when the acts complained of are verbal ? It was contended in the argument that the man who makes the speech is in a position to know what he said and so is not at a disadvantage.
But that, in my opinion, is not the point.
He may know what he said but he cannot know what the authorities think he said unless they give him some reasona ble inkling of what is in their minds.
It has to be remem bered that what the Advisory Board has before it is not necessarily the words employed or even ' their substance but what the authorities say the man said.
This has to be viewed from two angles.
The first is whether the reports handed in to the authorities are Correct.
Even with the utmost good faith mistakes do 471 occur and it is quite easy for a reporter to get his notes mixed and to attribute to A what was said by B. But unless A knows that is what happened, it would be very difficult for him to envisage such a contingency and give the necessary explanation of fact in his representation.
The next point is this.
When a man ,is told that his speech excited disaffection and so forth, he is being given the final conclusion reached by some other mind or minds from a set of facts which are not disclosed to him.
If the premises on which the conclusion is based are faulty, the conclusion will be wrong.
But even if the premises are correct, the process of reasoning may be at fault.
In either event, no representation of value can be made without a reasonably adequate knowledge of the premises.
Envisage for a moment the position of the Board.
In the ordinary course, it would have before it a speech with the offending passages in full, or at any rate the gist of them.
From the other side it would have a bare denial, for that is about all a detenu can say in answer to the grounds given to him when he is not told the premises on which the conclusion is based.
In most cases, that sort of representation would have very little value.
Consider this illustration.
Let us assume the detenu had spoken about Hindus and Muslims but had urged unity and amity and had said nothing objectionable but that unknown to him the police, through a perfectly bona fide mistake, had imputed to him certain offensive words used by another speaker.
What would be the value of a detenu saying "I said nothing objectionable" and that is almost all he can say in such a case.
He cannot envisage the mistake and say, "Oh yes, that was said, but not by me.
It was said by A or B." Consider a second illustration where the detenu had quoted a well known living authority.
I can conceive of cases where words in the mouth of A might be considered objectionable by some but would never be condem ned in the mouth of B. It might make a world of difference to 472 the detenu if he could explain the source of the passages complained of in his speech.
But it might be very difficult for him to envisage the possibility of objection being taken to anything coming from the source from which he quoted.
I am anxious not to be technical and I would be averse to an interpretation which would unnecessarily embarrass Government, but I do conceive it to be our duty to give a construction which, while falling strictly within the ambit of the language used, is yet liberal and reasonable, just to the detenu, fair to the Government.
And after all, what does a construction such as I seek to make import ? It places no great or impossible strain on the machinery of Government.
All that is required is that the authorities should bestow on the cases of these detenus a very small fraction of the thought, time and energy which the law compels in the case of even the meanest criminal who is arraigned before the Courts of this country.
The fact that there is absent in the case of these persons all the usual safeguards, the glare of publicity, the right to know with precision the charge against him, the right to speak in his own defence, is all the more reason why Government should be thoughtful, considerate and kind and should give them the maximum help.
In any case, that, in my opinion, is what the Constitution requires and I am not prepared to abate one jot or tittle of its rigours.
My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case.
One is Vaidya 's case (1) and the other Lahiri 's (2).
In the latter, the point whether the gist of the speech should be given was not considered.
It seemed to have been assumed that it need not.
But I am unable to accept that as authority for anything beyond the fact that was not consid ered necessary on the facts and in the circumstances of that particular case.
As my Lord the Chief Justice pointed out in the earlier decision cited above, the question of (1) ; (2) Not reported, 473 what is vague "must vary according to the circumstances of each case.
" It was also said there that "the conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., mate rials on which the detention order was made.
" It was further said "Ordinarily, the 'grounds ' in the sense of conclusions drawn by the authorities will indicate the kind of prejudi cial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representa tion setting out his innocent activities to dispel the suspicion against him." This envisages cases in which that would not be enough.
It is therefore sufficient for me to say that in a case of this kind, where the matter has to turn on the facts and circumstances of each case, no useful purpose can be served by examining the facts of some other case for use as an analogy.
In my opinion, on the facts and circumstances of the present cases, the grounds supplied were insufficient and the gist of the offending passages should have been supplied.
The omission to do so invalidates the detention and each of the detenus is entitled to immediate release.
Petitions dismissed.
Agent for the petitioners in Petitions Nos. 21 & 22: Ganpat Rai.
Agent for the petitioner in Petition No. 44: V.P.K. Nambiyar.
| IN-Abs | The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the peti tioners under section 3 of the .
The grounds of detention communicated to the petitioners were "that your speeches generally in the past and particu larly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance 01 public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.
" The petitioners contended that under the Constitu tion the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of 452 speech guaranteed by article 19 (1) and that the grounds commu nicated were too vague and indefinite to enable them to make a representation and the provisions of article 22 (s) of the Constitution were not complied with, and their detention was therefore ultra vires and illegal: Held by the Full Court (KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, S.R. DAs and VIVIAN BOSE JJ.) that though personal liberty is sufficiently comprehensive to include the freedoms enumerated in article 19 (1) and its deprivation would result in the extinction of those free doms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in articles 19, 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged.
Consequently, even though a law which restricts freedom of speech and expression which is not directed solely against the undermining of the security of the State or its over throw but is concerned generally in the interests of public order may not fall within the reservation of cl.
(2) of article 19 and may therefore be void, an order of preventive deten tion cannot be held to be invalid merely because the deten tion is made with a view to prevent the making of speeches.
prejudicial to the maintenance of public order.
The deci sions in Brij Bhushan and Another vs The State of Delhi (1) and Romesh Thappar vs The State of Madras(2) are not incon sistent with the decision in A.K. Gopalan vs The State(3).
Held per KANIA.
C.J., PATANJALI SASTRI and S.R. DAS JJ.
(MEHR CHAND MAHAJAN and BOSE JJ.
dissenting) As the time and place at which the speeches were alleged to have been made and their general nature and effect,.
namely, that they were such as to excite disaffection between Hindus and Muslims were also stated in the grounds communicated, they were not too vague or indefinite to enable the petitioners to make an effective representation and the detention cannot be held to be illegal on the ground that article 22 (8) was not complied with.
Per CHAND MAHAJAN and BOSE JJ.
(contra) In the absence of any indication in the grounds as to the nature of the words used by the petitioners in their speech es, from which an inference has been drawn against them, the petitioners would not be able fully to exercise their funda mental right of making a representation, and as there were no such indications in the grounds supplied, there was a non compliance with the provisions of el.
(5) article 22 and the detention was illegal.
The State of Bombay vs Alma Ram Sridhar Vaidya(4) applied.
|
minal Appeal by Special Leave from the Judgment and Order dated the 4th July 1952 of the Calcutta High Court in Criminal Revision No. 312 of 1952 arising out of the Order dated the 12th March 1952 of the Court of Presidency Magistrate at Calcutta in Case No. C/2867 of 1950.
section C. Isaacs (C. P. Lal with him) for the appellant in both appeals.
C. K. Daphtary, Solicitor General of India (Porus A. Mehta and P. G. Gokhale with him) for the respondents in both appeals.
927 1955.
October 31.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These appeals come before us on special leave to appeal granted under article 136 of the Constitution against two orders of the Calcutta High Court dismissing Criminal Revision Petitions Nos. 559 of 1951 and 312 of 1952 preferred by the appellants respectively.
In Criminal Revision Petition No. 559 of 1951, the High Court (Harries, C.J. and Banerjee, J.) confirmed an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197, Criminal Procedure Code.
In Criminal Revision Petition No. 312 of 1952, Lahiri and Guha, JJ.
set aside an order made by another Presidency Magistrate that no sanction was required and they quashed the proceedings against the accused.
The incidents which gave rise to the two complaints are closely inter related and can be set out briefly.
In connection with certain proceedings pending before the Income Tax Investigation Commission it was found necessary to search two premises 17, Kalakar Street and 36, Armenian Street to inspect, take copies and secure possession of certain books, papers and documents believed to be in them.
A warrant was issued by the Commission for this purpose in favour of four persons, namely, H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee, to carry out the search.
The authorised officials went to the Kalakar Street premises, third floor on the morning of December 1950.
Matajog Dobey, (Appellant in Criminal Appeal No. 67), the darwan of Kasbiram Agarwala, says that when he found them forcibly breaking open the entrance door of the flat he challenged them and requested them to desist.
They paid no heed to him, broke open the door, went inside and interfered with some boxes and drawers of tables.
They tied him with a rope and assaulted him causing injuries.
On these facts, he filed a complaint on 27 12 1950 against H.C. Bhari and three others (names unknown) under sections 323, 341, 342 and 109, Indian Penal Code, 928 Armenian Street premises on the evening of 26 12 1950.
Nandram Agarwala (father of Kashiram Agarwala) came to the place and found that they had forcibly opened the lock of the door of the room in which there were several books and papers, which they were collecting and packing into bundles for removal.
He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought to be seized and removed.
Thereupon, two policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to the Burra Bazar thana, where he was as saulted again before being sent to the hospital.
He was brought back and kept in the lock up till midnight when he was released on bail.
Setting out these facts, he lodged a complaint against the four officials, other subordinates and police officers whose names he did not then know but could supply later.
The offences mentioned in the complaint are sections 323, 342 and 504, Indian Penal Code.
Later, the names of two police officers were given Bibhuti Chakravarti and Nageswar Tiwari.
The two complaints were sent over for judicial inquiry to two different magistrates.
On 21 2 1951, the magistrate held on Agarwala 's complaint that a prima facie case had been made out under section 323 against all the four accused and under section 342 against the two policemen.
On this report, summonses were directed to issue under section 323 against all the accused.
On 1 5 1951, two prosecution witnesses were examined in chief and the case stood adjourned to 22 5 1951.
It was on this latter date that the 1st accused Bhari filed a petition, taking the objection of want of sanction under section 197, Criminal Procedure Code.
The objection was upheld and all the accused disc barged on 31 5 1951.
Nandram Agarwala went up to the High Court in revision, but the order of the Presidency Magistrate was affirmed.
In Matajog Dobey 's complaint, after the termina 929 tion of the inquiry, process was issued only against Bhari under sections 323 and 342 , Indian Penal Code for 22 12 1951.
After some adjournments, accused filed on 26 2 1952 a petition as in the other case raising the same objection.
The magistrate on whose file the case was pending overruled the objection and directed that the case should proceed.
Accused Bhari took the matter on revision to the High Court and succeeded.
In Nandram Agarwala 's case (Criminal Revision Petition No. 559 of 1951) Chief Justice Harries and Banerjee, J. held that the test formulated by the Privy Council in Gill 's case(1) applied and that on a fair reading of the complaint, bereft of exaggerations and falsehoods, the officers could reasonably claim that what they did was done by them in the exercise of their official duty.
In Matajog Dobey 's case (Criminal Revision Petition No. 312 of 1952), the learned Judges (Lahiri and Guha, JJ.) came to the same conclusion in these words: "From the nature of the allegations therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to the official character of the petitioner, that is, which attached them to his official character in holding the search".
Mr. Isaacs, learned counsel for the appellants in the two appeals, challenged the soundness of these conclusions and advanced three categorical contentions on their behalf.
Firstly, an act of criminal assault or wrongful confinement can never be regarded as an act done while acting or purporting to act in the discharge of official duty; secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts could never come within the scope of employment; and thirdly, that in any case it was the duty of the court to allow the prosecution to proceed and not stifle it in limine.
He also urged that as the entry on the 23rd December was into a wrong place, P 17, Kalakar Street, and not 17, Kalakar Street which was the authorised premises, the search was illegal from the commencement.
He raised the (1) [1948] L.R. 75 I.A. 41. 930 constitutional point that section 5(1) of the Taxation on Income (Investigation Commission) Act XXX of 1947) and section 197, Criminal Procedure Code were ultra vires, as they were discriminatory in their nature, and offended article 14 of the Constitution.
In the course of his arguments, he referred to section 6 sub sections (7) and (9) of the Taxation on Income (Investigation Commission) Act (XXX of 1947) and rule 10 and the search warrant that was issued under them.
His main argument was that there was no power conferred by statute or under common law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment.
He drew our attention to the sections of the Criminal Procedure Code relating to searches and quoted two old English cases to reinforce this position.
The search warrant is in these terms: "Warrant of Authorisation under sections 6(7) and 6(9) and Rule 8.
Taxation on Income (Investigation Commission) Act, 1947.
Whereas information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases compendiously known as the section Jhabbarmull group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17, Kalakar Street, Calcutta (ii) 47 Khengraputty Street, Calcutta 7, and (iii) the second 'floor and adjoining rooms, 36, Armenian Street, Calcutta, compound, offices and out houses or other places in that locality.
This is to authorise and require you, Sri H. C. Bhari, Authorised Official, Income tax Investigation Commission, (a) to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have 931 reason to believe that such books, documents or papers may be found; (b)to place identification marks on such books, documents and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks; (c) to make copies or extracts from such books, documents and papers; (d) to seize such books, documents and papers and take possession thereof; and (e)to exercise all other powers and duties under the said sections and the Rules relating thereto".
Straightaway, it may be conceded that the warrant set out above specifies precisely the scope of the duties entrusted to the authorised officials.
Whether they took any policemen with them even at the commencement or whether they were only sent for when resistance was offered is not clear.
This, however, does not matter as the warrant authorises police assistance at the search.
The version of the complainants as to what happened at the search is set out in the two complaints.
The story of the accused is found in the petitions filed by Bhari urging the objection under section 197, Criminal Procedure Code.
Details about the occurrences were also elicited at the two judicial enquiries.
There are two medical certificates specifying the injuries found on Nandram Agarwala and Matajog Dobey.
The minor contentions may be disposed of at the outset.
Even if there was anything sound and substantial in the constitutional point about the vires of section 5(1) of the Act, we declined to go into it as it was not raised before the High Court or in the grounds of the petition for special leave to appeal.
Article 14 does not render section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification.
Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.
It was argued that 118 932 section 197, Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion.
There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties.
No one can take such proceedings without such sanction.
If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain, of discrimination.
But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant.
It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the govern ment and not in a minor official.
Further, we are not now concerned with any such question.
We have merely to see whether the court could take cognisance of the case without previous sanction and for this purpose the court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty.
Once this is settled, the case proceeds or is thrown out.
Whether sanction is to be accorded or not is a matter for the government to consider.
The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.
The objection based on entry into the wrong premises is of no substance; it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error; or it may be that the party made an honest mistake.
As a matter of fact, the account books, etc. were found in P. 17, the premises raided.
Slightly differing tests have been laid down in the 933 decided oases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty".
But the difference is only in language and not in substance.
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty.
No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty.
There must be a reasonable connection ' between the act and the official duty.
It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so inter related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
In Hori Ram Singh vs The Crown(1), Sulaiman, J. observes: "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty.
Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction".
The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it".
In affirming this view, the Judicial Committee of the Privy Council observe in Gill 's case(1) "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to (1) ,178.
(2) [1948] L.R. 75 I.A. 41.
934 lie within the scope of his official duty .
The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
Hori Ram 's case(1) is referred to with approval in the later ease of Lieutenant Hector Thomas Huntley vs The King Emperor(1) but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case.
The decision in Meads vs The King(1) does not carry us any further; it adopts the reasoning in Gill 's case(1).
There are two cases of this Court to which reference may be made here.
In Shreekantiah Ramayya Munipalli vs The State of Bombay(1), Bose, J. observes as follows: "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official 's duty to commit an offence and never can be.
But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
The section has content and its language must be given meaning".
The question of previous sanction also arose in Amrik Singh vs The State of PEPSU(6).
A fairly lengthy discussion of the authorities is followed up with this summary: "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required".
The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such (1) ,178, (2) (3) [1948] L.R. 75 I.A. 185.
(4) [1948] L.R. 75 I.A. 41.
(5) ; , 1186.
(6) ; , 1307, 1308.
relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram 's case and also in Sarjoo Prasad vs The King Emperor(1).
Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution.
Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding.
But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition.
Sulaiman, J. refers (at page 179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground".
The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty".
It must be so.
The question may arise at any stage of the proceedings.
The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage.
The necessity may reveal itself in the course of the progress of the case.
We are not prepared to concede in favour of the (1) , 936 appellants the correctness of the extreme proportion advanced by Mr. Isaacs on their behalf that when obstruction is laid or resistance offered against an authorised and therefore lawful search, the officials conducting the search have no right to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a complaint.
Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc. might be secreted or destroyed in the interval; and it would encourage obstruction or resistance even to lawful acts.
It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject matter for inquiry during the proceedings; it would not make the act of removal improper or unlawful.
It is a matter for doubt if Chapters V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party.
Anyhow, section 6, sub section (9) of the Investigation Commission Act makes the provisions relating to searches applicable only "go far as they can be made applicable".
The two English cases relied on are scarcely of any help.
In Jones vs Owen"), a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to move that person gently aside.
Hatton vs Treeby(2) was a case where the Act of Parliament which created a new offence did not in itself provide for a power of detention of the offender.
Where a power is conferred or a duty imposed by statute or otherwise ' and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution.
If in the exercise of the power or the performance (1) [1823] L.J. Reports (K.B.) 139; 2 D. & R. 600.
(2) [1897] L.R.2 Q.B.D. 452. 937 of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance.
This accords with commonsense and does not seem contrary to any principle of law.
The true position is neatly stated thus in Broom 's Legal Maxims, 10th Ed., at page 312: "It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command".
Let us however assume that Mr. Isaacs is right in his contention.
Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty.
The belief that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily mala fide and entirely divorced from or unconnected with the dig ' charge of their duty that it was an independent act maliciously done or perpetrated.
, They. could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well founded or not.
Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force, etc.
alleged against the accused are definitely related to the performance of their official duties.
But taken along with them, it seems to us to be an obvious case for sanction.
The injuries a couple of abrasions and a swelling on Nandram Agarwala and two ecohymosis on Matajog indicate nothing more than a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded.
Mr. Isaacs finally pointed out that the fourth accused Nageswar Tewari was a constable and the case should have been allowed to proceed against him at least.
This question arises only in Nandram Agarwala 's case.
The Magistrate who dismissed the com 938 plaint took the view that theme was no use in proceeding against him alone, as the main attack was directed against the Income Tax Officials.
No such grievance was urged before the High Court and it is not raised in the grounds for special leave.
We hold that the orders of the High Court are correct and dismiss these two appeals.
| IN-Abs | In pursuance of a search warrant issued under section 6 of the Taxation on Income (Investigation Commission) Act, 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case.
On being challenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours.
Two separate complaints one by the darwan and the other by the proprietor under sections 323, 342, etc., of the Indian Penal Code were instituted before two different Magistrates.
The common question for determination in both the complaints was whether under the circumstances sanction was necessary under section 197 of the Code of Criminal Procedure.
Held that sanction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of section 197 of the Code of Criminal Procedure.
article 14 does not render section 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against another is based on a rational classification.
A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official.
In the matter of grant of sanction under section 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of official duty.
In other words there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the 926 accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of this performance of his duty.
The need for sanction under section 197 of the Code of Criminal Procedure is not necessarily to be considered as soon as the complaint is lodged and on the allegations therein contained.
The question may arise at any stage of the proceedings.
The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish ,the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage.
The necessity may reveal itself in the course of the progress of the case.
Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command.
Gill and another vs The King, (1948) L.R. 76 I.A. 41, Hori Ram Singh vs The Crown, , 178, Albert West Meads vs The King, (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley vs The King Emperor, (1944) F.C.R. 262, Shreekontiah Bamayya Munipalli vs The State of Bombay, ; , Amrik Singh vs The State of PEPSU, ; , Sarjoo Prasad vs The King Emperor, , Jones vs Owen, (1823) L.J. Reports (K.B.) 139 and Hatton vs Treeby, , referred to.
|
Appeal Nos.
245 251/72.
From the Judgment and Order dated 21 9 1970 of the Assam and Nagaland High Court in Civil Rules Nos. 105, 106 and 123 to 127/ 66.
A.K. Sen, D.N. Mukherjee and N.R. Choudhary for the Appellant.
Purshottam Chatterjee and S.N. Choudhary for the respond ents.
The Judgment of the Court was delivered by KHANNA, J.
The short question which arises for consid eration in these seven appeals filed on certificate against the judgment of Assam and Nagaland High Court is the scope and validity of the following part of rule 23 of the Assam Agricultural Income tax Rules, 1939 (hereinafter referred to as the rules) framed under section 50 of the Assam Agricul tural Income tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act): "Where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.
" The High Court held that the facts of this case were covered by the above quoted rule.
The High Court also repelled the challenge to the vires o{ the rule.
The appeals arise out of seven petitions filed under articles 226 and 227 of the Constitution of India by the appellant which were dismissed by a common judgment.
The matter relates to assessment years 1946 47, 1947 48, 1948 49, 1949 50, 1950 51, 1951 52 and 1955 56.
Each writ peti tion related to one of these years.
We may set out the facts relating to the assessment year 1946 47 as it is the common case of the parties that the decision about the writ petition relating to that year would govern the other writ petitions also.
The appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S.P. Barooah & Others.
The family was governed by Dayabhaga school of Hindu law and consisted of three members.
The family owned certain tea estates and carried on the business of tea plantation.
It was assessed under the Act in respect of its income derived from manufacture and sale of tea.
The case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition.
A general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms o,f sub section (1) of section 19 of the Act calling upon persons whose agricultural income exceeded 647 the limits of taxable income to furnish returns within the specified time.
On March 24, 1947 the appellant addressed a letter to the Agricultural Income tax Officer praying for extension of ' time for submission of the return.
Another letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income tax Officer stating that he was trying to expedite the submission of the return.
On February 15, 1951 the Agricultural Income tax Officer addressed a communication to the appellant asking him to file the return by March 14, 1951.
The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong.
In his letter dated July 21, 1951 the appellant informed the Agricultural Income tax Officer that he would file his return as soon as some matters were settled.
On March 25, 1955 the appellant addressed another letter to the Agricultural Income tax Officer stat ing that he had not received the relevant assessment orders made by the Income tax Officer (the income tax officer under the Indian Income tax Act, 1922) relating to the assessment years 1946 47 onwards.
On July 1959 the following two notices were sent by the Agricultural Income tax Officer to the appellant: "I am to inform you that following the dissolution of family business of Sashi Prasad Barua and Others in the year 1945, you are liable to furnish a Return of agricultur al incomes including those from the Tea Es tates under your ownership from the assessment year 1946 47.
Please also note that the Returns along with certified copies of Central Income tax Assessment should reach this office on or before 15 8 59.
In default, you will be liable for summary assessment." "Whereas I have reason to believe that your total agricultural income from sources chargeable to agricultural income tax in the year ending the 31st March, 1947 to 1959 (a) has wholly escaped assessment; (b) I therefore propose (i) to assess the said income that has escaped assessment.
I hereupon require you to deliver to me not later than 15 8 59 or within 30 days of the receipt of this notice, a Return in the attached form of your total agricultural income during the previous year ending the 31st March, 1946 to 1958.
" Accompanying the two notices sent by the Agricultural Income tax Officer was also a notice under section 19(2) and section 30 of the Act.
The appellant failed to submit a return or to furnish certified copies of the Central assess ment orders.
The Agricultural Income tax Officer as per order dated June 22, 1961 assessed the total agricultural income of the appellant for the year 1946 47 to be 648 Rs. 1,45,994.
An amount of Rs. 19,321.44 was held to be recoverable from the appellant.
The appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962.
Revision filed by the appellant was dismissed by the Commis sioner of Taxes as per order dated September 28, 1964.
Certificate of public demand showing an amount of Rs. 3,74,087,89 as due from the appellant for the seven years in question was then issued by the Agricultural Income tax Officer.
Proclamation for the sale of the property of the appellant was thereafter issued for the recovery of the amount due from the appellant.
The appellant thereupon filed, as mentioned earlier, seven writ petitions.
Prayer made in the writ petitions was to quash the impugned assess ment orders dated June 22, 1961, the notices of demand dated July 4, 1961 and the proclamation of sale dated December 31, 1964.
Form one of the notices ,addressed by the taxation authorities to the appellant as well as from the return filed on their behalf, it would appear that the taxation authorities were not averse in the event of partition among the members of the Hindu undivided family, to assess the appellant in his individual capacity in respect of the agricultural income arising from those tea estates which had fallen to his share.
Such a course, it seems, was also not acceptable to the appellant.
His stand at the same time was that no assessment could be made in the name of Hindu undivided family as according to him the same had been disrupted as a result of partition.
The appellant thus wanted a complete imunity from payment of agricultural income tax during the years in question even though agricul tural income had arisen from tea estates.
Although a number of grounds were taken in the writ petitions, at the hearing before the High Court only two grounds were pressed on behalf of the appellant.
The first ground was that after the dissolution of the Hindu undivided family, no assessment order could be made under the Act in respect of such disrupted Hindu undivided family.
The second submission advanced on behalf of the appellant was that in case it be held that the matter was covered by rule 23 reproduced above, in that event the said rule was ultra vires the powers of the State Government to frame rules under the Act.
The High Court, as already mentioned, decided on both the points in favour of the revenue and against the appellant.
In appeal before us Mr. Sen on behalf of the appellant has contended that the Hindu undivided family of which the appellant was the Karta was disrupted on January 1, 1945.
It is urged, as was done before the High Court, that after the disruption of that family, it could not be assessed under the Act.
Rule 23 reproduced above, according to the learned counsel, is not attracted in the present case.
In case, however, it be held that the said rule applies to the present case, the State Government, Mr. Sen submits, had no power to make such a rule.
The above contentions have been controverted by Mr. Chatterjee on behalf of the respondents.
The learned coun sel has also emphasised the fact that in none of the commu nications sent by the appellant 649 mentioned above, there was any reference to partition of the Hindu undivided family.
After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well founded.
It is conse quently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income tax Officer.
It may be apposite at this stage to refer to the materi al provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam.
According to the definition of "person" as given in section 2(m) of the Act, person includes an undivided or joint Hindu family.
Section 3 is the charging section.
According to this sec tion, agricultural income tax at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of section 6 shall be charged for each financial year in accordance with, and subject to, the provisions of this Act on the total agricultural income of the previous year of every individual, Hindu undivided or joint family, company, firm and other association of individuals.
Section 19 of the Act deals with the return of income and reads as under: "19.
(1) The Agricultural Income tax Officer shall, on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every person whose agri cultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year: Provided that the Agricultural Income tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or class of persons; (2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income tax Officer, of such amount as to render such person liable to payment of agricultural income tax for any financial year the Agricultural Income tax Officer may serve in that financial year a notice in the prescribed form upon him requir ing him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural income during the previous year.
(3) If any person has not furnished a return within the time allowed by or under sub section (1 ), or sub section 650 (2) or, having furnished a return under either of those subsections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made, and any return so made shall be deemed to be made in due time under this section.
" Section 20 provides for the making of an assessment order.
Section 30 deals with income escaping assessment, and its material part reads as under: "If for any reason any agricultural income chargeable to agricultural income tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income tax on such agricul tural income or, in the case of a company on the prin cipal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 19, and may proceed to assess or reassess such income, and the provi sions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 5C) empowers the State Government to make rules.
The material part of that sec tion reads as under ': "50.
(1) The Provincial Government may, subject to previous publication, make rules for carrying out the purposes of this Act, and such rules may be made for the whole of the Province or such part or parts thereof as may be specified.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may (a) . (b) . (c) . (d) . (e) . (f) . (g) . (h) . (i) . (j) prescribe the manner in which the tax shall be payable where the assessment is made on the agricultural income of a Hindu undivided or joint family and a partition of the.
property of such 651 family has been effected after the date of such assessment; (k) . (l) . (m) .
We have set out above the relevant part of rule 23.
The rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.
It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition iS passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be deemed for the purpose of the Act to continue to be a Hindu undivided family.
Admittedly no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the Karta.
As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family.
We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order.
Such cases, in our view, are covered by other part of rule 23.
We are, however, not concerned with that part.
So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous.
The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of parti tion in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act to continue to be a Hindu undi vided family.
As regards the second contention, Mr. Sen submits that the power which has been conferred by clause (i) of sub section (2) of section 50 of the Act is to make rules pre scribing the manner in which the tax shall be payable when the assessment is made on agricultural income of a Hindu undivided or joint family and a partition of the property of such family has been effected after the date of such assessment.
It is urged that apart from that, the State Government has no power to make a rule for assessment of a Hindu undivided family after a partition takes place in such family.
This contention is devoid of force as we are of the opinion that the State Government was competent to make the part of rule 23 reproduced above in exercise of the powers conferred by sub section (1) of section 50.
According to that sub section, the State Government may subject to previ ous publication make rules for carrying out the purposes of this Act.
It has not been disputed before uS that there was previous publication of the rules in question.
The question is whether the 652 part of rule 23 reproduced above can be said to have been made for carrying out the purposes of the Act.
The answer to this question, in our opinion, should be in the affirma tive.
What the rule contemplates is that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the pur poses of the Act to continue to be Hindu undivided family.
The rule thus relates to the working of the Act.
Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other associa tion of persons.
Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which Hindu undivided family was assessed hitherto.
The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family.
This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub section (1) of section 50 of the Act.
There is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities.
section (1) of section 171 of the Income tax Act 1961 provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family.
The fact that, unlike the Income tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material differ ence.
The rules would be as much binding as would be the statutory provision in this respect.
The only requirement is that the rules should be validly made.
in exercise of the powers conferred by the Act.
So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule.
The proposition is well settled that it is not unconsti tutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like [see Pt.
Banarsi Das vs State of Madhya Pradesh(1)].
In that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947.
The said Act provided for exemption from taxation in res (1) 653 pect of the supply of certain material.
Power was also conferred upon the State Government to amend such exemption by notification.
This Court upheld the validity of that notification.
We may also refer to the case of Powell vs Appollo Candle Company Limited(1) which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales.
That section conferred a power on the Governor to impose.
tax on certain articles of import.
While repelling the challenge to the constitutional validity of that provision, the Privy Council observed: "It is argued that the tax in question has been imposed by the Governor and not by the Legislature who alone had power to impose it.
But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued.
the Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.
In these circumstances, their Lord ships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of ]879 to be beyond the power of the Legislature.
" In Syed Mohamed & Co. vs The State of Madras(2), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.
Section 5(vi) of that Act had left it to the rulemaking authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins.
The validity of the rules was attacked on the ground that it was only the legislature that was competent to decide who 'shall be taxed and that the determination of that question by the rule making authorities was altra vires.
The Madras High Court rejected this contention, and held on a review of the authorities that the delegation of authority under section 5(vi) was within permissible consti tutional Limits.
Powell 's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt.
Banarsi Das.
The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its compe tence to make rule 23 reproduced above.
We, therefore, uphold the judgment of the High Court and dismiss the appeals with costs.
One set of fee P.B.R. Appeals dismissed.
(1) (2) 3 S.T.C. 367.
| IN-Abs | Rule 23 of the Assam Agricultural Income tax Rules, 1939 provides that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu undivided family hitherto.
assessed as undivided or joint, such family shall be deemed, to continue to be a Hindu undivided or joint family.
The assessee was the Karta of a Hindu undivided family, which was assessed to agricultural income tax in respect of income derived from the manufacture and sale of tea.
The assessee contended before the Agricultural Income tax Officer that, since there was disruption of the Hindu undi vided family, no agricultural income tax was payable exen though agricultural income had arisen from tea estates.
This plea was rejected.
His petition under article 226 of the Constitution impugning the validity of r. 23 had been dis missed by the High Court.
In appeal to this Court it was contended that (i) after the dissolution of the family no assessment order could be made under r. 23 in respect of such disrupted Hindu Undi vided family (ii) the State Government had no power to make a rule for the assessment of a Hindu undivided family after a partition took place in the family.
Dismissing the appeals, HELD: (1) The language of r. 23 clearly warrants the conclusion that in the absence of an order apportioning the liability to tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall ,be deemed, for the purpose of the Act to continue to be a Hindu Undivided family.
No order apportioning the liability to, tax on ' the basis of the alleged partition having been passed, the family shall continue be treated as a Hindu undivided family.
[651 C F] 2(a) The liability for tax having been created by the charging section, the rule deals with the question as to who should be the person that should be assessed to tax.
This is a matter of detail to carry out the purposes of the and the State Government was well within its competence to make the rule in exercise of its rule making power.
[652 C D] (b) The fact that.
unlike the Income tax Act, there is no statutory provision in the Act and the matter is dealt with by the rules, would not make any material difference.
The rules would be as much binding as would be statutory provision in t,his respect.
[652 E F] (c) It is well settled that it is not unconstitutional for the legislature to leave it to the executive to deter mine the details relating to the working of taxation laws.
such as selection of persons on whom the tax is to be levied.
the rate at which it is to be charged in respect of different classes of goods and the like.
[652 G H] Pt.
Banarsi Das vs State of Madhya Pradesh [1959] S.C.R. 427, followed.
Powell vs Appollo Candle Company Limited [1885] 10 A.C. 282 and Syed Mobgreed & Co. vs The State of Madras 3 S.T.C. 367, referred to. 646
|
Civil Appeal No. 1763 of 1968.
(From the Judgment and Decree dated the 28th July, 1964 of the Kerala High Court in Appeal Suit No. 843 of 1960).
T.C. Raghavan, Sardar Bahadur Saharya and V.B. Saharya, for the appellant.
T.S. Krishnamoorthy Iyer and M.R. Pillai,.
for Respondent No. 1.
T.S. Krishnamoorthy, P.K. Pillai and N. Sudhakaran, for Respondent No. 2.
638 The Judgment of the Court was delivered by BEG, J.
This is a defendent 's appeal by Certificate granted by the Kerala High Court under Article 133(1)(a) of the Constitution as a matter of course before its amendment because the High Court had modified a decree in a partition suit and the subject matter satisfied the requirements of the unamended Article 133.
The parties to the partition suit are descendants of Narayana Prabhu (hereinafter referred to as 'Narayana ').
Krishna, the plaintiff (now dead) was the 3rd son of Nara yana.
The defendant appellant, Venkateswara, was the eldest of the four sons of Narayana.
The partition suit related to 72 items mentioned in schedule 'A ' to the plaint claimed by the plaintiff to be joint family property.
It appears that there was no dispute with regard to certain items, but, the defendant appellant claimed other items as his exclusive property on the ground that they had been purchased from his personal income.
due to his own enter prise and exertions and ability in carrying on business.
The Trial Court had accepted the case of the defendant appellant that all items, except No. 35 and a part of item No. 52 which belonged, to the 3rd defendant, were the self acquired properties of the defendant appellant.
The High Court re versed this finding on the ground that there was "little reliable: evidence on record as to.
the exact source of the. fund with which the first defendant started the trade".
The High Court rejected the submission of the defendant appel lant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant appel lant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venka teswara.
The High Court relying on certain documentary evidence, including the letter heads showing the business as that of "P. N. Venkateswara Prabhu & Brothers" held that the business was joint family business.
The partition suit was filed originally in another Court but was sent to the Court of the Second Additional Sub Judge of Alleppey in 1957, and the preliminary decree was passed on 5th August, 1960.
The High Court allowed the appeal, modifying the decree to the extent that 3/4th share of items 4 to 72 of the schedule, except item 35 and part of 52 standing in the name of the 3rd defendant, were held to, be partible properties as part of Joint family business, but it excluded assets which came into.
existence after the filing of the. partition suit which operated as a clear unequivocal expression of intention to separate.
It also, left the extent of mesne profits of landed properties to be decided in proceedings for the passing of the final decree.
It appeals that the defendant appellant had also filed a money suit in the Court of the Munsif only against defendant No. 3, one of the four brother 's, but all of them were impleaded in the partition suit.
The money suit was, howev er, transferred to the file of the Additional Sub Judge and tried together with the partition suit and was also de creed by the Additional Sub Judge of Alleppey on the same date as the partition suit.
The plaintiff respondent had appealed against both the decrees in the High Court.
The two appeals were heard and decided together by the High Court.
The High Court, after pro 639 nouncing judgment in the partition suit, proceeded to give judgment, under a new heading and number of the appeal in the money suit.
It said, in this separate judgment: "The suit that gave rise to.
this appeal has been instituted by the respondent against the appellant for money due on 14 10 1123 on account of tobacco delivered to the latter 's shop.
The defence was that the trades run by both the brothers were parts of the joint family trade, and not separate to foster such a claim by the respondent on the appellant.
The court below, having found in the other suit the shops run by the parties to belong to the concerned individuals, has decreed the suit.
As we have reversed that finding in A.S. No. 843 of 1960 and found the shop stand ing in the name of each brother to be a branch of the joint family trade.
in tobacco and directed ascertainment of the assets and liabilities of the entire trade to be settled as on 2 3 1124, the date of that partition suit, this suit has to be dismissed".
The judgments were, therefore, two.
separate ones given in one continuation but under ' separate headings.
Separate decrees were prepared in each appeal relating to a separate case.
As the defendant appellant did not seek leave to file any appeal against the High Court 's judgment and decree in the money suit and there is no appeal before us against the decree in the money suit, a preliminary objection is taken on the ground that the defendant 's appeal now before us is barred by res judicata.
Learned Counsel for the defendant appellant urges that the two suits were different in nature and were filed in different Courts originally so that the Court trying the partition suit and the Court in which the money suit was triable were not Courts of coordinate jurisdiction.
It was also.
objected that the partition suit was earlier and the money suit having been filed sixteen days later could not be deemed to be a suit decided earlier.
Furthermore, it was pointed out that the judgment was common.
It was also urged that.
all the four brothers were parties to the parti tion suit but the money suit was only between two brothers.
It is true that the appeals against both the decrees of the Trial Court were heard together in the High Court, and, although, the appeal in the money suit is decided under a separate.
heading and the short judgment in it appears to be practically consequential on the judgment in the partition suit, yet, the judgments in the two appeals decide a common issue and resulted in two decrees.
It is urged that, whereas the defendant appellant had.
filed an appeal on the strength of a certificate granted to him as a matter of right, following upon the modification of the decree of the Trial Court by the High Court, the defend ant appellant had no such right of appeal in this Court.
Hence, it was submitted that neither in law nor in equity could the.
defendant appellant be.
barred from putting forward his objections to the decree in the partition suit.
640 Certain decisions were relied upon by learned Counsel for, the defendant appellant Venkateswara in support of the contention that the plea of res Judicata is not available as a preliminary objection to the respondent to the hearing of the appeal before us in the circumstances of this case.
We proceed to consider these cases.
Narhari & Ors.
vs Shankar & Ors.
,(1) is no doubt the judgment of the Supreme Court of India, although it was, if one may so put it, "the Hyderabad Wing" of it in a transi tional period when a learned Judge of this Court, Mr. Jus tice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His Exalted Highness the Nizam 's Judicial Committee.
Technically, however, it was this Court 's judgment.
In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two separate appeals.
It elaborated the ratio of the decision as follows (at p. 757 758): "It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.
As has been observed by Tek Chand J. in his learned judgment in Mst.
Lachmi vs Mst.
Bhuli (AIR mentioned above, the determining factor is not the decree but the matter in controversy.
As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.
The question of resjudicata arises only when there are two suits.
Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit.
When there is only one suit, the question of res Judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.
As such, there is no question of the application of the principle of res judicata.
The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal.
The two decrees in substance are one".
It seems to us that to be fair to confine the ratio deci dendi of the Hyderabad case to cases where there is only one suit.
In the case now before us, not only were the decrees different but the suits were different.
The mere fact that the judgments in the two suits were given togeth er or in continuation did not matter.
In fact, even in form.
the judgment in the appeal relating to the money suit was separate from the rest of the judgment.
And, in any case, there were two separate decrees.
(1) ; 641 We think that Section 11 Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled.
The principle embodied in the statute is not so much the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence: firstly, interest reipublicoe ut sit finis litium it concerns the State that there be an end to law suits; and, secondly, "nemo debet bis vexari pro una et eadem cause" no man should be vexed twice over for the same cause.
Sir Lawrence Jenkings pointed out, in Sheoparsan Singh vs Ramnandan Prasad Singh(1), that the rule of res judicata "while rounded on ancient precedent, is dictated by a wisdom which is for all time".
Litigation which has no end or finality defeats its very object.
This object is decision of disputes or an end to each litigation.
But, if there is no finality to it, the dispute cannot be said to be really decided at all.
It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible.
Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy.
An "estoppel", even if it be "by record", rests on somewhat different grounds.
Even such an estoppel savours of an equity or justice created by actions of par ties the results of which have become recorded formally behind which they are not allowed to go.
Reliance was also placed on Govind Bin Lakshmanshet Anjorlekar vs Dhondba 'Ra 'V Bin Ganba ' Ra 'F 'Ta 'Mbye(2), on behalf of the appellant.
Here, it was held that decisions in previous suits of the nature of small cause suits in which there was no right of second appeal could not oper ate as res judicata in suits before Courts in which ques tions were elaborately litigated and decided in cases which could go to the High Court in second appeal.
We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors.
vs Nachamal(3), where it was similarly held that: "A decision in a previous suit of a small cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same Court, which, not being of a small cause nature, is open to second appeal".
We have to remember that Small Cause juris diction is a limited one exercisable only in specified matters.
Decisions given beyond Jurisdiction to try an issue cannot operate as res ]udicata.
Our attention was drawn to explanation II of section 11, on behalf of the respondents.
It reads: "Explanation II.
For the purposes of this Section, the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court".
(1) A.I.R. 1961 P.C. 78=43 I.A. 91.
(2) I.L.R. Vol.
XV Bombay 104.
(3) I.L.R. 29 Madras 195.
642 It seems to us that section 11 itself refers to.
a Court which actually tries the, two suits.
We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court.
That Court was, obviously, competent to try both the suits.
After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided both of them.
This was enough to make the differ ence in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial.
Similarly, the High Court was competent to hear appeals from judgments in both.
It heard and decided the two appeals together.
So far as the question of appeal to this Court is con cerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question Whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided.
That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal.
The mere fact that the defendant appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the parti tion suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for Special Leave to appeal.
Learned counsel for the respondents appears to us to have rightly relied upon Bhugwanbutti Chowdhrani vs A.H. Forbes(1), where it was held that "in order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way".
He also relied on Lonan kutty vs Thomman & Anr.(2), a recent decision of three Judges of this Court, where Chandrachud, J., observed (at p. 1650): "Respondents did not file any further appeal against the decree passed by the Dis trict Court in the appeals arising out of their suit.
They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial ' Court in the appellant 's suit.
Thus, the decision of the District Court rendered in the appeal arising out of the respondent 's suit became final and conclusive".
It was also observed there: "The decision of the District Court was given in an appeal arising out of a suit which, though instituted subse (1) I.L.R. (2) ; Supp.
S.C.R. 74.
643 quently, stood finally decided before the High Court disposed of the second appeal.
The decision was, therefore, one in a 'former suit ' within the meaning of section 11, Explanation I, Civil Procedure Code".
The expression "former suit" according to explanation I of section 11, Civil Procedure Code, makes it clear that, if a decision is given before the institution of the pro ceeding which is sought to be barred by res judicata, and that decision is allowed to become final by operation of law, a bar of res judicata would emerge.
This as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty 's case (supra).
The only other point which we need consider is whether the fact that the money suit was only between the defendant appellant and one of his brothers, who was also a respondent in the partition suit, makes any difference to the applicability of the principle of res judicata in this case.
Learned Counsel for the appellant submits that the defendant appellant could not come within the ambit of Explanation VI of section 11, Civil Procedure Code which provides as follows: "Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigat ing".
On the other hand, learned counsel for the respondent sub mits that the case of the respondents fully covered by this explanation and relies on Kumaravelu Chettiar & Ors.
T.P. Ramaswamy Ayyar & Ors.
C) where it was held: "Explanation 6 is not confined to cases covered by O. 1, R. 8 but extends to include any litigation in which apart from the Rule altogether, parties are entitled to represent interested persons other than themselves".
We think that the submission made by the learned counsel for the respondents is sound.
In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims.
If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others".
Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical.
If we were to hold otherwise, it would neces sarily mean that there would be two inconsistent decrees.
One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.
We think this will be the case here.
(1) A.I.R. 1933 P.C. 183.
7 112SCI/77 644 We need not deal with other cases of this Court cited, including Sheodan Singh vs Smt.
Daryao Kunwar(1), which supports the respondents ' submissions, and Raj Lakshmi Bai & Ors.
vs Banamali Sen & Ors.( ), which is not directly ap plicable inasmuch as that was a case in which the general principles of res judicata, and not section 11 Civil Proce dure Code, were applied.
The preliminary objection in the case before us is fully supported, for the reasons given above, by section 11, Civil Procedure Code read in the light of the Explanation mentioned above.
Consequently, the preliminary objection must prevail.
Learned counsel for the appellant, conscious of the difficulties in his way, filed after the hearing of the appeal was begun before us, an application for condonation of delay in applying for leave to appeal against the judg ment of the High Court in the money suit.
He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his client 's favour.
On the other hand, learned counsel for the respond ents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents.
It seems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned.
Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal.
Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant appellant, it seems to us that the appellant would have a very uphill task indeed in argu ing his appeal even in the partition suit.
We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957.
If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.
We, therefore, reject the Civil Miscellaneous Petition No. 8585 of 1976, the application for condonation of delay in the filing the Special Leave Peti tion.
We dismiss the Civil Miscellaneous Petition No. 8586 of 1976 as well as the over delayed special leave petition No. 2816 of 1976.
The result is that this appeal must be and is hereby dismissed, but, in the circumstances of the case, the par ties will bear their own costs.
P.B.R. Appeal dismissed.
| IN-Abs | Explanation II to section 11 C.P.C. provides that for the purposes of the section, the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court.
Explanation VI provides that where persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the per sons so litigating.
The respondents and the appellant were brothers.
The respondents filed a suit for partition of the family proper ties in the Court of Additional Sub Judge of competent jurisdiction.
The appellant on the other hand filed a money suit against one of the brothers in the Court of a Munsiff in which he impleaded his other brothers.
Ultimately, the money suit was transferred to the Court of the Additional Sub Judge, where the partition suit was Rending and both the suits were tried together.
In appeal, the High Court heard and decided both the appeals together and pronounced sepa rate judgments in continuation but under separate headings and a separate decree was prepared in each appeal.
The appellant filed an appeal in this Court under article 133(1)(a) of the Constitution before its amendment, as a matter of right, against the judgment of the High Court in the parti tion suit.
A preliminary objection was taken by the respondents in this Court that the appeal was barred by res judicata in that the appellant did not file an appeal against the judgment and decree in the money suit.
The appellant on the other hand contended that neither in law nor in equity was he barred by res judicata because he filed the appeal in the partition suit as a matter of right, which was not available to him in the money suit.
Dismissing the appeal, HELD: The preliminary objection is supported by section 11 of the Code of Civil Procedure read in the light of Explana tions II and VI.
[644 B] 1(a) Section 11 enables a party to raise the statutory plea of res Judicata if the conditions given therein are fulfilled.
Section 11 contains, in statutory form, with explanations, a very salutary principle of public policy.
[641 C D] In the instant case, the incompetence of the Court, in which the money suit was initially filed, to try the parti tion suit did not matter when the actual hearing of both the cases took place in the same Court.
That Court was compe tent to try both the suits.
After the money suit had been transferred, the second Additional Sub Judge actually tried and decided both of them.
That was enough to make the difference in the jurisdiction of the Court in which the suits were initially filed, quite immaterial.
Similarly the High Court was competent to hear the appeals from judgments in both cases.
It heard and decided the appeals together.
[642 A C] Narhari & Ors.
vs Shankar & Ors. ; distin guished.
Lortankutty vs Thomman & Anr., ; Supp.
S.C.R. 74 followed.
637 Sheoparsan Singh vs Ramnandan Prasad Singh, .AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Anjorlekar vs Dhondba 'Ea ' V Bin Ganba ' RA '17 ' 'V ' Ta ' Mbve, ILR Vol.
XV Bombay 104 and Avanasi Gounden & Ors.
vs Nachammal, ILR 29 Madras 195 referred to.
Bhugwanbutti Chowdhrani vs A.H. Forbes ILR ap proved.
(b) The expression "former suit" in Explanation I of section 11 makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge.
[643 B] (c) One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will conap into existence if it is not applied.
In a partition suit each party claiming that the property is joint asserts a right and litigates under a title which is common to others who make identical claims.
If that very issue is litigated in another suit and decided, there is no reason why others making the same claim cannot be held to be claiming the right in common for themselves and others.
Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical.
To hold otherwise would mean that there would be two inconsistent decrees.
[643 G H] In the instant case, the fact that the other suit was a money suit between the appellant and one of his brothers, who was also the respondent in the partition suit, does not make any difference to the applicability of the principle of res judicata.
[643 C] Kumaravelu Chettiar & Ors.
T.P. Ramaswamy Ayyar & Ors, A/R followed.
Sheodhan Singh vs Smt.
Daryao Kunwar, [1966] 3 S.C R. 300 and Bai Lakshmi Rani & Ors.
vs Banamali Sen & Ors., ; referred to.
The question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions, but on the question whether the same ' issue, under the circumstances given in section 11, has been heard and finally decided.
[642 C D] In the instant case, the High Court heard and finally decided both the appeals before it.
The mere fact that the appellant could come up to this Court in appeal as of right by means of a certificate of fitness under the unaa mended article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt was made to question the correctness or finality of that decision even by means of an application for special leave.
[642 D E] 3.
The appellant 's application for condonation of delay in applying for leave to appeal against the High Court 's judgment in the money suit must be dismissed.
His delay in waking up to the existence of the bar of res judicata is much too long to be condoned.
The judgment of the High Court based on the admissions of the appelant, does not disclose any error of law so as to deserve the grant of special leave to appeal.
The partition suit was instituted as long ago as 1947.
If there is a case in which the prin ciple that litigation should have an end ought 'to be applied, it is this.
[644 C F]
|
Civil Appeals Nos. 1237 and 1238/72.
From the Judgment and Order dated 8 11 71 of the Orissa High Court in O.J.C. Nos. 339 and 385 of 1968.
AND Civil Appeal No. 1730 of 1973.
Appeal by Special Leave from the Judgment and Order dated the 26th February, 1973 of the Orissa High Court in O.J.C. No. 130 of 1973.
Gobind Das, (Mrs.) section Bhandare, M.S. Narasimhan, A. K. Mathur, A.K. Sharma and (Miss) Malini Paduval for the Appellants in all the appeals.
D.P. Singh and G.S. Chatterlee for Respondent No. 1 in CAs.
1237 38/72.
Santosh Chatterjee and G.S. Chatterjee for Respondent No. 2 in C.As.
1237 38/72.
B. Parthasarthi for Respondents 1, 3, and 4 in CA 1730/73.
L.N. Sinha, Sol.
Gen. of India and Vinoo Bhagat for Respondent 7 in CA 1730/73.
Nemo for Respondents 2, 5, 6.
in C.A. 1730/73.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of three civil appeals Nos. 1237 and 1238 of 1972 and 1730 of 1973 against the judgment of Orissa High Court.
The first two appeals have been filed on certificate, while the third appeal has been filed by special leave.
We may first deal with civil appeals 1237 and 1238.
On February 22, 1954 a notification was issued under sub sec tion (1) of section 3 of the Orissa Development of Indus tries, Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of 1948) (hereinafter 668 referred to as the Act) by the Government of Orissa for the acquisition of 78 square miles of land for the "development of industries,.
namely, establishment of a steel plant and allied and ancillary industries".
The steel plant mentioned in the notification subsequently ' came to be known as the Rourkela steel plant.
Another notification! was issued on February 9, 1955 for the acquisition of further four square miles of land for the above purpose.
It may be mentioned that according to section 5 (1) of the Act, when a notice of acquisition is served or is published under section 4, the land shall vest absolutely in the State Government free from all encumbrances on the date the ' notice is served or pub lished in the gazette.
The appellants, who were owners of some of the acquired lands, filed writ petitions before the ' High Court challenging the validity of the acquisition.
The High Court dismissed both the petitions.
In appeal before us, Mr. Gobind Das on behalf of the appellants has contended that the State Government was not competent to acquire the land in question under the Act for the establishment of a steel plant.
Our attention is invit ed in this connection to sub section (1 ) of section 3 of the Act which provides inter alia that whenever it appears to the 'State Government that it is necessary or expedient to acquire speedily any land for the purpose of the devel opment of industry, a notification to that effect shall be published in the gazette stating the area and the boundaries of the land proposed to be acquired.
The argument of Mr. Gobind Das is that the acquisition of the land for the establishment of a steel plant cannot be said to be for the purpose of the development of the industry.
It is not denied by the learned counsel that a steel plant constitutes an industrial undertaking and that the object of establish ing a steel plant is not different from the purpose of the development of the industry as ordinarily understood.
It also cannot be disputed that Rourkela steel plant consti tutes a big milestone in the industrial development of the country.
The contention of Mr. Gobind Das, however, is that the words "development of industries" have a limited meaning as defined in the Act and the establishment of a steel plant cannot be considered to be for development of industries.
The definition of "development of industries" has been given in section 2(c) of the Act.
According to the definition, development of industries means and includes the construc tion of the Hirakud Dam and other dams and reservoirs, Hydro Electric Projects and such other schemes or projects as the State Government may by notification from time to time, specify in this behalf.
We have already mentioned above that the first notification for the acquisition of land was issued on February 22, 1954.
Two days before that notification, on February 20.
1954 the Governor of Orissa issued a notification in pursuance of clause (c) of section 2 of the Act.
In that notification, it was stated that the project for the establishment of a steel plant and allied and ancillary industries in the block of villages round about Rourkela.
shall be included within the meaning of the expression "development of industries", as defined in clause (c) of section 2 of the Act.
In the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of "development of industries", as given in the Act.
We are unable to subs 669 cribe to the submission of Mr. Gobind Das that the schemes and projects which could be the subject matter of a notifi cation under section 2(c) must be such as are similar to Hirakud Dam or other HydroElectric projects.
Clause (c) of section 2 confers wide powers on the State Government to notify any scheme or project as it may consider appropriate for the development of industries and we find nothing in that clause that the scheme or project which can be the subject matter of a notification must be one similar to Hirakud Dam or other dams or reservoirs or hydro electric projects.
It is then argued by Mr. Gobind Das that part of the lands which were acquired for the purpose of steel plant and ancillary industries are being used as a civil township.
It is contended that the acquired land could only be used for the steel plant and ancillary industries and not for a civil township.
This contention is equally devoid of force.
The establishment of a steel plant necessarily postulates the construction of residential quarters for the workmen to be employed in the ' plant.
In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play grounds, for hospitals and for residential quarters of persons opening their shops cater ing to the needs of the employees of the steel plant.
Lands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as also for cremation and burial of the dead.
Land would also be needed for a variety of other purposes and civic amenities.
A township is a necessary adjunct and concomitant of a big steel plant.
The fact, therefore, that part of the land which was ac quired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.
In civil appeal 1237 of 1972, Mr. Gobind Das has also advanced an argument that possession of the land was not taken from the appellant.
We, however, find that the judg ment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued.
In the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal before us.
Civil appeal 1730 of 1973 arises out of writ petition to challenge the validity of a notification dated march 19, 1958 under section '4 of the Land Acquisition Act for the acquisition of 31.06 acres of land for expansion of rail facilities to serve the steel plant at Rourkela.
A writ petition to challenge this notification was filed on February 3, 1973.
The contention which was advanced before the High Court and has been repeated before us with a view to challenge the validity of the acquisition of this land is that fourteen years after the acquisition of the land, the railway authorities for whom the land was acquired have transferred 3.21 acres of land to the Notified Area Commit tee, Rourkela.
The above submission, in our opinion, is without merit.
According to the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the 670 link road, bus and taxi stands and shops surrounding the railway station.
The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired.
Apart from that, we find that this Court has recently held in the case of Gulam Mustafa & Ors.
vs State of Maharashtra & Ors.
(1) that there is no princi ple of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the decla ration.
All the three appeals consequently fail and are dis missed but in the circumstances without costs.
Appeals dismissed.
| IN-Abs | Section 2(c) of the Orissa Development of Industries, Irrigation, Agriculture, Capital construction and Resettle ment of Displaced persons" (Land Acquisition) Act, 1948 (Act XVIII of 1948), defines development of industries to mean and include the construction of Hirakund Dam and other dams and reservoirs, Hydro Electric Projects and such other schemes or property as the State Government may by a notifi cation specify in this behalf.
By a notification dated 20th February, 1954 it was stated that "the project for the establishment of a steel plant and allied and ancillary industry in the block of villages round about Rourkela shall be included within the meaning of the expression "develop ment of industries" as defined in cl.
(c) of section 2 of the Act.
By notification dated 22nd February, 1954 and 9th Febru ary, 1955 82 sq.
miles of land was acquired for the "devel opment of industries, namely establishment of steel plant and allied and ancillary industries".
The above land vested absolutely in the State Government free from all encum brances on the dates of the above notifications.
The writ petitions filed by some owners of some of the acquired lands challenging the validity of the acquisition were dismissed in limine.
In appeal to this Court, the appellants contended (a) the State Government was not competent to acquire the land in question under the Act for the establishment of a steel plant as it cannot be said to be for the purpose of the development of industry; (b) the acquired land could only be used for the steel plant and ancillary industries and not for a civil township; (c) the transfer of 3.21 acres of land by the Railway authorities long after 14 years of the acqui sition to the Notified Area Committee for construction of taxi stand, busroad etc.
in and around the Railway Station is bad.
Dismissing the appeals to this Court, HELD: (1) In the face of the notification dated 20th February, 1954 and 2(c) of the Orissa Development .of
Indus try, Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act 1948, the establishment of steel plant and ancillary indus tries at Rourkela answers to the definition of development of industries as given in the Act.
[668 G H] Clause (c) of Section 2 confers wide powers on the State Government to notify any scheme or project as it may consid er appropriate for the development of industries and there is nothing in that clause that the scheme or project can be the subject matter of a notification must be similar to Hirakund Dam or other dams or reservoirs or hydro electric projects.
[669 A B] (2) The contention that the acquired land could only be used for the steel plant and ancillary industries and not for the civil township is devoid of force.
A township is a necessary adjunct and concomitant of a big steel plant.
The establishment of a steel plant necessarily postulates the construc 667 tion of residential quarters for the workmen, shopping areas, schools, hospitals, post offices etc.
The fact therefore that part of the land which was acquired has been used for civil township would not affect the validity of" the acquisition of the land.
[669 C D] (3) There is no principle of law by which a valid, compulsory acquisition stands void because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration.
In the instant case, the transfer of 3.21 acres of the land by the Railways is to the Notified Area Committee who is the appropriate body to construct and maintain the link roads, bus and taxi stands and shop surrounding the Railway Station.
The land is not being used for a purpose extraneous from that for which the land was initially acquired.
[669 G H. 670 A B] Gulam Mustafa & Ors.
vs State of Maharashtra & Ors.
[1976] I SCR 875 applied.
|
Civil Appeal No. 1386 of 1976.
From the Judgment and Order dated 21 9 76 of the Karna taka High Court in W.A. No. 150 of 1976.
H.B. Datar, Sanjeev Aggarwal and R.B. Datar for the Appel lant.
S.T. Desat, S.K. Mehta, K.R. Nagara]a and P.N. Puri for Respondent.
661 The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate which is directed against the judgment and order dated September 21, 1976, of the High Court of Karnataka at Bangalore reversing the judgment and order dated March 3, 1976 of a Single Judge of that Court dismissing writ petition No.6945 of 1975 filed by the respondent involves a substantial question of law of general public importance relating to the validity of the levy of what is styled as 'supervision fee ' under section 124 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act ') read with rule 26 of the Karnataka Municipalities Taxation Rules, 1965 (herinafter referred to as 'the Rules ').
The facts of the case lie in a short compass and may be stated as follows: Iron ore which is extracted from its mine heads in Hospet Taluka is brought over and stocked in Hubli Railyard by the Mysore Minerals Limited which is a Government undertaking.
Having taken up the contract of transhipment of the iron ore from Hubli Railyard to Karwar and Belekeri harbours, the Mysore Minerals Limited has sublet the same to the West End Minerals and Exports Private Limited.
The latter has in turn entrusted the execution of the contract to.
the re spondent which is engaged in transport business.
The iron ore is accordingly lifted by the respondent in its trucks from Hubli Railyard and carried to Karwar and Belekeri harbours.
The trucks of the respondent carrying the iron ore 'have (en route) to pass.
in the course of transit through the limits of various town municipalities situate on the highway of which the appellant happens to be one, but they do not unload and reload the iron ore at any intermedi ary point or stop.
The appellant, on the basis of a resolution passed by it on January 25, 1975, and approved by the State Government levies the aforesaid fee of Re. 1/ per truck under section 124 of the Act read with rule 26 of the Rules.
The trucks of the respondent using the State highway within the munici pal limits of Kalghatgi, District Dharwar are accordingly made to pay the fee for each of their trips.
Feeling that the fee realised by the appellant was invalid, the respondent filed a writ petition, being writ petition No. 6945 of 1975 in the High Court of Karnataka challenging the levy of the fee and seeking the issuance of a writ of mandamus restraining the appellant from realising the said fee.
A Single Judge of the High Court upheld the fee in question and dismissed the writ petition holding that the expression 'importer ', 'place of import ' and 'place of export ' as used in section 124 (1 ) of the Act are compre hensive enough to describe a person who merely brings the goods within the municipal limits for immediate exportation and the respondent who answered that description was bound to pay the fee.
Aggrieved by this judgment and order, the respondent took the matter in appeal to a Division Bench of the High Court which allowed the appeal and issued the writ prayed for by the respondent by its 662 judgment and order dated September 21, 1976.
It is against this; judgment and order that the present appeal is direct ed.
At the hearing of the appeal, counsel have reiterated the contentions urged on behalf of the parties in the High Court.
The sole question that arises for determination in this appeal relates to the validity of the aforesaid levy.
For a proper detemination of this question, it is necessary to advert to section 124 of the Act and rule 26 of the Rules.
"Section 124: Non liability for octroi and refund of octroi ongoods in transit. (1) Any article or animal brought into the municipal limits for the purpose of immediate exportation may at the option of the importer not to be subjected to levy of octroi if such article or animal be conveyed direct from the place of import to the place of export by such routes, within such time, and under such supervision as the municipal council may by resolution determine.
For purposes of this subsection the municipal council shall on payment of the prescribed fees issue promptly the necessary transport permits.
(2) When any article in respect of which octroi has been paid is exported from the municipal limitS, in the same condition in which it was brought into or received from beyond the municipal limits, the amount of octroi paid Shall, subject to such rules as may be prescribed, be refunded.
" "Rule 26: .
In case the person bringing the goods wishes to transport the goods at once beyond the limits of the municipality he shall do so only after obtaining a transport permit in Form IV, on payment of a fee of rupees two for each lorry and rupee one in other cases in the case of a city municipal council and rupee one for each lorry and fifty paise in other cases in the case of a town municipal council.
" The opening words of section 124 of the Act viz. "any article or animal brought into the municipal limits for the purpose of immediate exportation" on the construction of which the up shot of the case, depends are very important.
They imply processes of 'importing into ' and 'exporting from ' the municipal limits of goods or animals and are indicative of an element of repose and rest of the goods within the municipal limits.
As rightly held by the Divi sion Bench of the High Court, the expressions 'brought into ' and 'immediate exportation ' do not comprehend within their sweep the continuous process of transit of goods, by vehi cles which merely use the State highways passing through the areas which lie within the municipal limits.
In the.
instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within the municipal limits and is not unloaded and reload ed at any place within the municipal 663 area.
As such, the important element of repose and rest which the words 'brought into the municipal limits for the purpose of immediate exportation ' imply is absent in the instant case.
In The Central India Spinning and Weaving and Manufac turing Company Limited, The Empire Mills, Nagpur vs The Municipal Committee, Nagpur(1), this Court while discussing the meaning of the expression 'a terminal tax on goods or animals imported into or exported from the limits of the municipality ' occurring in section 66(1)(0) of the C.P. and Berar Municipalities Act, 1922, held that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax.
The following observations made therein which have an impor tant bearing on the decision.
of the present appeal are worth quoting : "The efficacy of the relative contentions of the parties requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and "the limits of the Municipality".
In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him.
. .Lexico logically they (the words 'import ' and "export;) do not have any refer ence to goods in 'transit ' a word derived from transit bearing a meaning similar to trans port, i.e. to.
go across.
The dictionary meaning of the words 'import ' and 'export ' is not restricted to their derivative meaning but bear other connotations also . .
The word "transit", in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another; the passage or carriage of persons or goods from one place to another; it also means to pass across or through (some thing) to traverse, to cross.
Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods "imported into or exported from" because they are neither being exported nor imported but are merely goods carried across a particular stretch of terri tory or across a particular area with the object of being transported to their ulti mate ' destination which in the instant case was Nagpur . .
By giving to the words "imported into or exported from" their deriva tive meaning without any reference to the ordinary connotation of these.
words as .used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended.
The effect of the construction of "import" .
or "export" in the manner in sisted upon by the respondent would make rail borne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax .on their arrival at the railway station or ; 1958 S.C. 352: 664 departure therefrom or both which would not only result in inordinate delays and unbearable burden on trade both inter State and intra State.
It is hardly likely that that was, the intention of the Legislature.
Such an interpretation would lead to absurdity which has according to the rules of interpretation, to be avoided.
" The enunciation of law in the above case fully covers the present case.
In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed from any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination.
In Brown vs State of Maryland(1), Chief Justice Marshall dealing with the word! 'importation ' said as follows : "The practice of most commercial nations conforms to this idea.
Duties, according to that practice, are charged on those articles only which are intended for sale or consump tion in the country.
Thus sea stores, goods imported and re exported in the same vessel, goods landed and carried over land for the purpose of being re exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties.
The whole course of legislation on the subject shows that in the opinion of the legislature the right to.
sell is connected with the payment of the duties.
" In Wilson vs Robertson(2) where section 33 of The 48 Geo. 3, c. civ. imposed a duty on all goods "imported into or exported from Berwick Harbour", and the harbour extend ed from Berwick Bridge down the Tweed to the sea, but not above the bridge and goods were brought up the river in a seagoing vessel which, having first used the Harbour Commis sioners ' rings and posts in order to moor the vessel while lowering the masts, passed through Berwick Bridge and un loaded her cargo about 200 yards above the bridge and beyond the limits of the harbour; it was held that these goods were not "imported into" ' the harbour and as such liable to duty.
Bearing in mind the above authoritative enunciation of law, we are ' of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to pay the octroi or what is styled as 'supervision fee '.
A contrary interpretation would make rail borne goods passing through the Railway Stations within the (1) ; L. Ed. 678, 686.
(2) 665 limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and depar ture therefrom which could not be the intention of the Legislature.
The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.
P.H.P. Appeal dismissed.
| IN-Abs | The respondent is a transporter.
The respondent lifts the iron ore in his trucks from Hubli Railway yard and carries it to Karwar and Belekeri harbours.
The trucks of the respondent have to pass in the course of transit through :he limits of various Town Municipalities situate on the highway of which the appellant happens to be one.
The respondent does not unload or re load the iron ore at any intermediary point or stop.
The appellant passed a resolu tion in purported exercise of section 124 of the Karnataka Munic ipalities Act, 1964 read with rule 26 of the.
Karnataka Municipalities Taxation Rules, 1965, imposing a fee of Re. 1/ per trip of each truck.
The respondent filed a writ petition challenging the levy of the fee.
The learned single Judge of the High Court dismissed the writ petition.
The Division Bench, however, allowed the appeal.
Dismissing the appeal by certificate, HELD: The present case is not covered by "any article or animal brought into the municipal limits for the purpose of immediate exportation" mentioned in section 124.
"Brought into" and "immediate exportation" do not comprehend within their sweep the continuous process of transit of goods by vehicles which merely use the State High Way passing through the areas which lie within the municipal limits.
In the instant case, the iron ore is carried in the trucks of the respond ent which merely pass through the areas which lie within the municipal limits and is not unloaded and reloaded at any place within the municipal areas.
The continuity or contin uous process of the carriage of iron ore is not in any way, in fact, broken within the municipal limits.
The respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with Rule 26 of the Rules and, as such, is not liable to pay octroi or what is styled as supervision fee.
A contrary interpretation would make rail borne goods passing through the Railway Station within the limits of the municipality liable to the imposi tion of the fee on their arrival at the Railway Station and departure therefrom which could not be the intention of the Legislature.
[662 G H, 664 B, G H, 665 A B] The Central India Spinning and Weaving and Manufactur ing Company Limited, the Empire Mills, Nagpur vs The Munic ipal Committee, Nagpur ; 1958 SC 352, fol lowed.
Brown vs State of Maryland ; , 442; ; , 686 and Wilson vs Robertson , quoted with approval.
|
Appeal No. 792 of 1975.
(Appeal by special heave from the judgment and order dated the 12th March, 1974 of the Orissa High Court in O.J.C. No. 336 of 1972) B. Sen, B. V. Desai and R.H. Dhebar, for the appellant.
Mrs. section Bhandare.
M.S.Narasimhan, A.K. Mathur and A. K. Sharma, for respondent No. 1.
S.K. Mehta, for Girish Chandra, for respondent No. 2.
Gobind Das, B. Parthasarthi for respondent No. 3.
704 The Judgment of the Court was delivered by BEG, J.
The appellant before us applied on 14th October, 1961, for a prospecting licence for an area of 833.53 acres in the requisite form 'B ', under rule 9(1) of the Mineral Concessions Rules, 1960, made under Section 13 of the (herein after referred to as the Act).
The application was filled in correctly.
But a sum of Rs. 24/ only, instead of Rs. 32/ , accompanied the application.
It appears that 'the appellant realised the mistake in calculating later and paid the deficit of Rs. 8/ on 28th December, 1961.
By way of abundant caution, he made a fresh application also on 26th February, 1962.
In the meantime, the respondent No. 1 had applied on 2nd November, 1961, for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied.
No orders were passed disposing of the application of the appellant within 90 days of the making of it.
The appel lant treated this omission to be tantamount to refusal of his application, as provided by rule 11 (1 ), and preferred a revision application before the Central Government under Section 30 of the Act.
On 20th October, 1964, the Central Government asked the State Government to consider the appli cation of the appellant dated 14th October, 1961, within the next nine months.
On 13th January, 1965, the State Govern ment offered the appellant a prospecting licence for an area of 365 acres.
On 12th February, 1965, the appellant moved the Central Government for revision of the order making the offer.
On 19th March, 1965, the Central Government in formed the appellant that his application was premature since neither nine months had elapsed nor final orders had been passed by the State Government.
On 9th May, 1965, the Central Government actually rejected the revision applica tion of the appellant presumably for reasons found in the above mentioned communication.
On 22nd June, 1965, the State Government directed the grant of a prospecting licence to respondent No. 1 for an area including 272.40 acres, in dispute.
On 7th July, 1965, the State Government again offered the appellant the grant of a licence for 3.65 acres.
On 2nd January, 1967, the High Court dismissed the Writ Petition of the appellant filed against the abovementioned order of the Central Government dated 9th May, 1965, reject ing his revision application.
On 2nd April, 1970, the State Government again offered the appellant a prospecting licence for an area of 365 acres.
On 30th April, 1970, a prospecting licence was actually executed in favour of respondent No. 1 for an area which included the disputed 272.40 acres.
The appellant 's objections before the Collec tor were rejected.
On 27th May, 1970, the appellant again filed a revision application before the; Central Government against the offer dated 2nd April, 1970, for the third time.
by the State Government of the smaller area of 365 acres.
On 23rd November, 1970.
the respondent No. 1, actually applied for a mining lease.
but, on 12th April, 1973, the Central Government accepted the appellant 's objec tion relating to 272.40 acres.
Hence.
the respondent No. 1 went to the High Court under Article 226 of the Constitu tion.
The High Court quashed the order of the Central Government by its order dated 12th March, 1974, on the ground that the original application of the 705 appellant, dated 14th October, 1961, not having been accom panied by the correct fee, was no application at all in the eye of law.
Hence on the view taken by the High Court, the appellant, not having complied with mandatory provisions, had not filed any application which could be accepted by the State Government.
The High Court took the view that the Central Government 's order dated 12th April, 1973, suffers from a patent error.
The appellant having obtained special leave to appeal, the case is now before us.
It has to be remembered that the special jurisdiction of the High Court under Article 226 had been invoked by the respondent.
The High Court had before it a very detailed statement of reasons for the order of the Central Government in exercise of its powers under Section 30 of the Act.
We have also been taken through these reasons contained in the letter dated 12th April, 1973, sent to the appellant.
It shows that both the parties between whom the dispute relat ing to 272.4.0 acres of land for grant of a prospecting licence had gone before the Central Government several times, and the matter was not finally decided by the State Government.
Even though the State Government may have, according to its own erroneous view disabled itself from granting a prospecting licence to the respondent in respect of disputed 272.40 acres, due to its decision to grant this area to the respondent, yet, as the letter from the Central Government points out, the prospecting licence of the re spondent who was impleaded in the revision proceedings before the Central Government and duly heard on all ques tions, was due to expire on 30th April, 1972.
After con sidering the legal position and all the facts and equities of the case, the Central Government correctly held, on the question law before it, that the appellants application before the State Government was a valid one as it had been entertained without objection even if it was not accompa nied, when flied, by the correct amount of fee.
In a communication sent, the Central Government stated its rea sons to the appellant as follows: "The question arises whether you were indeed or can indeed be deemed to be the prior application for the area.
It has been seen that your application dated 14.10.1961 was not perfect in the sense that fee paid into the treasury fell short of Rs. 8/ .
However, the State Government itself by giving a chance to you to rectify this mistake ac knowledged implicity that it had in its hands an application otherwise valid.
Therefore, the appropriate date which should be taken into consideration is 14.10.61 and not 28 12 1961, as interpreted by the State Gov ernment.
The State Government 's order permit ting you to make good the deficit in the amount of fees originally paid into the treas ury has nothing to do with the submission of the application which was done on 14.10.61.
The Stale Government could, if it so wished, have refused the application dated 14.10.61 as being imperfect.
But, since it did not do so and permitted the application to remain under consideration, it recognised your right as an applicant.
Therefore, the State Govern 706 ment cannot argue that impleaded party Phul chand Agarwal by submitting his application on 2.11.61 becomes a prior applicant".
In other words, the Central Government had, correctly in our opinion, relied upon an estoppel against the State Govern ment.
After giving the above mentioned reasons, the Cen tral Government considered it fair that the appellant should be.
granted a prospective licence in respect of 272.40 acres also over and above the 365 acres already granted to him by the State Government.
The operative part of the order passed by the Central Government is: "In the circumstances of the case, the Central Government, in exercise of their revisional powers under Rule 55 of of the Mineral Concessions Rules, 1960, and of all other powers enabling in this behalf, hereby set aside the order of the State Government contained in their letter No. II(E)M. 82/70 3015MG, dated 2.4.1970, and further direct the State Government to grant the overlapping of 272.40 acres to you over and above the area of 365 acres already granted to you." The only question which arises beforeus is whether the order of the Central Government suffers from an error appar ent upon the face of the record so as to furnish a ground for interference by the High Court on the purest of pure technicalities, which, as had been pointed out in the letter sent from the Central Government to the appellant, had ceased to matter.
The deficiency in the fees having been duly accepted on behalf of the State Government, it was bound to proceed on the assumption that there was a proper application before it valid from the date of filing it.
It was precluded, by its own dealings, from denying the validity of the application.
It is not very becoming for governmental authorities, when duties laid down by statutory rules.
have not been performed by them, to take shelter behind such technicality for denying a citizen 's rights to have his application considered and decided.
Rule 11 (1) of the Rules framed was a recognition of that right so that an applicant for a licence under the rules could approach the Central Government in case the State Government did not pass the required orders within a reasonable time.
The Central! Government had passed a very fair order after considering the matters ' before it.
We have been taken very laboriously through all the relevant provisions of the Act and the Rules to convince us that the High Court 's view was correct that there was an error apparent upon the face of the record in the view of the Central Government which the High Court had corrected in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.
We are unable to detect such on error on the part of the Central Government.
On the other hand, we find that the High Court itself committed an error, which seems to us to be very apparent, in holding that an applica tion which had only to be accompanied by the fee would be considered validly filed on the date on which, 707 it was made only if proper fee had been tendered with it when it was filed.
A right and reasonable procedure looks to substance rather than form of a transaction in order to determine its nature.
The statute and the rules made there under would have said so if the application itself was to be deemed to be void ab initio for non compliance with a par ticular technical requirement if that was the intention behind them.
All that we have here is the word 'shall ' used in Rule 9(2).
But, this Court has repeatedly held that the use of the word 'shall ' in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory.
Moreover, that question was only incidentally involved here.
It is not the breach of every mandatory duty in performing a prescribed act that could make an action total ly ineffective or void ab initio.
The filing of the appli cation is one thing and completion of some annexed duty, which is legally separable, is another unless a statute or a rule provides otherwise.
Rule 9 reads: "9 (2) Every such application shall be accom panied by (a) a fee calculated in accordance with the provisions of Schedule II; and (b) an income tax clearance certificate in Form C the from Income tax Officer concerned; and (c) a certificate of approval in Form A or if the certificate of approval has expired, a copy of application made to the State Govern ment for its renewal". ' It is not disputed that all the requirements of the rule, except that a properly calculated fee should have accompanied the application, were fulfilled.
Apparently, Rule 10 was also complied with and the application was ,duly received and acknowledged.
Rule 10 reads as follows: "10.
Acknowledgement of application . (1) Where an application for the grant or renewal of a prospecting licence is delivered personally, its receipt shall be acknowledged forthwith.
(2) Where such application is received by registered post, its receipt shall be acknowl edged on the same day.
(3) In any other case, the receipt of such application shall be acknowledged within three days of the receipt.
(4) The receipt of every such application shall be acknowledged in Form D.
The next rule provides: "11.
Disposal 0f application for the grant and renewal 0f prospecting licence. (1) An application for the grant of a prospecting licence shall be disposed of within nine months 11 112SCI/77 708 from the date of its receipt and, if it is not disposed of within that period, it shall be deemed to have been refused.
(2) An application for the grant or renewal of a prospecting licence shall be made at least ninety days be(ore the expiry of the prospect ing licence and shall be disposed of before the expiry of the licence and if the applica tion is not so disposed of within that period, it shall be deemed to have been refused.
(3) The State Government may, for reasons to be recorded in writing and communicated to the applicant, at the time of renewal, reduce the area applied for." Repeated offers of the State Government to the appellant show that it acknowledged the pendency of an application before it so that it offered a reduced area to him.
Again, the directions of the Central Government, asking the State Government to consider the application and giving nine months for it implied that there was an application to consider before the State Government.
The respondent did not question the validity of the Central Government 's order of 20.10.1964.
It seems futile to urge now that there was no application at all of the appellant for the State Gov ernment to consider.
Again, rule 13 provides: "13.
Refund of fee . (1) 'Where an application for the grant of a prospecting licence is refused or deemed to have been refused under these rules, the fee paid by the applicant shall be refunded to the applicant.
(2) Where an applicant for the grant of a prospecting licence dies before the order granting him a prospecting licence is passed, his application for the grant of a prospecting licence shall be deemed to have been rejected and the fee paid by him shall be refunded to his legal representative.
(3) In the case of an applicant in ,re spect of whom an order granting a prospecting licence is passed but who dies before the deed referred to in sub rule (1) of rule 15 is executed, the order shall be deemed to have been revoked on occurrence of the death and the fee paid shall be refunded to the legal representative of the deceased".
This rule also makes it clear that there is a distinction between an application and the fee which has to accompany it.
The fee can be refunded, but, the application made remains.
There is no rule whatsoever which rays that failure to submit the correct fee at the time of the filing of the application will make the 709 application void or invalid.
Section 19 of the Act, howev er, says clearly : "19. ' Any prospecting licence or mining lease granted, renewed or acquired in contra vention of the provisions of this Act or any rules or orders made thereunder shall be void and of no effect".
Hence, it is clear that the Act itself provides what is void and ineffective where that is the intention.
It would have been provided at least by the Rules that an application not accompanied by the correct fee is void if that had been the intention behind them.
Section 19 attaches voidness only to a grant made without due compliance with all rules.
It is nowhere said that the act of making an application will be similarly void for a breach of rules.
Another submission made before us is that the grant of a prospecting licence in favour of Phulchand, not having been set aside by the Central Government, the High Court had rightly interfered.
In view of the provisions of Section 19 of the Act the prospecting licence in favour of respondent No. 1 was itself void to the extent of an area of 272.40 acres for which a licence had already been properly applied for by the appellant.
Unless the appellant 's application had been properly refused, for a valid reason, he could not be denied the benefit of section 11 (2) of the Act.
Sec tion 11 (2) reads as follows: "11(2) Subject to the provisions of sub section where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the appli cant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was re ceived later.
" Reliance is placed on behalf of the respondent on the conditions for the grant of the licence contained in Rule 14 which does not govern the conditions for filing an applica tion at all.
It may be that a licence cannot be granted without making good the deficiency in fee which should accompany the application, but that does not mean that a bona fide application accompanied by an incorrectly calcu lated fee or a fee which is deficient by over sight, could not be made at all, or, if made, must be treated as void or of no effect whatsoever.
On this question, the view taken by the Central Government was, in our opinion, correct, just, and proper.
On such a view, it is not necessary to discuss any of the cases on the kind of error which could be corrected by the High Court as there was no error of any kind in the Central Government 's order for the High Court to be able to correct it.
On the other hand the error, which we consider necessary to correct, is in the High Court 's order.
Consequently, we set aside the judgment and order of the High Court and restore those of the Central Government.
The parties will bear their own costs.
S.R. Appeal allowed.
| IN-Abs | The appellant applied on 14 10 1961 for a prospecting licence for an area of 833.53 acres under rule 9(1) of the Mineral Concessions Rules, 1960.
The application was in order, in all respects, except to the extent that instead of Rs. 32/ , the fees payable, a sum of Rs. 24/ only was paid.
However, on realisation of this mistake, he paid the deficit of Rs. 8/ on 28 12 1961 and, by way of abundant caution, made a fresh application on_26 2 1962.
Respondent No. 1 had applied on 2 11 1961 for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied.
Since no orders were passed disposing of the applications of the appellant within 90 days of the making of it, the appellant filed a revision before the Central Government treating this omis sion on the part of the State to be tentamount to refusal of his application as provided by rule 11(1).
On 20 10~1964, the Central Government asked the State Government to con sider the application of the appellant dated 14 10 1961 within the next 9 months.
The State Government, instead of considering the application dated 14 10 1961 as directed, offered thrice, on 30 1 1965, 7 7 1965 and 2 4 1970, a prospecting licence for an area of 365 acres which was not accepted by him and his attempts by way of revision against these orders to the Central Government and a writ petition in the High Court failed.
The State Government, however, on 22 6 1965, directed the grant of a prospecting licence to respondent No. 1 for an area including 272.40 acres in dispute which was actually executed in his favour on 30 4 1970.
The appellant 's objection before the Collector against this was rejected.
On 12 4 1973, the Central Government accepted the objection relating to 272.40 acres and opined that his application dated 14 10 1961 was earlier in point of lime within the meaning of section 11(2) of the Mines & Minerals (Regulation and Development) Act, 1957.
Against this order the respondent No. 1 went to the High Court under article 226 of the Constitution.
The High Court quashed the orders of the Central Government, by its order dated 12 3 1974 and held the application of the appellant dated 14 10 1961 not having been accompanied by the correct fee was no application at all in the eye of law.
Accepting the appeal by special leave, the Court, HELD: (1) After considering legal position and all the facts and equities of the case, the Central Government correctly held, on the question of law before it, that the appellant 's application before the State Government was a valid one as it had been entertained without objection even if it was not accompanied, when filed, by the correct amount of fee.
[706 A, E] (2) The Central Government had correctly relied upon an estoppel against the State Government.
The deficiency in the fees having been duly accepted on behalf of the State Government, it was bound to proceed on the assumption that there was a proper application before it valid from the date of filing it.
The State Government was precluded by its own deeds from denying the validity of the application.
[706 A, E] 703 (3) There is no patent error upon the face of the record warranting a correction in exercise of its extraordinary jurisdiction under article 226 of the Constitution by the High Court in the instant case.
On the other hand, High Court itself committed an apparent error in holding that an appli cation which has only to be accompanied by the fee would be considered validly filed on the date on which it was filed only if proper fees has been tendered with it when it was filed.
[706 G H] (4) It is not very becoming for Governmental authorities when duties laid down by statutory rules having been per formed by them, to take shelter behind such technicalities for denying a citizen 's right to have his application con sidered and decided.
Rule 11(1) of the Rules framed was a recognition of that right so that an applicant for a licence under the Rules could approach the Central Government in case the State Government did not pass the required orders within a reasonable time.
[706 E F] (5) A right and reasonable procedure looks to substance rather than form of acts or transactions in order to deter mine their nature.
There is no rule whatsoever which says that failure to submit the correct fee at the time of the filing of the application will make the application void or invalid.
Rule 13 makes it clear, by differentiating between an application and the fee by which it has to be accompa nied.
The fee can be refunded but the application made remains.
The filing of the application is one thing and compliance of some annexed duty, which is legally separable, is another, unless a statute or a rule provides otherwise.
[707 A, C, 708 H 709 C] (6) It is clear from section 19 that the Act itself provides what is void and ineffective where that is the intention.
Section 19 attaches a voidness only to a grant made without due compliance.
with all rules.
It is nowhere said that the Act of making an application will be similarly void for breach of rules.
[709 B C] (7) In the instant case, in view of the provisions of section 19 of the Act, a prospecting licence in favour of respond ent No. 1 was itself void to the extent of an area of 272.40 acres for which, a licence had already been properly applied for by the appellant.
Unless the applicant 's application had been properly refused for a valid reason, he could not be denied the benefit of section 11(2) of the Act.
It may be that a licence cannot be granted without making good the deficiency in fee which should accompany the application, but that does nor mean that a bona fide application accompa nied by an incorrectly calculated fee or a fee which is deficient by oversight could not be made at all or if made must be treated as void or of no effect whatsoever.
[709 C G] (8) The use of the word "shall" in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory.
It is not the breach of every mandatory duty in performing a prescribed act that could make an action totally ineffective or void ab initio.
The meaning of the. word "shall" in Rule 9(2) of the Mineral Concessions Rules, 1960, was only incidentally involved here.
[707 B C]
|
Appeal No. 207 of 1975.
From the Judgment and Order dated the 19 4 74 of the Gujarat High Court in Special Civil Appln.
No. 306 of 1973.
S.T. Desai and Girish Chandra for the Appellants.
I. N. Shroff and H.S. Parihar for Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by certificate against the judgment and order dated 19 April 1974 of the High Court of Gujarat in Special Civil Application No. 306 of 1973.
The question for consideration in this.
appeal is wheth er the petitioner before the High Court, who was the Regis trar of the Small Causes Court, Ahmedabad was subject to the disciplinary jurisdiction of the High Court.
The Registrar was appointed on 12 September, 1969 by an order of the Governor of Gujarat.
The High Court said that in view of the fact that the High Court is not the appointing authority the High Court has no disciplinary jurisdiction over the Registrar.
The High Court was in error in considering that the question of appointing authority is relevant in regard to the disciplinary jurisdiction of the High Court.
Under Article 235 the control over district Courts and Courts subordinate thereto including the posting and promo tion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court.
The expression 'judicial service ' is defined in Article 236 to.
mean "a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge".
These two articles 235 and 236 are relevant for the purpose.
of ascertaining the extent of disciplinary juris diction of the High Court.
The Registrar of the Court of Small Causes is a person holding a civil judicial post inferior to the Post of district judge and is 'in Judicial service. ' Reference to the presidency Small Causes Courts Act 1882 is necessary to find out the powers, position and duties of the Registrar 712 of the Small Causes Court.
Section 13 of the Act states :.
"There shall be appointed an officer to be called the Regis trar of the Court who shall be chief ministerial officer of the Court".
The other provisions in the Act which deal with the Powers of the Registrar are to be found in Sections 9(1) 2(aa), 14, 33, 34, 35 and 36, which read as follows: "9(1) (aa).
The High Court may, from time to time, by rules having the force of law empow er the Registrar to hear and dispose of unde fended suits and interlocutory applications or matters.
14 The Provincial Government may invest the Registrar with the powers of a Judge under this Act for the trial of suits in which the amount or value of the subject matter does not exceed twenty rupees.
And subject to the orders of the Chief Judge, any Judge of the Small Cause Court may, whenever he thinks fit, transfer from his own file to the file of the Registrar any suit which the latter is competent to try.
33 Any non judicial or quasi judicial act which the Code of Civil Procedure as applied by this Act requires to be done by a Judge, and any act which may be done by a Commission er appointed to examine and adjust accounts under section 394 of that Code as so applied, may be done by the Registrar of the Small Cause Court or by such other officer of that Court as that Court may, from time to time, appoint in this behalf.
34 The suits cognizable by the Registrar under section 14 shall be heard and determined by him in like manner in all respects as a Judge of the Court might hear and determine.
the same.
35 The Registrar may receive applications for the execution of decrees of any value passed by the Court, and may commit and dis charge judgment debtors, and make any order in respect thereof which a Judge of the Court might make under this Act.
36 Every decree and order made by the Regis trar in any suit or proceeding shall be sub ject to the same provisions in regard to new trial as if made by a Judge of the Court.
" These provisions of the Act indicate in No. uncertain manner that the Registrar of a Small Causes Court exercises judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar.
Counsel for the appellant is right in his contention that the Registrar, Small Causes Court, inasmuch as he exercises judicial functions, is a judicial officer in Judicial Service and comes within the scope and intent of Articles 235 and 236.
713 The High Court was in error in holding 'that the High Court had no power to order disciplinary proceedings.
It is significant that the High Court abdicated its own discipli nary jurisdiction.
The independence of the judiciary has been emphasised by this Court in un mistakable terms in the following two decisions: 1.
High Court of Punjab & Haryana etc.
vs State of Haryana & Ors., reported in ; and 2.
Shamsher Singh & Anr.
vs State of Punjab, reported in 1975 (1) S.C.R.814.
The Gujarat High Court like other High Courts is compe tent to enquire into such disciplinary matters.
In the present appeal there were five contentions before the High Court on behalf 0f the Registrar.
The first contention falls in view of our conclusion that the High Court is the competent authority to hold departmental en quiry.
The second contention of the Registrar was that the High Court had no authority to direct further inquiry to be made in respect of recording the statement of Bhatt or to consider the reports made by the inquiry officer and come to a conclusion about the guilt of the Registrar.
The third contention of the Registrar was that the direction of the High Court that the statement of Bhatt be recorded was passed without hearing the Registrar and was violative of the rule of natural justice.
It will appear that the High Court issued directions and the statement of Bhatt was recorded by the Inquiry Officer.
Bhatt is a Lawyer.
He was busy in Court.
He could not appear before the Inquiry officer on the date fixed for taking his evidence.
The High Court asked the Inquiry Officer to record the evidence of Bhatt.
The Registrar was given a copy of the statement of Bhatt after recording of Bhatt 's evidence.
The Registrar was given an opportunity to deal with the evidence of Bhatt.
It is idle to contend that the Registrar ought to have been heard before the High Court directed that the statement of Bhatt should be recorded.
The fourth contention of the Registrar was that there was failure to give copies of documents demanded by him; therefore he did not have reasonable opportunity to defend himself.
The High Court did not go into this question in view of the fact that the High Court did not consider this question.
Counsel for the Registrar submitted that he wanted to address the Court on the materials which were not available now.
We are of opinion that the matter should be remitted to the High Court only on this question viz 'fail ure to give copies of certain documents demanded by the Registrar thus depriving him of a resonable opportunity to defend himself and therefore, the inquiry was contrary to the provisions of Article 311 of the Constitution '.
The fifth contention that the impugned order was passed by the Government without consulting the Public Service Commission does not survive in view of our conclusion that the High Court is the competent authority to make departmen tal inquiry.
714 For the foregoing reasons the judgment of the High Court is set aside and the matter is remitted to the High Court for consideration only of the fourth question as indicated above.
Parties will pay and bear their own costs.
S.R. Appeal allowed and case remitted.
| IN-Abs | Pursuant to the departmental enquiry conducted by the High Court and on its recommendation, the Gujarat Governor dismissed the respondent from the service of Registrar, Small Causes Court, Ahmedabad.
The respondent challenged by way of a writ the said order contending: (1) The High Court was not his appointing authority and he being the member of general State service, the High Court has no authority to initiate proceedings, the appointment of the enquiry offi cer, framing of charges of misconduct and taking discipli nary proceedings etc.
(2) The High Court has no authority to direct further enquiry to be made in respect of recording the statement of one Mr. Bhatt, an advocate or to consider the reports made by the enquiry officer and come to the conclusion about his guilt or to issue show cause notice of punishment.
(3) The direction of the High Court that the statement 0f Mr. Bhatt is recorded was passed without hear ing the petitioner and this violated the rules of natural justice.
(4) The failure to give copies of certain documents demanded by the petitioner deprived him of a reasonable opportunity to defend himself and, therefore, the enquiry was contrary to the provisions of article 311 of the Constitu tion; and (5) .The impugned order was passed by the Govern ment without consulting the Public Service Commission and the same was illegal and bad in law.
The High Court held: (1 ) The post of the Registrar of Small Causes Court does not fall within the expression "judicial service" within the meaning of article 235 and (2) The High Court has no disciplinary jurisdiction over the Registrar in view of the fact that the High Court is not the "appointing authority".
Accepting the State 's appeal by certificate and remitting the case, the Court, HELD: (1 ) The Registrar of the Court of .Small Causes is a person holding a civil judicial post inferior to the post of District Judge and he is in judicial service.
Sections 9(1), 13 14, 33 to 36 of the indicate in no uncertain manner that the Registrar of Small Causes Court exercises judicial powers, Inasmuch as the Registrar Small Causes Court exer cises his judicial function, he is a judicial officer in judicial service and comes within the scope and intent of article 235 and 236.
[711 H, 712 G H] (2) The High Court was in error in considering the question of "appointing authority" as relevant in regard to the disciplinary jurisdiction of the High Court and also in holding that it had no power to order disciplinary proceed ings.
The High Court abdicated its own disciplinary juris diction.
The High Court is the competent authority to hold departmental enquiries.
[711 D E, 713 A C].
High Court of Punjab & Haryana etc.
vs State of Haryana and Ors.
; and Shamsher Singh & Anr.
vs State of Punjab ; , referred to.
711 (3) In the instant case the enquiry was contrary to the provisions of article 311 of the Constitution due to the fail ure to give copies of certain documents demanded by the Registrar, thus deprived him of a reasonable opportunity to defend himself.
[713 G]
|
Appeal No. 1117(NCM) of 1976.
(From the Judgment dated the 25.7.1975 of the Monopolies & Restrictive Trade Practices Commissioner New Delhi in R.T.P.E. No. 1 of 1974) N.A. Palkhivala, F.S. Nariman, Ashok H. Desai, Ravinder Narain, B. Dadachanji, O.C. Mathur, section Swarup, Talat Ansari, Shri Narain, John and D.N. Mishra, for the Appellant.
Lal Narain Sinha, Mrs. Shayamla Pappu, G.A. Shah, R.N. Sachthey, Girish Chandra and B.B. Sawhney, for the Respond ent.
R. Narain, J B. Dadachanji, O.C. Mathur, section Swarup, Talat Ansari, Interveners for M/s. Hindust*an Livers Ltd., Ashok Leyland Ltd. Escorts Ltd. K. J. John, for M/s. Hindustan Livers Ltd. Anil B. Divan, R. Narain, LB.
Dadachani, O.C. Mathur, section Swarup, Talat Ansari, section Narain, Interveners for CIBA Geigy of India Ltd. Ashok, M. Desai R. Narain J.
B. Dadachanji, O.C. Mathur, Talat Ansari, section Swarup & D.N. Mishra, Interveners for Batliboi & Co. (P) Ltd. The Judgment of the Court was delivered by RAY, C.J. This appeal is under Section 55 of the Monop olies and RestrictiveTrade Practices Act, 1969 (referred to as the Act) against 688 the judgment and order of the Monopolies and Restrictive Trade Practices Commission (referred to as the Commission) dated 25 July, 1975.
The principal question for consideration in this appeal is whether the agreement between the appellant referred to as Telco and its dealers allocating territories to its deal ers within which only the dealers can sell bus and truck chassis referred to as the vehicles produced by the company constitute a "restrictive trade practice".
Section 2(o) of the Act defines "restrictive trade prac tice" to be a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner and in particular (i) which tends to obstruct the flow of capital or resources into the stream of produc tion or (ii) which tends to bring about manipulation of prices, or conditions or delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.
Section 33 of the Act provides that any agreement relat ing to a restrictive trade practice falling within one or more of the categories (a) to (1) specified in sub 2section(1) thereof shall be subject to registration.
Section 37 of the Act provides that the Commission may enquire into any restrictive trade practice, whether the agreement, if any, relating thereto has been registered under Section 35 or not which may come before its enquiry, and if, after such enquiry it is of opinion that the prac tice is prejudicial to the public interest the Commission may, by order direct that (a) the practice shall be discon tinued or shall not be repeated; (b) the agreement relating thereto shall be void in respect of such restrictive trade practice or shall stand modified in respect thereof in such manner as may be specified in the order.
Section 38 of the Act provides that a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the Commission is satisfied of any one or more circumstances mentioned in that section.
The circum stances mentioned inter alia are these.
The restriction is reasonably necessary having regard to the character of the goods to which it applies to protect the public against injury in connection with the consumption, or installation or use of these goods.
The removal of the restriction would deny to the public.
as purchasers, consumers or users of any goods, other specific and substantial benefits or advantages enjoyed or likely to be enjoyed by them as such, whether by virtue of the restriction itself or of any arrangements for operations resulting therefrom.
The restriction is reasona bly necessary to counteract measure taken by any one person not party to the agreement with a view to preventing or restricting competition in or in relation to the trade or business in which the persons thereto are engaged.
The restriction is reasonably required for purposes in connec tion with the maintenance of any other restriction accepted by the parties whether under the same 'agreement or ' 689 under any other agreement between them, being a restriction which is found by the Commission not to be contrary to the public interest upon other grounds other than specified in this paragraph.
The restriction does not directly or indirectly restrict or discourage competition to any materi al degree in any relevant trade or industry and is not likely to do so.
The Commission is also to be satisfied that the restriction is reasonable having regard to the balance between the circumstances and any detriment to the public or to persons not parties to the agreement being purchas ers, consumers or users of goods produced or sold by such parties or persons engaged or seeking to become engaged in the trade or business of selling such goods or of producing or selling similar goods resulting or likely to result from the operations of restriction.
The expressions purchasers, consumers and users include persons purchasing, consuming or using for the purpose or in course of trade or business or for public purposes.
Section 38 of the Act is described in the phraseology of restrictive trade practices as providing "gateways" to trade.
The essence of the section is that when it is found by the Commission that such restrictions are necessary or justified in the circumstances mentioned in the section restrictions are permitted.
Again the balancing clause after clause (h) in section 38 of the Act, indicates when the restriction is not unreasonable having regard to the balance between the circumstances mentioned in the section and detriment to the public resulting from the operation of the restriction.
Telco is a public limited company and is a leading manufacturer of heavy and medium commercial vehicles.
The capital investment required for a new factory in this trade is of a high order.
At present there are only four princi pal manufacturers of commercial vehicles.
These are The Hindustan Motors Ltd., Premier Automobiles Ltd. and Ashok Leyland Ltd. and Telco.
The supply of commercial vehicles is said to be below the demand.
The scarcity of supply is particularly accentu ated in the case of Telco 's vehicles as they are in great demand all over the country and abroad.
The export of Telco was over 80% of the total exports of commercial vehicles from the country during the year 1974 75.
The marked consumer preference for Telco 's vehicles has been maintained because of the high quality if its products and also because of elaborate and comprehensive net work of after sales service provided by Telco 's dealers.
Telco has of its own initiative introduced.
certain procedures for a fair and wide geographical distribution of its vehicles which seek to ensure that the new vehicles are supplied not only to the urban areas of the country where there is a high demand ' but also to the remote areas such as Tripura, Naga land, Himachal Pradesh etc.
Telco has notified to its dealers the maximum price for each model of vehicle which they could charge to consumers.
In May, 1972 Telco intro duced a procedure to regulate the booking of 690 orders by its dealers and effecting the delivery of vehicles against such orders with a view to ensuring distribution of its vehicles in the chronological order in which orders had been registered with the dealers.
When Telco sells vehicles it has the responsibility of providing facilities for servicing and repairing the vehi cles marketed by it.
It is essential that in the interest of the consumers such facilities are widely distributed throughout the country.
Even in remote areas where the demand of new vehicles is less, it is necessary to provide facilities for after sales service in order to enable the owners of the vehicles to keep them in operation.
These facilities are provided by Telco through all India net work of 68 dealers, 69 service centres of sub dealers and 13 zonal offices of Telco.
Each dealer has to maintain premises for a show room and ' a service station and to keep special tools as welt as a comprehensive range of spare parts supplied by Telco.
Further a dealer has also to employ technically qualified personnel some of whom have been trained by Telco in its Apprentice School at Jamshedpur.
In addition Telco maintains its own staff of trained engineers and mobile vans in each of its zonal offices.
The Registrar, Restrictive Trade Agreements made an application under Section 10(a) (iii) of this Act before the Commission for enquiry under Section 37 of the Act into restrictive trade practices alleged therein.
The allega tions in the petition were these.
Clauses (1) and (3) of the agreement between Telco and its dealers provide for territo rial restriction or allocation of area or market and clauses 6 and 13 provide for resale price maintenance and clause 14 provides for exclusive dealership.
The Registrar submitted that Clauses 1, 3, 6 and 14 show that the company is in dulging in restrictive trade practices inter alia relating to allotment of territories/areas among its dealers and exclusive dealings and Telco is not willing to abandon the restrictive trade practices.
It is significant to notice that no 'particulars of such alleged restrictive trade practices were set out in the application.
Clauses 1, 3, 6 and 14 in so far as they are appropriate to the present appeal are as follows : "1.
(a) The Dealer agrees to buy from the Regional Sales Office of the Company regularly from time to time on principal to principal basis all such new Tata diesel truck and bus chassis with or without cab and/or body (hereinafter referred to as "the said vehi cles", for resale within the territory de scribed hereunder (hereinafter called "the said territory") in accordence with the provisions of this.
Agreement.
(b) This Agreement shall not preclude the Company from entering into or continuing any dealership agreement or agreements with any other person or persons within the said terri tory for sale of the said vehicles and resale by 691 that person thereof in the said territory, this Agreement with the Dealer does not con stitute him a selling agent of the Company in the said territory, much less a sole selling agent.
The Dealer shah not, either directly or indirectly and.
either alone or in conjunction with others, promote the sale of or sell any of the said vehicles to any person or party outside the said territory, nor shall ' he sell the same to any person within the said terri tory if the said vehicles are intended to be used outside the said territory.
(a) The Dealer shaH, at his own expense, maintain within the said territory such organ isation for the sale of the said vehicles as may, in the opinion of the Company which shall be binding, be deemed to be necessary to adequately cover the said territory and ensure the best possible results.
Except with the written permission of the Company first obtained, the Dealer shall not during the pendency of this Agreement either directly or indirectly engage in or promote the sale of or use, handle or sell any truck or bus chassis, which is not manufactured or supplied by the Company.
" Telco denied that any of the alleged clauses amounted to restrictive trade practices.
Telco submitted as follows: First, though alleged clauses imposed restrictions on the dealers these did not amount to restrictive trade prac tices within the meaning of the Act.
Second, Clauses 1 and 3 which deal with certain defined territories allocated to the dealers are intended to avoid unequal and unfair distribution of the vehicles among the customers.
Third, any restriction as to maximunm price at which goods can be resold to the Telco 's dealers particularly when Clause 6 (1) (ii) specifies what is implicit therein, namely, that the dealer may sell below the maximum price fixed by Telco cannot possibly amount to restrictive trade practice.
Fourth, Clause 14 which prohibits a distributor from dealing in products of other manufacturers would normally not be restrictive trade practice unless there are special circumstances which exist and indicate that the agreement has the effect of preventing, distorting or restricting competition.
Telco finally submits that none of the restrictions imposed in Clauses 1,3,6, and 14 are unreasonable having regard to the balance between the circumstances set out in section 38 of the Act and any alleged detriment to the customers of Telco and or the competitors of Telco allegedly resulting or likely to result from the operation of these restrictions.
10 112SC1/77 692 The Commission held that the moment an agreement con tained a trade practice falling within any of the clauses in Section 33(1) of the Act, the trade practice must be regard ed as a restrictive trade practice.
The Commission held that all the clauses alleged in the petition of the Regis trar amounted to restrictive trade practices.
The Commis sion further said that in regard to Clauses 6 and 13 in the light of the assurance given by Telco that in its future price lists it would specifically state that the dealer is free to charge on the resale of Telco 's vehicles, prices lower than the maximum prices fixed by Telco, no order was required to be passed regarding the alleged practice of maintenance of minimum resale prices.
The Commission further held that although the contractu al term that the dealers, could deal only in Telco 's vehi cles was a restrictive trade practice, it was not against public interest as it fell within subclauses (a), (b) and.
(h) and the balancing clause of Section 38(1) of the Act.
The Commisssion however held that the practice of allo cation of territories to Telco 's dealers was not justified.
In the result the Commission declared that Clauses 1 and 3 of the Agreements in so far as they related to allocation of any territory or area or market to any of the dealers for the distribution of the vehicles constituted restrictive trade practice and, therefore, void and restrained Telco from continuing or repeating the practice.
Before the Commission Telco contended that the applica tion of the Registrar was not in accordance with Regulation 55 of the Monopolies and Restrictive Trade Practices .Com mission Regulations, 1974, referred to as Regulations.
Under the Regulations an application under section 10(a)(iii) of the Act must contain facts which, in the Registrar 's opinion, constitute a restrictive trade practice and, if it is in relation to any agreement, set out, such portions of the agreement as may be necessary to bring out the facts complained of.
It has to be stated that in the present case Telco is right in contending that beyond making mere references to clauses of the agreement and bald allegations that the clauses constitute restrictive trade practice, no facts or features are set out in the petition to show or establish as to how the alleged clauses consti tute restrictive trade practice in the context of facts.
The Solicitor General contended as follows.
First, the definition of restrictive trade practice includes all trade practices permissible or forbidden provided they restrict competition or even tend to restrict competition.
The instances set forth in the definition of restrictive trade practice emphasize the factors which go to establish a restrictive trade practice.
Clauses (i) and (ii) in Section 2(0) of the Act afford graver instances of restrictive trade practice.
Second, Section 33 of the Act requires an agreement falling within the Clauses thereof to be registered.
In short an agreement which amounts to a restrictive trade practice will be first registered and then 693 an enquiry will be made under Chapter VI of the Act as to whether the restrictive trade practice is prejudicial to the public interest.
Irrespective of the injurious or beneficial consequence of a trade practice which restricts or may restrict competition, it may fall within the defini tion.
Injurious or beneficial result of the restriction is relevant only for purposes of Sections 37 and 38 of the Act.
Section 33 of the Act states that any agreement relat ing to a restrictive trade practice falling within one or more of the categories mentioned therein shall be subject to registration in accordance with the provisions of Chapter V of the Act.
Clauses (a) and (d) in subsection (1 ) of Section 33 are relevant in the present case.
These are, inter alia, (a) any agreement which restricts or is likely to restrict by any method the persons or clauses of persons to whom goods are sold or from whom goods 'are bought and (d) any agreement to purchase or sell goods or to tender for the sale or purchase of goods only at prices or on terms or conditions agreed upon between the sellers or purchasers.
The definition of restrictive trade practice is an exhaustive and not an inclusive one.
The decision whether trade practice is restrictive or not has to be arrived at by applying the rule of reason and not on that doctrine that any restriction as to area or price will per se be a re strictive trade practice.
Every trade agreement restrains or binds persons or places or prices.
The question is whether the restraint is such as regulates and thereby promotes competition or whether it is such as may suppress or even destroy competition.
To determine this question three matters are to be considered.
First, what facts are peculiar to the business to which the restraint is applied.
Second, what was the condition before and after the re straint is imposed.
Third ' what is the nature of the re straint and what is its actual and! probable effect.
Section 33(1) of the Act deals with registration of certain types of restrictive trade practices which have the subject matter described in categories mentioned in clauses (a) to (1) of Section 33(1) of the Act.
An agreement will be registrable, when it will have both the effect of re stricting competition within the meaning of Section 2(0) of the Act and also deal with the subject matter described in Clauses, (a) to (1) of sub section (1) of Section 33 of the Act. 'Clauses (a) to (1) aforesaid describe some species of agreement which require registration.
if they .are within the genus of restrictive trade practice defined in Section 2(0) of the Act.
A practice which is not restrictive under section 2 (0) of the Act cannot be restrictive trade prac tice only because 0f Clauses (a) to (1) of sub section (1) of Section 33 of the Act.
Section 33 does not provide statutory illustrations to Section 2(0) of the Act but only enumerates some types of trade practices which.
if they are restrictive within Section 2(0) of the Act require registra tion.
Section 33 fixes categories of restrictive trade prac tices.
Section 33 states that any agreement relating to a restrictive trade practice falling within one or more of the categories mentioned therein shall 694 be subject to registration.
Therefore, before an agreement becomes registrable it has to be a restrictive trade prac tice in accordance with the definition of Section 2(0) of the Act.
At the threshold it has to be found out whether an agreement constitutes a restrictive trade practice.
In Section 33 it is stated, for example, that any agreement which restricts, or is likely to restrict, by any method the persons or clauses of persons to whom goods are sold or from whom goods are bought is one of the categories of a regis trable restrictive trade practice.
In the present case it has to be found out first whether the agreement of exclusive dealership between Telco and the dealers containing the restriction on the dealer not to sell the commercial vehi cles of Telco in other territories falls within the vice: of a restrictive trade practice.
Under the Act, action can be taken against a restric tive.
trade practice.
Therefore, when the authorities under the Act want to challenge any agreement or any prac tice as a restrictive trade, practice, it has t0 be estab lished that it is a restrictive trade practice within the definition of the Act.
If it is found to.
be a restrictive trade practice, the next stage is to register agreements relating to a restrictive trade practice.
Section 33 states that any agreement relating to a restrictive trade practice failing within one or more of the categories mentioned.
therein shall be subject to registration.
The authorities have to examine the agreement and find out whether it fails within the vice of a restrictive trade practice before the authorities can ask that the agreement be registered under Chapter V of the Act.
It is only after an agreement has been registered that there is an enquiry under Chapter VI of the Act.
This enquiry under Section 37 0f the Act is to find out whether a restrictive trade practice is prejudicial to the public interest.
Section 38 of the Act lays down the circumstances under which a restrictive trade practice is presumed to be in the public interest and not to be deemed to be prejudi cial to the public interest.
In the present case the question is whether the dealer ship agreement between Telco and the dealers whereby the dealers are not permitted to sell the commercial vehicles outside their zones amounts to a restrictive trade practice.
The questions posed are: Does it prevent distort or restrict competition in any manner; Does it affect the flow of sup plies in the market relating to goods or service in such manner as to impose on the consumers unjustified costs or restrictions.
The evidence about the features of the trade is this.
The medium, and heavy vehicles in the trade are restricted to those licensed by Government for manufacture in the country.
The capital investment required for a new factory is of a very high order, namely, almost Rs. 100 crores.
At present the only manufacturers of commercial vehicles are Telco which produces Tats Vehicles, Hindustan Motors Ltd., which produces Hindustan Vehicles, Premier Automobiles, which produces Premier Vehicles and Ashok Leyland Ltd., which produces Leyland vehicles.
The supply of commercial vehicles is far below 695 the requirement of the industry.
The gap between the demand and the supply is increasing with the passage of time as the trade is developing at a faster pace than the growth in the number of vehicles produced.
The Government of India esti mated during the year 1974 75 the production of 56,300 ' medium and heavy vehicles.
The production, however, is now likely to be of the order of 35,000.
The Fifth Five Year Plan for the production is said to be increased to 80,1.0,0.
It is said that against this target the installation capaci ty today is 46,300 vehicles.
Even if the expansion pro gramme is fully implemented the installed capacity by the end of the Fifth Five Year Plan will be only 66,975 vehicles per year.
The scarcity which is a feature of this trade is accen tuated in the case of Telco 's vehicles because they are in great demand all over the country and even in the export market. ]n 1974.
it is said that Telco exported vehicles amounting to 86% of the total export from the country.
The export earnings are said to be Rs. 7.29 crores for 1101 vehicles.
At the time of arguments it was suggested that Telco exports now vehicles worth Rs. 10 crores.
The clauses relating to territorial restriction in the present case do not constitute restrictive trade practice for the following reasons: The domestic market in India is spread over this vast sub continent with very divers conditions of roads, popula tion and demand.
It is essential for the community, the consumer and the manufacturer to have an equitable geograph ical distribution of his vehicles.
Vehicles may be required for operation in any part of India and public interest requires that the channels of communication should be open throughout the country.
These vehicles should ply even in the remotest areas like Ladakh, Nagaland, etc.
A user of Telco vehicles expects to get all over the country the service of a high standard enjoined by Telco upon its dealers.
Telco on its part also needs a country wide network of dealers so that sales take place and the dealers can maintain the service stations, spare part stocks and workshops with the requisite equipment, machinery and trained personnel all over the country.
This also enables the consumers to rely on Telco 's vehicles since they in turn can expect services, repairs and spare parts all over India.
Telco has thus to ensure an all India network of dealers, including those which will serve remote areas.
It is evidence that commercial vehicles is a highly complex mechanical product.
When Telco sells a vehicle it also.
has a responsibility that the vehicle is kept running and maintained in the optimum condition Telco must preserve its reputation and ensure that the vehicles are only sold by dealers who have the requisite facilities and organisation to give the proper after sales service.
Unlike most consum er products, a commercial vehicle involves a continuous relationship between a dealer and a consumer.
The consumer looks to the dealer, for keeping the vehicle running and for all attendent facilities like 696 service stations, workshops and spare parts.
Reliability and repair of a vehicle, which represents a substantial invest ment for the consumer, is vital also to the public as a whole and there must be constantly available throughout the country a network of dealers with adequate repair and main tenance service.
Even before the delivery of a commercial vehicle to the consumer, there is a meticulous pre delivery inspection and service by the dealer.
After delivery, Telco gives three free services.
Telco also gives a war ranty for a period of six months from the date of registra tion or 12 months from the date of delivery of vehicle from the factory or for a period in which the vehicle has run for a distance of 32,0.00 kilometers, whichever expires earlier.
There are outstanding distinctions between a car dealer and a commercial vehicle dealer.
The peculiar characteris tics of dealers ' in commercial vehicles are these:The pur chase of a car in India rarely represents the substantial or the bulk of the investment of a purchaser.
The purchase of a commercial vehicle, however, represents the substantial and often the only capital investment of the owner.
A chassis manufactured by Telco is sold to the customer at almost a lakh of rupees and the body costs him about Rs. 15,000/ for a truck and about Rs. 40,000/ for a bus.
Over 80% of per sons owning trucks are individual owners having not more than two trucks and mostly only one truck.
The vehicle is normally constantly on the road and is put to the maximum possible use with often more than one driver plying it.
Thus a vehicle plies on an average over a lakh of kilometers per year.
The heavy investment also makes it necessary that a vehicle should be constantly on the move.
The owner can ill afford to waste time and requires easily accessible and prompt Service Stations, Workshops and stocks of spares.
The purchaser regards the .truck as a life time investment.
The purchaser looks to the dealer for prompt after sales service and repairs.
Since 80% of truck operators are individual operators and often have scant mechanical knowl edge, they have to depend upon the dealer for keeping the truck moving with the necessary trained personnel, work shop, service stations and stocks of spares.
As a result of these characteristics, the relationship between a dealer and the truck purchaser is much more constant than with the car purchaser.
The standard of service he expects is more vigorous and prompt.
Vehicles of Telco are in keen demand, both because of their quality as also because of the assurance of efficient after sales service, by the network of Telco dealers.
These requirements cannot be met unless there is a network of dealers with specific territories.
It is essential from the angle of the consumer, Telco and the public that there should be widest and equitable geographical distribution of the vehicles of Telco.
Public interest itself requires that the vehicles should not be concentrated in metro centres or urban areas where there is a high demand for them, to the determent of the remote, areas or sami urban areas.
The consumer also plies trucks all over the country and expects that where ever he goes, whether to Kerala or Assam, there should be a dealer, a service station, a workshop, trained personnel and spare parts which can attend to Telco trucks.
697 Urban area centres like Bombay, Delhi and Calcutta, have a very large demand as compared to the rest of the country.
But at the same time Telco.
has to ensure sales in places like Kashmir, Nagaland.
and Tripura, where the demand is much less.
In fact, in some of these areas, there are no alternative means of communication and transport like rail ways and the life of the community is largely dependent upon road transport.
Even where the demand is less, there has to be a dealer with the necessary facilities and organisation for after sales service Telco appoints dealers.
for different territories in India.
The geographical network is natural to the industry itself.
The purchaser will purchase and get his vehicle serviced in his own territory.
The purchaser looks to a dealer in his own territory with whom he has relationship and who will give him credit facilities, who will render after sales service and from whom he can purchase spares, who will handle warranty claims and with 'whOm he can have constant relationship for purchases in future.
Unless a 'dealer is assured of customers in his own area and zones; he will not have the necessary incentive to maintain the optimum level of service stations, workshops and spare part stocks, nor can the dealer plan his resources including technical personnel, capital equipment and financial resources for his future commitment.
Telco regards after sales service of crucial importance to serve its consumers.
It is natural and cheaper for a purchaser to buy and service his vehicles in his own terri tory.
After sales service of Telco is fairly elaborate and complex and it is because of the standard of this service that Telco has been 'able to maintain the reputation.
Each, dealer is required to provide one premises for show room, service station, workshop, spare parts, shop, canteen and also (a) rest house for drivers; (b) equipment and machinery for maintenance and repairs; (c) set or sets of special tools specially designed for carrying out repairs to Telco 's vehicle; (d) Technical personnel including person nel trained by the appellant at its factory in Jamshedpur and.
(e) adequate stock of spare parts to meet the potential demand in the territory.
Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jul lunder and Jaipur.
If the territorial restriction is re moved, there will be a tendency for persons to book orders in areas thus starving the consumers of that area of their equitable share and disrupting the flow of vehicles in both areas.
This will create pockets of artificial scarcity and dislocate the network.
If the dealer is not assured of a steady demand in his territory, he may have no incentive or may not find it economic to organise proper after sales service.
This would also result in dealers diverting their supplies to metro centres starving the semi urban and rural areas.
Network of dealers and service stations has a direct relation with the territorial assurances given to each dealer.
It is as a result of such assurances that a dealer is able to maintain the whole chain of dealership network, service stations, stocks of spare parts, trained per 698 sonnel, equipment, special tool kits and given the optimum service as laid down by Telco to its vehicles.
Some of the dealers have even maintained mobile service vans.
The dealer has to invest a large amount in providing all these facilities.
The dealer is familiar with his territory and in view of the potential sales, takes steps to improve his organisation.
If these clauses are omitted, the dealer would not make investment and would neglect the service facilities to the detriment of the consumer.
In the light of scarcity in the supply of vehicle 's and the need to distribute Vehicles to all the dealers in India, Telco makes equitable distribution of its products by taking into account these factors: (a) Population of commercial vehicles in the dealer 's territory; (b) Orders from customers pending with the dealer; (c) Preference for Tata diesel vehicles as against other makes in the territory of the dealer (d) Past sales performance of the dealer; (e) Effective after sales service provided by the dealers; (f) Special requirements of the territory during the erection of Government Projects such as steel plants, construction of dams etc.
; (g) Emergency requirements of the territory on account of drought, flood relief etc; (h) Government recom mendations for meeting certain specific requirements; (i) Dependence of the particular territory on road transport and (j) Requirements of State Government and nationalised trans port undertakings which are procured through dealers.
The demand for the vehicles has always exceeded the supply making it imperative for Telco to ensure equitable distribution of the vehicles to the various parts of the country.
There are many commercial agreements under which the territories are divided among distributors and 'such agreements do not constitute restrictive trade practice, where the whole object is to ensure fair, efficient and even distribution particularly of a commodity which is in short supply and in great demand.
If these were not done and it was permitted for one dealer to encroach on the territory of another this would affect the flow of vehicles into the market leaving some territories unsupplied.
In order to prevent this undesirable position that dealers were appointed for different territories and care was taken consistently to see that all parts of the country are treat ed equally and fairly.
The exclusive dealings do not impede competition but promote it.
Such dealings lead to specialisation and im provement in after sales service.
The exclusive dealership agreements do not restrict distribution in any area or prevent competition.
The customer has the choice of buying any make he likes.
The advantage of exclusive dealership is that a dealer specialises in his own type of vehicle with all the attending advantages of trained personnel, special service stations, workshops and spare parts.
Each set of special tools costs approximately Rs. 55,000.
The set is suitable for servicing one vehicle at a time.
Some dealers like the United Motors Pvt. Ltd., Bombay have four sets at Colaba, Wadi Bunder, Jogeshwari and Chembur.
The invest ment of United Motors is approximately Rs. 24 lakhs.
It is estimated that one service station with special tools of Telco and workshop equipment will cost as much as Rupees five lakhs.
699 It is by specialising in each make of vehicle and pro viding the best possible service that the competition between the various makes is enhanced.
It is practically not possible for the same dealer to have parallel lines of service stations, workshops, spare parts, trained personnel for different makes.
It is also not practical for the dealer to maintain different and competitive standards laid down by different companies which may differ from manufac turer to manufacturer.
If a dealer has more than one fran chise, the competition between the various makes will be reduced.
It will be difficult for the manufacturer to make the dealer responsible for his make and concentrate on it.
There may be conflicts between his responsibility for after sales service.
Telco commenced appointing dealers in 1954.
At that time 25 or 26 dealer 's were appointed.
The number increased to 68.
There are also sub dealers.
Each dealer is required to make a security deposit varying from Rs. 1 lakh to Rs. 6 lakhs.
Telco pays interest ,on deposits and security depos its.
A dealer has to invest a minimum of Rs. 5 lakhs in his establishment.
The range of investment would vary from Rs. 5 lakhs to Rs. 50 lakhs depending upon the largeness of the place.
Dealer Apprentices are trained by Telco in its factory at Jamshedpur.
Telco also trains Trade Apprentices.
The dealer also pays the apprentice stipend.
If territorial restrictions are removed, there will be unequal distribu tion of vehicles in various territories.
While there 'will be shortage in some territories, there will be larger sup plies in others.
Vehicles are supplied by Telco according to territorial requirements.
Various factors are taken into consideration in assessing the requirements of territo ries.
By making it 's dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicle.
Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telco 's dealers operate.
Any other manufacturer of vehicles 'similar to those of Talco is also free to appoint dealers of its choice in the same territory covered by Telco 's dealers.
The channels for outlet for vehicles have not been blocked by the fact that the dealers appointed by Telco are exclusive to Telco nor it can be said that Telco has by its exclusive arrange ment with its dealers affected the flow of supplies of vehicles into the market.
If Telco Sold themselves in each territory it could not be said that Telco was pursuing any restrictive trade practice.
Would the position change if Telco asked their dealers not to sell Telco bus chassis outside the dealer 's territory? Just as Telco could not complete with itself similarly dealers would not compete with one another.
The competition would be between Telco products and the products of the other manufacturers Premier, Hindustan and Leyland. 'Restrictive trade practice is based on reason embodied in Section 2(0) of the Act.
When trucks are in short supply and dealers are 700 restrained from selling at above the maximum price they cannot sell below the maximum price and compete with one another.
Dealers of the same manufacturer do not compete with one another in every case irrespective of the market conditions or the character of the product sold.
Competition between dealers appointed by the same manu facturer can be reduced when there is a practical possibili ty. of such competition as for example, When the goods are in abundance.
When there is an acute scarcity of goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition.
Restric tion on competition postulates the existence or the possi bility of competition.
On the facts proved in the present case the only competition possible is between the ,dealers and the manufacturer 'section The territorial restriction pro motes competition between the four manufacturers in every part of India while it has no effect of any theoretical competition between the dealers because such competition between dealers does not and cannot exist.
The question of competition cannot be considered in vacuo or in a doctrinaire spirit.
The concept of competi tion is to be understood in a commercial sense.
Territorial restriction will promote competition whereas the removal of territorial restriction would reduce competition.
As a result of territorial restriction there is in each part of India open competition among the four manufacturers.
If the territorial restriction is removed there will be pockets without any competition in certain parts of India.
If the dealer in Kashmir is allowed to sell anywhere in India wealthy cities like Delhi, Bombay, Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks.
The other three manufactur ers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco.
Therefore, competition will be reduced in Kashmir by the successful competitor being put out of the field.
The real reason for exclusive dealership is that instead of diminishing competition between four manufacturers each dealer tries to do his best for his own trucks, bus and thus reduce keen competition among the four manufacturers.
If one dealer deals in trucks of one or more manufacturers one cannot be expected to compete with itself it is, therefore, clear that exclusive dealership promotes instead of re tarding competition.
Clauses 1 and 3 are in the interest of the consumer and ensure equal distribution as far as possible of the goods at a fair price.
These provisions do not tend to obstruct the flow of capital or resources into the stream of production or to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.
701 In the present case the restriction imposed by Telco on dealers not to sell bus and chassis outside their territo ries does not restrict competition for the foregoing rea sons.
The other term of exclusive dealership in clauses 6 and 14 of the agreement between Telco and the dealers that the dealer will not sell commercial vehicles of other manufac turers, does not amount to a restriction in competition because other manufacturers can appoint other persons to deal in their commercial vehicles.
It is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers.
Therefore, there will be competition between the manufacturers of different commercial vehicles and as far as exclusive dealership of Telco commercial vehicles is concerned, it will be in public interest ' and not be a restriction in competition.
The two terms of restriction on dealers, namely, 'sale being confined within the territory and the other being confined to dealing in only Telco vehicles are not prejudi cial to public interest.
The Commission found that exclu sive nature of dealership of being confined to Telco vehi cles is not prejudicial to public interest.
The territorial restriction is also.
in public interest and the Commission was in error in thinking that it is not so.
For the foregoing reasons the appeal is accepted.
The decision of the Commission is set aside.
We hold that the agreement in the present case is not within the vice of restrictive trade practice and is, therefore, not registra ble.
We make it clear that in a given case sale of commodi ties being confined to a territory may amount to a restric tive trade practice.
In the special features and facts and circumstances of the exclusive dealership agreement between Telco and the dealers the territorial restriction imposed on the sellers not to sell vehicles outside their territories is not a restrictive trade practice.
Parties will pay and bear their own costs.
P.B.R. Appeal allowed.
| IN-Abs | Section 2(o) of the Restrictive Trade Practices Act, 1969 defines "restrictive trade practice" to be a trade practice which tends to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or re strictions.
Section 33 provides that any agreement relating to a restrictive trade practice falling within one or more of the categories (a) to (I) specified in sub s.(1) thereof shall be registered.
Section 37 enacts that the Monopo lies and Restrictive Trade Practices Commission may inquire into any restrictive trade practice, whether the agreement relating thereto had been registered under section 35 or not.
Under section 38 when the Commission finds that such re strictions are necessary or justified, in the circumstances mentioned in the section, it may permit such restrictions.
The appellant is a manufacturer of heavy and medium commercial vehicles.
The appellant enters into an agreement with dealers in regard to sale of its vehicles.
Clause 1 (a) of the agreement provides that a dealer shall buy from the Regional Sales Office of the company a new Tata diesel truck for resale within the territory described in accord ance with the provisions of the agreement.
Clause (b) provides that the agreement shall not preclude the company from entering into any dealership agreement with any other person or persons within the said territory.
Clause 3 prohibits the dealer from selling the vehicles either di rectly or indirectly to any person outside the territory.
Clause 6(a) provides that the dealer shall maintain an organisation for the sale of the vehicles in accordance with the directions of the appellant.
Clause 14 prohibits the dealer from handling or selling vehicles manufactured or supplied by any other company.
In a petition under section 10(a)(iii) of the Act, the Regis trar of the Restrictive Trade Practices alleged that cls.
(1) and (3) of the agreement between the appellant and its dealers provided for territorial restrictions or allocation of areas or market, cl.
(6) provided for resale price main tenance, cl. 14 provided for exclusive dealership and all these clauses of the agreement showed that the appellant was indulging in restrictive ' trade practices relating to allo cation of territories or areas among its dealers and that the appellant was not willing to abandon the restrictive trade practices.
The Commission held inter alia.
that cls.
(1) and (3) of the agreement.
constituted restrictive trade practices and, therefore, void.
It was contended on behalf of the respondent that irrespec tive of the injurious or beneficial consequences of a trade practice which may restrict competition, an agreement may fall within the definition of that term in section 2(0) of the Act.
An injurious or beneficial result Of the restriction is relevant only for purposes of section 37 and section 38 and not for the purposes of section 33.
Allowing the appeal, HELD: The agreement in the present case was not within the vice of restrictive trade practice and was not registra ble.
686 (1) An agreement will be registrable when it will have both the effect of restricting competition within the meaning of section 2(0) and also deal with the subject matter described in sections 33(1)(a) to (I).
A practice which is not restrictive under section 2(0) of the Act cannot be a restrictive 'trade practice only because of cls.
(a) to (1) of section 33(1).
Section 33 does not provide statutory illustrations to section 2(0) of the Act but only enumerates some types of trade practices which, if they are restrictive within section 2(0), require registration.
[693 F G] (2) The definition of restrictive trade practice is an exhaustive and not an inclusive one.
The decision whether a trade practice is restrictive or not has to be arrived at by applying the rule of reason and not on doctrine that any restriction as to area or price will per se be a restrictive trade practice.
The question in each case is whether the restraint is such as regulates and thereby promotes competi tion or whether it is such may suppress or even destroy competition.
To determine this question three matters are to be considered, namely, (1) what facts are peculiar to the business to which the restraint is applied, (2) what was the condition before and after the restraint was imposed, and (3) what was the nature of the restraint and what was its actual and probable effect.
[693 D F] (3) When the authorities under the Act want to challenge any agreement or any practice as a restrictive trade prac tice, it has to be established that it is a restrictive trade practice within the definition of section 2(0).
If it is found that it is a restrictive trade practice, it has to be registered under s 33.
It is only after an agreement had been registered that there is an enquiry under Chapter VI of the Act.
This enquiry under section 37 is to find out whether a restrictive trade 'practice is prejudicial to the public interest.
[692 H, 693 A] (4) The two terms of restriction on dealers, namely, one confining sales within the territory and .t_he other confin ing dealers to dealing in only the appellant 's vehicles are not prejudicial to public interest.
The territorial re striction is also in public interest and the Commission was in error in thinking that it was not so.
[701 C D] In the instant case, the supply of commercial vehicles is far below the demand and the gap between supply and demand is growing.
The vehicles of the appellant were in great demand not only in the country but outside the country as well.
Clauses relating to territorial restric tion do not constitute 'restrictive trade practice because the domestic market is spread all over the country, to meet the needs of the users of vehicles the appellant has a countrywide network of dealers who maintain service sta tions, workshops, requisite equipment, machinery and trained personnel.
The appellant ensures that the vehicles are only sold by dealers who have the requisite facilities and organisation to give after sales service.
The appellant gives a warranty in respect of the vehicles.
A geographical network is natural to the industry which the appellant has set up.
The appellant has zonal offices throughout the country.
If the territorial restriction is removed, there will be a tendency for person to book orders in all areas thus starving the consumers of a particular area of their equitable share and disrupting the flow of vehicles in both areas.
If the dealer is not assumed of a steady demand in his territory he may have no incentive or may not find it economic to organise proper after sales service.
Some of the dealers have even maintained mobile service vans.
[694 H, 695 A] The exclusive dealings of the appellant do not impede competition but promote it.
Such dealings lead to special isation and improvement in after salesservice.
The exclu sive dealership agreements do not restrict distribution in any area or prevent competition.
By making its dealers exclusive, it cannot be said that there is prevention, distortion or restriction of competition in the territory in which the dealer operates.
Any manufacturer of vehicles similar to those of the appellant is also free to appoint dealers of its choice in the Same territory covered by the appellant 's dealers.
The channels for outlet for vehicles have not been blocked.
[699 F G] 687 When there is acute scarcity of the goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition.
Territorial restriction promotes competition between the different manufacturers in every part of India.
[700 B C] Clauses (1) and (3) are in the interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price.
Clauses (6) and (14) do not amount to a restriction in competition because other manufacturers could appoint other persons to deal in their commercial vehicles.
It is also in public interest to see that vehi cles of other manufacturers are sold in the same territory by other dealers.
[701 B C]
|
Appeal No. 1997 of 1968.
Appeal by Special Leave from the Judgment and Order dated the 13th February, 1968 of the Bombay High Court in Special Civil Application No. 643 of 1967.
B.N. Lokur and A. G. Ratnaparkhi for the Appellant.
S.V. Gupte, R.B. Datar and Sanjeev Kumar for Respondents.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is from the judgment dated 13 February 1968of the High Court of Bombay.
The appellant was owner of land covered by Survey No. 201/2, 194/13, 200/29 and 194/15.
The appellant 's wife sold this land to respondent No. 1 on 14 June 1946.
On 12 April 1962 the appellant made an application under ' section 70(b) of the Bombay Tenancy & Agricultural Lands Act (hereinafter referred to as the Bombay Act) for a declaration that he was a tenant of two of the four plots of land namely, Survey Nos. 194/15 and 200/29.
This dispute between the appellant and the respondent in regard to alleged tenancy claim for these two survey numbers went up to the Maharashtra Revenue Tribunal.
The Tribunal by order dated 19 March, 1954 rejected the claim of the appellant to tenancy in respect of the land covered by Survey Nos.
200/29 and 194/15.
Thereafter the respondent filed an application on 24 January 1963 under section 70(b) of the Bombay Act for a declaration that the appellant was not tenant of the remain ing two Survey Nos.201/2 and 194/13.
The respondent alleged that he never leased the land to the appellant.
The re spondent further said that he came to know about entry in the record of rights for the years 1955 56 on the strength of mutation alleged to have been made on 30 January 1956 and sanctioned on 13 November 1956.
This application of the respondent was resisted by the appellant on the ground that he was tenant of these two survey Nos.
201/2 and 194/13.
The matter was heard by the Mamlatdar.
By an order dated 31 July 1963 the Mamlatdar rejected the claim of the appellant to be.
a tenant.
Thereafter the matter was taken up to the District Deputy Collector.
The Deputy Collector by his order dated 27 June 1966 upheld the Mamlatdar 's order.
Before the Mamlatdar and the Deputy Collector the respondent examined himself.
He was cross examined and his attention was drawn in cross examination towards an alleged admission about the appellant being his tenant in the depo sition.
recorded by the Tenancy Aval Karkun in an earlier case on 10 September 1962.
The respondent denied that he made.any admission.
The previous deposition was not shown to him on that day.
673 On 9 July 1963 a certified copy of the deposition in the earlier proceedings was placed on record.
On that very day the.
appellant examined himself, saying that he was a tenant of the land and he had no other evidence to show in support of his case except the certified copy of the statement which was produced on that day.
The appellant also relied on the extracts of the record of rights showing that the respondent was shown as 'Kabze dar ' of Survey Nos.
201/2 and the appellant was shown as tenant of the same.
In regard to Survey No. 194/13 it also appeared from the record of rights that the respondent was shown as 'kabzedar ' and the appellant as a tenant.
On this evidence the Mamlatdar held that the appellant was not Cultivating the lands as a tenant of the respondent and he declared that the appellant was not a tenant.
The Deputy ColleCtor affirmed the order of the Mamlatdar.
The Maharashtra ReVenue Tribunal however by its order dated 9 January 1967 held that the appellant was proved to be a tenant of the land.
The respondent thereupon took the matter to the High Court under Article 227.
The High Court set aside the order of the Revenue Tribunal.
The appellant obtained special leave from this Court.
On behalf of the appellant three contentions were advanced.
First, that the respondent was bound by his admission that the appellant is a tenant.
Second, there is a presumption of the correctness of the record of rights under section 135 J of the Bombay Land Revenue Code 1879.
Third, the Maharashtra Revenue Tribunal was justified in setting aside the findings of fact of the Mamlatdar and the Deputy Collec tor because of error of law.
The admission on which reliance has been placed by counsel for the appellant suffers from three infirmities.
In the deposition of the respondent in Tenancy Case No. 6/61 62 dated 10 September 1962, the respondent gave evi dence in regard to dispute between the respondent and the appellant in relation to Survey Nos.
200/29 and 194/15 respondent said that he never kept the appellant as a tenant on the land.
In cross examination it was suggested to the respondent that the land bearing Survey No. 201/2 belonged to the respondent and that the appellant is a tenant in the land.
The respondent said as follows: "The land Survey No. '201/2 situate in Balkum belongs to me in Balkum.
The applicant is a tenant in the said land.
I do not take the rent in respect of the said land . .
I have prior to 15 20 years purchased this land from Sita ram Bhau.
Even the land bearing section No. 201/2 was purchased right from him.
I have never cultivated the land bearings section No. 201/2.
It was barren at that time.
When this land was to be acquired I learnt whether Sitaram Bhau was culti vating this land . or whether his name has been entered as a tenant against this land(?) I cannot say as to whose land is around the land beating section No. 201/2 or other Land.
" 674 This evidence read in its entirety is not an admission at all.
A person who says that 'I have taken no rent ' obviously says that there is no relationship of landlord or tenant.
The first infirmity in regard to this admission is that whatever was said by the respondent in regard to Survey No. 201/2 is irrelevant and inadmissible in the deposition of the respondent in that case.
Section 17 of the Indian Evidence Act states that 'An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter men tioned '.
In regard to dispute between the appellant and the respondent arising out of Survey No. 194/15 and 200/29, Survey Nos.
201/2 and 194/13 were neither issues in fact nor relevant fact.
The second infirmity against this admission being used against the respondent is that as long as the respondent was under cross examination, it was not brought to his notice.
It is said by counsel for the appellant relying on the decision of this Court in Bharat Singh and Anr.
vs Bhagira thi reported in 1966(1) S.C.R. 606, that this admission was proved by the appellant and this admission on the ruling Of the decision of this Court (Supra) is substantive evidence and is therefore admissible against the respondent.
The decision of this Court in Bharat Singh 's case (Supra) is that: "Admissions have to be clear if they are to be used against the person making them.
Admissions are substantive evidence by them selves, in view of sections 17 & 22 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted.
" Admission proved are said in the decision to be "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether the party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions".
Counsel for the appellant submitted that the respond ent even though not confronted with the admissions would be bound by his admissions and the appellant would be enti tled to rely on the admissions as admissible.
There is the observation in the very next sentence in the aforesaid decision of this Court that "the purpose of contradicting the witness under section 145 of the Evidence.
Act is very much different from the purpose of proving .the admission".
It, therefore.
, follows that admission is relevant and it has to be proved before it becomes evidence.
If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions of Section 145 of the Evidence Act.
The provisions in the Indian Evidence Act that 'admission is not conclusive proof ' are to be considered in regard ,to two features of evidence.
First, what weight is to be attached to an admission ? In order to attach weight it has to 675 be found out whether the admission is clear, unambiguous and is a relevant piece of evidence.
Second, even if the admis sion is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, "it is sound that if a witness is under cross examination on oath, he should be given an opportunity if the document are to be used against him, to tender his explanation and to clear up the point of ambiguity or dis pute.
This is a general salutary and intelligible rule" (see Bal Gangadhar Tilak vs Shrinivas Pandit 42 Indian Appeals 135 at page 147).
The Judicial Committee in that case said, "it has to be observed with regret and with surprise that the general principle and the specific statu tory provisions have not been followed".
The general prin ciple is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same.
The specific statutory provision is contained in Section 145 of the Indian Evidence Act that "A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant matters in question, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him".
The fore, a mere proof of admission, after the person whose admission is alleged to be has concluded his evidence, will be of no avail a cannot be utilised against him.
The third infirmity with regard to this admission is whether this is a clear and unequivocal admission.
The High Court said that"a certified copy of the deposition was placed on record on 9 July 1973, on which day against it does not appear that the contents of the deposition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness." .The contents of the ' alleged admission .to which reference has been made are not unambiguous and cannot be accepted as an admission.
The contents are that he was not receiving any rent and the land was fallow.
Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there was any admission and in set ting aside the decision of the Revenue Tribunal.
The second ' contention on behalf of the appellant is that the certain record of rights relied on by the appellant would establish that the appellant was a tenant.
The High Court ' rightly accepted the contention of the respondent that after a careful consideration of the evidence on record the fact finding courts, i.e. the Mamlatdar and the Special Deputy Collector recorded a finding that the appellant had not cultivated the land in dispute as the tenant of the respondent.
Therefore the Revenue Tribunal had no jurisdic tion to interfere and set aside the finding of fact.
As to the record of rights it appears that the High Court referred to two important features.
It is true that the record of rights relate to Survey Nos.
201/2 and 194/13 and there is mention of the appellant as tenant.
There is also a reference to the mutation proceedings.
The name of the respondent is shown as Kabjedar.
Two of the 9 112SC1/77 676 important heads in the record are 'Mode ' and 'Crops & fal lows '.
The Mode is shown as "I" and under Crops and fallows entry 'Paddy ' is shown.
The High Court referred to this feature of the record of rights Mode "I" means that the respondent cultivated as owner of the land that was never even case of the appellant.
The High Court rightly said that the irresistible conclusion therefore is that the extracts from the record of rights contain entries which do not have any relation to true facts.
If that is the posi tion with regard to these extracts, these cannot be relied on for inference that actually the land was cultivated and paddy crops were grown on the said land.
With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness.
There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct.
Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956.
Counsel for the respondent rightly contended that no presumption could arise for two principal reasons.
First, the oral evidence in this case nullified the entries.
in the record of rights as showing a state of affairs op posed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings.
Therefore the respondent is right in contend ing that no presumption can validly arise from the record of rights.
The third contention on behalf of the appellant that the Tribunal was justified to interfere because of error of law is also unacceptable.
The provisions contained in section 76 of the Bombay Act enumerate the grounds on which there can be revision by the Revenue Tribunal.
One of the grounds is that there is 'error of law '.
In the present case the manner in which the Maharashtra Revenue Tribunal entertained the revision was by holding, as follows: "There is evidence that the applicant (meaning thereby the appellant) has been in actual possession of land since 1956 57 onwards".
However, the authorities below have rejected the entries as well as the opponents ' (meaning thereby the respondent) admission on the ground that the applicant did not support the entries by producing the rent receipts.
According to the authorities below the burden was on the applicant to prove his case by producing evidence to corroborate the entries.
The appellate authority has also observed that the alleged admission of the opponent, made in the other case was rejected by the Revenue Tribunal.
The authorities below arrived at the conclusion that the applicant 's possession was otherwise than lawful.
This concurrent finding of the authorities below is being challenged by the applicant in this revision application.
" The Revenue Tribunal seemed to consider the approach of the a Mamlatdar and the Deputy Collector to be erroneous because according to the Revenue Tribunal the burden was shifted to the respondent 677 to rebut the entry in the record of rights and .that the respondent failed to discharge that burden.
When the entire evidence is before the Court, it is well settled that the burden of proof becomes immaterial.
Further the Revenue Tribunal fell into error of enter taining the Revision when there was no error of law on the face of the record.
The presumption which was said to arise in the record of rights was before the Deputy Collector as well as the Mamlatdar.
If the authority entrusted with adjudication goes into the question and assesses the same, the decision may be right or wrong but that will not go to show that there is any error of law on the fact of record.
All the three contentions advanced by the appellant fail.
The appeal is for the foregoing reasons dismissed with costs.
P.H.P. Appeal dis missed.
| IN-Abs | The appellant was owner of the suit land.
The appel lant 's wife sold this land to respondent No 1.
Thereafter, the appellant made an application under section 70(b) of the Bombay Tenancy & Agricultural Lands Act, 1948, for a decla ration that he was a tenant of two of the 4 plots of the land.
The dispute went up to the Maharashtra Revenue Tribu nal who rejected the claim of the appellant to tenancy.
Thereafter, the respondent filed an application under sec tion 70(b) of the said Act praying for a declaration that the appellant was not a tenant in respect of the remaining two survey numbers also.
The respondent alleged that he never leased the land to the appellant and that he came to know of the entry of the record of rights for the year 1955 56 on the strength of mutation alleged to have been made on 30.1.1966.
The respondent was cross examined and it was suggested to him that he had made an admission in previ ous deposition although the said deposition was not shown to the respondent.
After the cross examination of the respond ent was over, a certified copy of the said deposition was placed on record.
Thereafter the appellant was examined and he relied on the extract of the record of rights.
The Mamlatdar rejected the claim of the appellant to be a tenant which was confirmed by the Deputy Collector.
The Maharash tra Revenue Tribunal held in exercise of its revisional powers that the appellant was proved to be a tenant of the land and set aside the concurrent findings of the two au thorities below.
In a writ petition filed by the respondent under article 227 of the Constitution the High Courts set aside the order of the Revenue Tribunal.
Dismissing the appeal by Special Leave, HELD : 1.
Admission on which reliance has been placed by the appellant suffers from 3 infirmities: (i) Earlier deposition related to two different survey numbers.
Whatever was stated about another survey number is irrelevant and inadmissible.
Since under section 17 of the Indian Evidence Act an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact.
(ii) In fact there was no admission in the earlier proceed ings; and (iii) The deposition was not brought to the notice of re spondent when he was being cross examined.
Privy Council has laid down in the case of Bal Gangadhar Tilak that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the statement.
[673 E, 674 A C, 675 A E] Bal Gangadhar Tilak vs Shrinivas Pandit 42 Indian Ap peals 135 at page 147, applied.
There is a presumption about the correctness of the record of rights.
However, there is no abstract principle that whatever will appear in the Record of Rights will be presumed to be correct.
In the present case it is shown by evidence that the entries are not correct.
[676 B D] 672 3.
Under section 76 of the Act power of Tribunal to interfere is limited.
There was no error of law on the face of the record.
If the authority entrusted with adjudication goes into the question and assesses the same, the decision may 'be right or wrong but that will not go to show that there is any error of law on the face of record.
[676 E, 677 A B]
|
l Appeal Nos.
772 773 of 1972.
From the Judgment and Order dated 9th/10th July, 1970 of the Calcutta High Court in I.T.R. No. 158 of 1966.
N. A. Palkhivala, Dr. D. Pal, U.K. Khaitan, S.R. Agar wal and Parveen Kumar for the Appellant.
V.P. Raman, Addl.
General, T.A. Ramachandran and R.N. Sachthey for the Respondents.
764 The Judgment of the Court was delivered by GOSWAMI, J.
These two appeals by certificate are from the judgment of the Calcutta High Court since reported in Commissioner Income tax, West Bengal I vs Textile Machinery Corporation( ').
The two appeals relate respectively to two assessment years 1958 59 (calendar year 1957) and 1959 60 (calendar year 1958).
The matter relates to the claim by the assessee for exemption of tax under section 15C of the Indian Income tax Act, 1922 (briefly the Act).
The matter came u13 before the High Court 'on a refer ence under section 66(1) of the Act.
The two questions referred to were as follows : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Steel Foundry Division was an industrial undertaking to which section 15C of the.
Indian Income tax Act, 1922, applied ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Jute Mill Division set up by the assessee company was an indus trial undertaking to which section 15C of the Indian Incometax Act, 1922, applied ? The facts may briefly be stated: The assessee (the appellant herein) is a heavy engineer ing concern manufacturing boilers, machinery parts, wagons, etc.
For the assessment years 1958 59 and 1959 60 the assessee claimed exemption of tax under section 15C of the Act in respect of the profits and gains derived from its Steel Foundry Division and a similar claim for relief under section 15C in respect of its profits and gains derived from its Jute Mill Division for the year 1959 60.
The assessee had previously in the earlier years bought from outside the castings manufactured in the Steel Foundry Division which was started in the assessment year 1958 59 and continued thereafter.
Again, similarly in the year '1959 60, in addition to the manufacturing of castings in the Steel Foundry Division the assessee started the Jute Mill Division where the parts made out of the raw material supplied by the Boiler Division by machining and forging them were given to the Boiler Division of the assessee.
It was found that out of a total sale of Rs.28,23,127/ of steel castings goods worth Rs.18,39,433/ were used in connection with the various Divisions of the company.
In respect of the Jute Mill Division, the Incometax Officer found that out of the total sales of Rs.13,03,509/ sales.
to the Boiler Division totalled Rs.11,89,812/ and sales to outside the Jute Mill Division totalled only a sum of Rs.1,13,6971/ .
The Income tax Officer and the Appellate Assistant Commissioner, on the above facts, held the under takings as expansion and reconstruction of the business already existing and hence the assessee was not entitled (1) 765 to exemption under section 15C of the Act.
The Income tax Appellate Tribunal, however, allowed the appeal of the assessee and accepted the claim for exemption under section 15C.
According to the Tribunal both the Steel Foundry and the Jute Mill Division of the assessee were new industrial undertakings.
The above conclusion was reached on the basis of several facts found by the Tribunal.
These arc that the machinery was new, was housed in a separate building and that industrial licences had to be obtained, for manufactur ing the parts in question.
According to the Tribunal the existing business of the assessee consisted of manufacturing boilers, wagons, etc.
and for that purpose the assessee was purchasing the spare parts, forgings and castings from outside.
The Tribunal came to the conclusion that the business of the new industrial undertakings was to manufac ture those very spare parts.
Hence the Tribunal concluded that it could not be said that the undertakings were formed out of the existing 'business to come within the mischief of the exclusion clause in section 15C(2)(i).
The Tribunal rightly relying upon the Tara Iron and Steel Co. Ltd. and Others vs State of Bihar(1) also held that even though the manufactured products of the new industrial undertakings were mostly used in the assessee 's other business of manu facturing boilers, wagons, etc.
the element of profit was there and the extent of the same could be ascertained as the assessee was maintaining separate books of account.
In the reference at the instance of the Department the High Court answered both the questions in the negative and against the assessee.
The High Court held as follows : "The goods which the steel foundry division and the jute mill division began producing for the assessee were also previous ly used by the assessee in its business, but they were purchased from outside and this purchase from outside was replaced by produc tion or manufacture from within the asses see 's own business.
This change of producing one 's own goods systematically used in the existing business instead of buying them from outside would only be a reconstruction of a business already in existence .
In so far as they started producing and manufactur ing themselves, the assessee was doing some thing which was only a reconstruction of the business already in existence . .
The newness of the machinery of the steel foundry division and the jute mill division could not by itself make them new industrial undertakings.
Separate housing of, and separate accounts for, the steel foundry division and jute mill division may be only parts of reconstruction of the same business and did not necessarily indicate a new indus trial undertaking.
The grant of a special licence for the steel foundry division did not make it an industrial undertaking to qualify for exemption from tax under section 15C, because the licence was for expansion of the existing industrial undertaking and the licence did not cover the jute mill division".
(1) 766 It is, however, admitted before us that both the units were covered by licences.
The controversy in these appeals centres round the true construction of section 15C(2)(i) of the Act and in particu lar with regard to the scope and ambit of the expression therein, namely, the reconstruction of business already in existence.
Is the High Court right in holding that the two industrial undertakings, namely, the Steel Foundry and the Jute Mill Division, are formed by reconstruction of the business already in existence differing from the con trary conclusion reached by the Tribunal ? Before we proceed further, we will read section 15C as it stood during the material time: "15C. Exemption from tax of newly estab lished industrial undertakings.
(1) Save as otherwise hereinafter provided, the tax shall not be payable by an assessee on so much of the profits or gains derived from any industrial undertaking to which this section applies as do not exceed six per cent per annum on the capital employed in the undertaking computed in accordance with such rules as may be made in this behalf by the Central Board of Revenue.
(2) This section applies to any industrial undertaking which (i) is not formed by the splitting up, or the reconstruction of, business already in existence or by the transfer to a new business of building, machinery or plant, previously used in any other business; (ii) has begun or begins to manufacture or produce articles in any part of taxable territories at any time within a period of thirteen years from the 1st day of April 1948, or such further period as the Central Govern ment may, by notification in the Official Gazette, specify with reference to any partic ular industrial undertaking; (iii) employs ten or more workers in a manufacturing process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried on without the aid of power; Provided that the Central Government may, by notifica tion in the Official Gazette, direct that the exemption conferred by this section shall not apply to any particular industrial undertaking.
767 (3) The profits or gains of an industrial undertaking to which this section applies shall be computed in accordance with the provisions of section 10.
(4) The tax Shall not be payable by a shareholder in respect of so much of any dividend paid or deemed to be paid to him by an industrial undertaking as is attributable to that part of the profits or gains on which the tax is not payable under this sec tion.
(5) Nothing in this section shall affect the application of section 23A in relation to the profits or gains of an industrial under taking to which this section applies.
(6) The provisions of this section shall apply to the assessment for the financial year next following the previous year in which.the assessee begins to manufacture or produce articles and for the four assessments immediately succeeding".
We are principally concerned in these appeals with clause (i) of sub section (2) of section 15C and that also only with one part of it, namely, whether the industrial undertakings, Steel Foundry and the Jute Mill Division, are not formed by the reconstruction of the business already in existence.
The learned Additional Solicitor General submits that these two undertakings are not entitled to exemption under section 15C(2) as rightly so held by the High Court since they were formed by the reconstruction of the assessee 's business already in existence, namely, the business of heavy engineering.
He submits that setting up of a separate unit to do something in the course of pre existing manufacturing process to aid the production of the same article as was being produced by the pre existing industrial undertaking would not amount to starting of a new industrial undertak ing.
He further emphasises that production of the articles in the Steel Foundry and in the Jute Mill Division is only ancillary activity to the main business of the assessee and since the articles produced in these two supplemental undertakings help in producing the identical article which has been the end product of the assessee 's main business, section 15C(2) (i) cannot come to the aid of the assessee.
According to Mr, Raman these two industrial undertakings cannot be said to be not formed out of the reconstruction of the business already in existence.
Section 15C(2)(i) only excludes three categories of industrial undertakings from the benefit of the section without referring to clauses (ii) and (iii) of that sub section and other limiting provisions of the section which are not applicable in the instant case.
It is contended by Mr. Palkhivala that acceptance of the Additional Solicitor General 's submission will amount to adding a fourth category of cases in sub section (2)(i), namely, an industrial under 768 taking which is an ancillary undertaking manufacturing certain articles to supplement the principal industrial activity.
This, says Mr. Palkhivala, will be adding something to the section.
Section 15C is an exemption section.
The benefit grant ed under this section is a partial benefit so far as the quantum of the exempted profits of the new industrial under taking as also for a limited period or periods as specified in the section.
If the two industrial undertakings, about the existence of which there can be no controversy, as found by the Tribunal, cannot be held to.
be formed by the recon struction of the business already in existence, the benefit of section 15C will be available to the assessee.
The principal object of section 15C is to encourage setting up of new industrial undertakings by offering tax incentive within a period of 13 years from April 1, 1948.
Section 15C provides for a fractional.
exemption from tax of profits of a newly established undertaking for five assessment years as speci fied therein.
This section was inserted in the Act in 1949 by section 13 of the Taxation Laws (Extensions to Merged States and Amendment) Act, 1949 (Act 67 of 1949) extending the benefit to the actual manufacture or production of arti cles commencing from a prior date, namely, April 1, 1948.
After the country had gained independence in 1947 it was most essential to give fillip to trade and industry from all quarters.
That seems to be the background for insertion of section 15C.
It is also significant that the limit of the number of years for the purpose of claiming exemption has been pro gressively raised from the initial 3 years in 1949 to 6 years in 1953, 7 years in 1954, 13 years in 1956 and 18 years in 1960.
The incentive introduced in 1949 has been thus stepped up ever since and the only object is that which we have already mentioned.
Under sub section (1) of section 15C the tax shall not be payable by an assessee on profits not exceeding six per cent per annum on the capital employed in the new industrial undertaking from the profits which alone exemption is claimed.
Sub section (2) of section 15C has a negative as well as a positive aspect.
Negatively, the new industrial undertaking of the assessee should not be formed (1) by the splitting up of the business already in existence, (2) by the reconstruction of business already in existence, or (3) by the transfer to a new business of building, machinery or plant used in a busi ness which was being carried on before April 1, 1948.
We agree that it is not possible to exclude any new indus trial undertaking other than the three categories mentioned above.
769 We are concerned in these appeals with the type No. (2) mentioned above.
Positively, the new industrial undertaking must produce result, that is to say, it has to manufacture or produce articles at any time within a period of 13 years from April 1, 1948.
The further requirement under sub section (2) is with regard to the personnel in the under taking, namely, that ten or more workers have to work in the manufacturing process carried on with the aid of power or twenty or more workers have to carry on work without the aid of power.
The above element with regard to the number of workers engaged in the undertaking would go to.
show that even small industrial undertakings, newly started, are within the exemption clause, where, for example, twenty workers may complete the industrial process without the aid of power.
There is no controversy about the .positive aspects in 'these appeals.
Again, the new undertaking must not be substantially the same old existing business.
The third excluded category mentioned above significant.
Even if a new business is carried on but by piercing the veil of the new business it is found that there is employment of the assets of the old business, the benefit will be not available.
From this it clearly follows that substantial investment of new capital is imperative.
The words "the capital employed" in the principal clause of section 15C are significant, for fresh capital must be employed in the new undertaking claiming exemption.
There must be a new under.taking where substan tial investment of fresh capital must be made in order to enable earning of profits attributable to that new capital.
The assessee continues to be the same for the purpose of assessment.
It has its existing business already liable to tax.
It produced in the two concerned undertakings commodi ties different from those which it has been manufacturing or producing in its existing business.
Manufacture of produc tion of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under section 15C. Sub section (6) of the section also points to the same effect, namely, production of articles.
The answer, in every particular case depends upon the peculiar/acts and conditions of the new industrial undertaking on account of which the assessee claims exemp tion under section 15C. No hard and fast rule can be laid down.
Trade and industry do not run in earmarked channels and particularly so in view of manifold scientific and technological developments.
There is great scope for expan sion of trade and industry.
The fact that an assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on that score, deprive him of the benefit under section 15C. Every new creation in business is some kind of expan sion and advancement.
The true test is no.t whether the new industrial undertaking connotes expansion of the exist ing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business.
No particular decision in one case can lay down an inexorable test to determine whether a given case comes under section 15C or not.
In order that the new undertaking can be said to be not formed out of the already existing business, there 770 must be a new emergence of a physically separate industrial unit which may exist on its own as a viable unit.
An undertakings is formed out of the existing business if the physical identity with the old unit is preserved.
This has not happened here in the case of the two undertakings which are separate and distinct.
It is clear that the principal business of the assessee is heavy engineering in the course of which it manufactures boilers, wagons, etc.
If an industrial undertaking produce certain machines or parts which are, by themselves, identi fiable units being marketable commodities and the undertak ing can exist even after the cessation of the principal business of the assessee, it cannot be anything but a new and separate industrial undertaking to qualify for appropri ate exemption under section 15C. The principal business of the assessee can be carried on even if the said two addi tional undertakings cease to function.
Again, the con verse is also true.
The fact that the articles produced by the two undertakings are used by the Boiler Division of the assessee will not weigh against holding that these are new and separate undertakings.
On the other hand the fact that a portion of the articles produced in these two new indus trial undertakings had been sold in the open market to others is a circumstance in favour of the assessee that the new industrial units can function on their own.
Use of the articles by the assessee is not decisive to deny the benefit of section 15C. Section 15C partially exempts from tax a new industri al unit which is separate physically from the old one, the capital of which and the profits thereon are ascertainable.
There is no difficulty to hold that section 15C is applica ble to an absolutely new undertaking for the first time started by an assessee.
The cases which give rise to controversy are those where the old business is being car ried on by the assessee and a new activity is launched by him by establishing new plants and machinery by investing substantial funds.
The new activity may produce the same commodities of the old business or it may produce some other distinct marketable products, even commodities which may feed the old business.
These products may be consumed by the assessee in his old business or may be sold in the open market.
One thing is certain that the new undertaking must be an integrated unit by itself wherein articles are pro duced and at least a minimum of ten persons with the aid of power and a minimum of twenty persons without the aid of power have been employed.
Such a new industrially recognisa ble unit of an assessee cannot be said to be reconstruction of his old business since there is no transfer of any assets of the old business to the new undertaking which takes place when there is reconstruction of the old busi ness.
For the purpose Of section 15C the industrial units set up must be new in the sense that new plants and machin ery are erected for producing either the same commodities or some distinct commodities.
In order to deny the benefit of section 15C the new undertaking must be formed by recon struction of the old business.
Now in the instant case there is no formation of any industrial undertaking out of the existing business since that can take place only when the assets of the old business are transferred substantially to the new undertaking.
There is no such transfer of assets in the two cases with which we are concerned.
771 We will now deal with the question whether the two undertak ings the assessee are formed by reconstruction of the exist ing business.
The word 'reconstruction ' is not defined in the Act but has received judicial interpretation.
In re South African Supply and Cold Storage Company, Wild vs Same Company(1), Buckley, J. dealing with the meaning of the word 'reconstruction ' in a company matter observed as fol lows : "What does 'reconstruction ' mean ? To my mind it means this.
An undertaking of some definite ' kind is being carried on, and the conclusion is arrived at that it is not desirable to kill that undertaking, but that it is desirable to preserve it in some form, and to do so, not by selling it to an outsider who shall carry it on that would be a mere sale but in some altered form to continue the undertaking in Such a manner as that the persons now carrying it on will substantially continue to carry it on.
It involves, I think, that substantially the same business shall be carried on and substantially the same persons shall carry it on.
But it does not involve that all the assets shall pass to the new company or resuscitated company, or that all the shareholders of the old company shall be shareholders in the new company or resusci tated company.
Substantially the business and the persons interested must be the same".
This concept of reconstruction was accepted by the Bombay High Court in the Commissioner of Income tax, Bombay City I vs Gaekwar Foam and Rubber Co. Ltd. (1), dealing with section 15C of the Act.
While adverting to the passage which we have just quoted the Bombay "Now fully appreciating the distinction which counsel for the Revenue has sought to make between the case of a reconstruction of a company and the case of reconstruction of a business, these observations, as we read them, are equally illuminating in the context of reconstruction of business already in existence in the case of a newly established industrial undertaking".
The Delhi High Court also in Commissioner of Income tax vs Gangs Sugar Corpora tion Ltd.(a), accepted the above concept of 'reconstruction ' in the following passage : "We have given the matter our earnest consideration and are of the view that in the reconstruction of business, as in the reconstruction of a company, there is an element of transfer of assets and of some change, however partial or restricted it may be, of ownership of the assets.
The transfer, however, need not be of all the assets.
It is none the less impera tive that there should be continuity and preservation of the old undertaking though in an altered form.
(1) (3) 772 The concept of reconstruction of business would not be attracted when a company which is already running one industrial unit sets up another industrial unit.
The new indus trial unit would not lose its separate and independent identity even though it has been set up by a company which is already running an industrial unit before the setting up of the new unit".
We endorse the above views with regard to reconstruction of business.
Reconstruction of business involves the idea of substan tially the same persons carrying on substantially the same business.
It is stated on behalf of the Revenue that the same company in the instant case continues to do the same business of heavy engineering no matter certain spare parts necessary as components to completion of the end product are now manufactured in the business itself.
The fact that the assessee is carrying on the general business of heavy engineering will not prevent him from setting up new industrial undertakings and from claiming benefit under section 15C if that section is otherwise applicable.
Howev er, in order to be entitled to the benefit under ' section 15C, the following facts have to be established by the assessee.
subject always to the time schedule in the section : (1) investment of substantial fresh capi tal in the industrial undertaking set up, (2) employment of requisite labour therein, (3) manufacture or production of articles in the said undertaking, (4) earning of profits clearly attributa ble to the said new undertaking, and (5) above all, a separate and distinct identity of the industrial unit set up.
We may add that there is no bar to an assessee carrying on a particular business to set up a new industrial undertaking on account of which exemption of tax under section 15C may be claimed.
The legislature has advisedly refrained from inserting a definition of the word 'reconstruction ' in the Act.
Indeed, in the infinite variety of instances of restructuring of industry in the course of strides in technology and of other developments, the question has to be left for decision on the peculiar facts of each case.
If any undertaking is not formed by reconstruction of the old business that undertaking will not be denied the benefit of section 15C simply because it goes to expand the general business of the assessee on some directions.
As in the instant case, once the new industrial undertakings are separate and independent production units ' in the sense that the commodities produced or the results achieved are commercially tangible products and the undertakings can be carried on 773 separately without complete absorption and losing their identity in the old business, they are not to be treated as being formed by reconstruction of the old business.
The business of the assessee is of heavy engineering.
The two new undertakings are independently producing arti cles which may be of aid to the principal business but yet the undertakings are distinct and not reconstruction out of the existing business of the assessee.
Use by the assessee of the articles produced in its existing business or the concept of expansion are not decisive tests in construing section 15C.
The High Court is not right in holding the two undertakings as formed by reconstruction of the existing business of the assessee.
Several decisions have been cited at the bar before us.
We approve of the conclusions in Commissioner of In come tax vs Ganga Sugar Corporation Ltd. (supra); Rajeswari Mills Ltd. vs Commissioner of income tax, Madras(1); Nagar das Bechardas & Brothers P Ltd. vs Commissioner of Income tax Gujarat (2); Commissioner of Income tax, West Bengal I vs Electric Construction and Equipment Company Ltd.(3); Commissioner ofIncome tax vs Hindusthan Motors Limited(4).
The decision in Commissioner of Income tax vs Naya Sahitya(5) does not represent the correct legal position and, hence, cannot be approved.
We may observe that we are not required to consider in these appeals how profit will be actually calculated in order to determine the quantum of exemption of six per cent of the profit on the capital employed.
If difficulties are insurmountable and, therefore, profit cannot be ascer tained, that will be a different question in the course of practical application of the section.
That kind of a possi ble difficulty should not weigh in the true construction of section 15C.
In the present case the assessee claimed profit and there was no difficulty about ascertainment of the exempted profit as separate books of accounts were kept and the undertakings were at separate places.
In view of the foregoing discussion, we are clearly of opinion that the High Court is not right in answering the two questions in the negative and against the assessee.
On the other hand.
the Tribunal was right in answering the two questions in the affirmative and against the Department.
The two questions referred stand answered in the affirma tive.
The judgment of the High Court, is, therefore, set aside and the appeals are allowed with costs.
P.B.R. Appeals allowed.
(1) (2) (3) (4) [1976] Taxation Law Reports.
| IN-Abs | Section 15C of the Indian Income tax Act 1922, which deals with exemption from tax of newly established industri al undertakings, provides in sub section
2(i) that the section applies, among others, to any industrial undertaking which is not formed by the splitting up, or the reconstruction of business already in existence.
The assessee (appellant) was a heavy engineering con cern manufacturing boilers.
machinery parts and wagons.
In addition, it had started a Steel Foundry Division and a Jute Mill Division.
The bulk of the goods produced in both the divisions was used in the various divisions of the assessee company.
The assessee 's claim for exemption from tax under section 15C in respect of profits derived from both the companies was rejected by the Income tax Officer and its appeal was rejected by the Appellate Assistant Commissioner on the ground theft the .undertakings were an expansion and recon struction of the existing business.
On appeal, the Appellate Tribunal held that although the products manufactured in the two divisions were used in the assessee 's business, the Steel Foundry and the Jute Mill Division were new industrial undertakings, in that the machinery used in them was new, they were housed in separate buildings, were: established under separate licences and that both the new divisions were maintaining separate books of account.
On reference, the High Court held that it was a case of reconstruction of the existing business because the goods produced in the two divisions were primarily used in the assessee 's engineering concern.
Allowing the appeal.
HELD: The Tribunal was right in holding in favour of the assessee.
Section 15C is applicable to an absolutely new undertaking for the first time started and in order to deny benefit of the section, the, new undertaking must be formed by reconstruction of the old business.
[768 B C] 1.
(a) In order to be entitled to the benefit of section 15C, the assessee has to establish: (1) the investment of substantial fresh capital in the industrial undertaking; (2) employment of the requisite labour therein (3) manufacture or production of articles in the under taking; (4) earning of profits 'clearly attributable to the new undertaking; and (5) separate and distinct indentity of the industrial unit set up.
(b) Once the new industrial undertakings are separate and independent production units in the sense that the commodities produced or the results achieved are commercial ly tangible products and the undertakings can be carried on separately without complete absorption and losing their identity in the old business, they are not to be treated as being formed by reconstruction of the old business.
[772 H, 773 A] 763 (c) The object of the section is to encourage the setting up of new industrial undertakings by offering tax incentives within a certain period.
Sub section (2) has a negative as well as a positive aspect.
Negatively, a new undertakings should not be formed by splitting up of the business already in existence and by the reconstruction of business already in existence; and positively, a new undertaking must produce results, that is to say, it has to manufacture or produce articles at any time within the stipulated period.
The new undertaking must not be substan tially the same as the existing business.
The words "the capital .employed" are significant, for, fresh capital must be employed in the undertaking claiming exemption.
Manufac ture or production of articles yielding additional profits attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter to earn the benefit from the exemption of tax liability under section 15C.
The fact that by establishing a new industrial undertaking the asses see expands its existing business would not deprive it of the benefit under section 15C. If an industrial undertaking produces certain machines or parts which are identifiable units being marketable commodities and the undertaking can exist even after the cessation of the principal business of the assessee, it cannot be anything but a new and separate industrial undertaking to qualify for appropriate exemption under section 15C. [769 E H, 770A] In the instant case, the principal business of the assessee can be carried on even if the two additional undertakings cease to function.
The fact that a portion the articles produced in the new undertakings had been sold in the open market to others is a circumstance in favour of the assessee that the new industrial units can function on their own.
Use of the articles by the assessee is not decisive 10 deny the benefit of section 15C.
There was no 'formation of any indus trial undertaking out of the existing business since that can take place only when the assets of the old business are transferred substantially to the new undertaking.
there ,ins no difficulty about ascertainment of the exempted profit as separate books of accounts were kept and the undertakings were at separate places.
[770 B D. G H] The High Court was not right in holding that the two undertakings were formed by reconstruction of the existing business of the assessee.
[773 B C] 2.
Reconstruction involves that substantially the same business shall be carried on and substantially the same persons shall carry it on.
But it does not involve that all the assets shall pass to the new company or resus citated company, or that all the shareholders of the old company shall be shareholders in the new company.
Substan tially the business and the person interested must be the same.
[771 C D] South African Supply and Cold Storage Company Wild vs Same Company, , followed.
Commissioner of Income tax Bombay City 1 vs Gackwar Foam and Rubber Co. Ltd. , Commissioner of Income tax vs Ganga Sugar Corporation Ltd. , Rajeswari Mills Ltd. vs Commissioner of Income tax Madras, , Nagardas Bechardas & Brothers P. Ltd. vs Commis sioner Income tax Gujarat, , Commissioner of Income tax.
West Bengal I vs Electric Construction and Equipment Company Ltd. and Commissioner of Income tax vs Hindustan Motors Limited, [1976] Taxation Law Reports 821, approved.
Commissioner of Income tax vs Naya Sahitya , not approved.
|
Appeal No. 2128 of 1969.
From the Judgment and Order dated 4th May, 1968 of the Madhya Pradesh High Court in First Appeal No. 88/67.
M.S. Gupta for the Appellants.
Ram Panjwani and H.S. Parihar for Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal on certificate is directed against a judgment, dated May 4, 1968, of the High Court of Madhya Pradesh.
It arises out of these facts: The appellants were owners of 7.35 acres of land being a part of Khasra No. 47/1 in the area of village Manglipeth District Seoni, Madhya Pradesh.
On November 4, 1963, a notification under section 4 read with Sub section
(1) of section 17 of the Land Acquisition Act, 1894 (to be hereinafter referred to as the Act) was published in the Government Gazette stating that this land was needed by the State Government for imple mentation of Seoni Water Supply Scheme.
The declaration under section 6 of the Act was published on December 18, 1963, and notices under section 9 of the Act were issued by the Collec tor on December 28, 1963.
In response to that notice, the appellants filed a claim 758 that they were willing to accept compensation in respect of this land at the rate of Rs.1500/ per acre, "as the lands adjoining this land and situated in a lesser advantageous position are sold at this rate".
The Collector made his award on August 17, 1964, whereby he awarded compensation for this land at the rate of Rs.450/ per acre.
The total amount awarded for this piece of land after adding solatium at the rate of 15%, was Rs.2,904/ .
He also awarded inter est at the rate of 4% from September 19, 1964, on which date, the Collector had taken over possession of the land.
Dissatisfied with the Collector 's award, the appellants made an application under section 18 of the Act for reference to the District Court for enhancement of the compensation.
The Collector accordingly made a reference.
The Additional District Judge, Seoni, who heard the reference, enhanced the compensation to Rs.11,000/ per acre.
In this way, after adding solatium, he awarded to the appellants, herein, a total amount of Rs.80,850/ together with interest at the rate of 6%.
Against that judgment, dated May 2, 1967, of the Additional District Judge, an appeal was preferred by the Collector, to the High Court.
The High Court accepted the appeal, set aside the award of the Additional District Judge and restored that of the Collector.
The High Court however, granted a certificate under Art; 133 of the Constitution.
The first contention of Shri M.S. Gupta, appearing for the appellants, is that the appeal flied in the High Court against the award of the Additional District Judge was not an appeal in the eye of law inasmuch as the Collector, who flied it, was not competent to do so.
It is stressed that no appeal was filed by the State as such, and consequently, the incompetent appeal fired by the Collector should have been dismissed summarily on this preliminary ground without entering upon the merits.
This objection was raised before the High Court, also.
The High Court fully considered it against the background of this case, and found no substance in it.
In the interests of justice we are not disposed to interfere with that find ing.
On merits, we find, in agreement with the High Court, that the District Judge was palpably wrong inasmuch as he awarded compensation at a rate far higher than what had been claimed by the appellants themselves, pursuant to the notice under section 9 of the Act.
The learned Additional District Judge acted contrary to the legislative mandate contained in section 25 (1) of the Act, according to which, the Court "shall not award" compensation to an applicant in excess of the amount claimed by him pursuant to any notice under section 9.
The only question that remains for our decision is, whether the High Court was right in scaling down the compen sation to Rs.450/ per acre ? 759 Mr. Gupta contends that the High Court was not right in holding that there was no evidence to show that the land in question had potential value as building sites.
It is submitted that the High Court has simply ignored that evi dence.
In this connection Counsel has referred to the evidence on record showing that the appellants had before the acquisition, paid diversion charges to the Government, at the rate of Rs.500/ per acre in respect of the adjoining land, for bringing it into use as building sites.
Counsel has further referred to the evidence showing that the land in question is close to a built up quarter of the town, and is within the Municipal limits.
Shri Ram Panjwani, appearing for the Respondent, submits that this evidence was much too insufficient to establish the potential value of the land as building sites, because the existing buildings in the vicinity of this land are old buildings, and the deposit of Rs.500/as diversion charges for the adjacent land made by the appellants, was only a speculative investment with an eye on the distant future In support of his contention, Shri Panjwani has referred to the decision of this Court in R.N. Singh vs
U.P. Government(1).
In our opinion, there is evidence on the record which unmistakably shows that from the view point of a willing purchaser, at the relevant time, this land had potential value as building sites.
Firstly, it was admitted even by Gokul Prasad who was examined by the Respondents as their Witness No. 1, that in front of the land in question there are buildings which are being used as the office of the Range Officer and as residential quarters for the employees of that Department.
Adjoining the Range Office is the house of Dewan Najaf Ali in which the Additional District Judge was residing.
The witness further admitted that the land in dispute abutts on Seoni Chhindwara Road.
Dadu Yogendra Nath Singh, appellant, testified in the witnessstand that apart from the office and the quarters of the Forest Department, there were other buildings also, near this land.
At a short distance was the bungalow of Shri Bhargava, Barrister.
The Municipal Octroi Post was adjacent to this land.
The land in question is within the Municipal limits of Seoni.
The appellant further stated that he intended to parcel out this land into plots and sell the same as building sites and that was why for the adjacent land, he had obtained for that purpose, the permission of the Government by depositing diversion charges at the rate of Rs.500/ per acre.
He added that negotiations for the sale of two plots had already been completed at the rate of 12 annas per foot.
He also cited other instances of sales of land in the vicinity at rates ranging from 4 annas per foot to 6 annas per foot.
The oral evidence of Dadu Yogendra Nath Singh with regard to the fact that the adjoining land had been laid out into plots for building purposes, receives full corrobo ration from unimpeachable documentary evidence on record, which shows that the appellants had (1)[1967] 1 S.C.R 489.
760 before this acquisition, in 1963, made an application to the Sub Divisional Officer, Seoni, for permission to bring 6.16 acres of agricultural land out of Kh.
No. 47/1, "in non agricultural use viz., for construction of houses".
The order of the officer concerned was that such permission.
was granted to him on depositing diversion charges in respect of that area at the rate of Rs.500/ per acre.
It is signifi cant to note that this piece of 6.16 acres was also a part of Khasra No. 47/1, out of which Khasra, the land, admeasur ing 7.35 acres, is in question.
This circumstance unerring ly indicates that the land in question was suitable for being used as building sites, and had for that purpose, a potential value substantially in excess of Rs.500/ per acre.
The High Court has not at all discussed this evi dence.
It is difficult to accept the argument advanced on behalf of the respondent that the appellant had paid Rs.500/ per acre as diversion charges for the adjacent land, merely as speculative business in the hope of making money in the remote future.
No prudent person would make such an investment if there was no reasonable chance of a good return over that investment in the present, or immedi ate future.
In our opinion this circumstance coupled with the other facts, namely, that the land in question is within the Municipal limits and is located just on the edge of an inhabited locality of the town, having other buildings in the immediate vicinity, was sufficient to establish its potential value as building sites.
The observations made by this Court in R.N. Singh vs U.P. Government (supra) do not advance the case of the respondent.
In that case, Shelat J. quoted these observa tions from an earlier decision, in N.B. Jeejabhoy vs The District Collector, Thana (C.A. Nos. 313 to 315 of 1965 decided on August 30, 1965): "A vendor willing to sell his land at the market value will take into consideration a particular potentiality or special adapt ability of the land in fixing the price.
It is not the fancy or the obsession of the vendor that enters the market value, but the objective factor namely, whether the said potentiality can be turned to account within a reasonably near future.
The question there fore turns upon the facts of each case.
In the context of building potentiality many questions will have to be asked and answered, whether there is pressure on the land for building activity, whether the acquired land is suitable for building purposes, whether the extension of the said activity is towards the land acquired, what is the pace of the progress and how far the said activity has extended and within what time, whether build ings have been put up on lands purchased for building purposes, what is the distance be tween the built in land and the land acquired and similar other questions will have to be answered.
It is the over all picture drawn on the said relevant circumstances that affords the solution.
" What has been extracted above are broad guidelines and not immutable absolutes.
The essence of the whole thing is in the sentence which has been underlined.
It shows that in the ultimate 761 analysis, the question, whether or not a land has potential value as building site, is primarily one of fact.
in the present case, the circumstance that the appellants had voluntarily paid Rs.500/ per acre as diversion charges, for laying out the adjoining land into plots as building sites, was of a clinching character, and taken in conjunction with the other facts, noticed above, conclusively showed that its potential value as building sites was much more than the rate of Rs.450/ per acre awarded by the Collector and the High Court.
In their application dated 17 10 1964, under section 18 of the Act, the appellants stated that similar land in the immediate vicinity had been sold at the rate of Rs.1,250/ per acre and another plot at the rate of Rs.1,350/ per acre.
These lands are close to the area for which they had paid the diversion charges at the rate of Rs.500/ per acre.
They filed a map also, showing the location of those lands.
On an over all view, after taking into account the potential value of the land, we think it will be reasonable to award compensation to the appellants at the rate of Rs.1,250/ per acre with interest at 6% per annum till payment, from the date on which the possession was taken over by the Collec tor.
The appellants shall also be entitled to solatium at 15% on the compensation amount awarded for the land.
Accordingly, we allow the appeal with proportionate costs and modify the decree of the High Court to the extent indicated above.
M.R. Appeal allowed.
| IN-Abs | Responding to a notice under section 9 of the Land Acquisi tion Act, 1894, the appellants flied a claim for Rs.1500/ per acre at which rate the adjoining lands were sold.
The Collector awarded compensation at the rate of Rs.450/ per acre.
At the instance of the appellants under section 18 of the Act, the matter was referred to the District Judge who enhanced the compensation to Rs.11,000/per acre.
An appeal by the Collector was allowed by the High Court on the ground that the District Judge had acted contrary to the mandate contained in section 25(1) of the Act, by awarding compensation in excess of the amount claimed.
The appellants contended that their land had building potentiality and its value was substantially more than Rs.500/ per acre, which had been paid by them to the Government as diversion charges for permission t.o use the adjoining land for building houses.
Allowing the appeal by certificate, the Court, HELD: The circumstance that the appellants had volun tarily paid Rs.500/per acre as diversion charges, for laying out the adjoining land into plots as building sites, taken in conjunction with the other facts, namely, that the land in question is within the municipal limits and is located just on the edge of an inhabited locality of the town, having.
other buildings in the immediate vicinity, show that its potential value as building sites is much more than the rate of Rs.450/ per acre, awarded by the Collector and the High Court.
[760 C D, 761 A B]
|
262 of 1955.
Under Article 32 of the Constitution for a Writ in the nature of Habeas Corpus.
R. V. section Mani, the next friend, in person.
M. C. Setalvad, Attorney General for India (G. N. Joshi and Porus A. Mehta, with him).
Naunit Lal, for the respondent.
984 1955.
November II.
The Judgment of the Court was delivered by BOSE J.
This is a petition under article 32 of the Constitution for a writ of habeas corpus.
The petition was presented by Mr. R.V.S. Mani, an advocate of the Nagpur High Court, on behalf of Shrimati Vidya Verma and was directed against her father Dr. Shiv Narayan Verma of Nagpur.
Mr. Mani bad no power of attorney from the lady and when the office pointed out that be could not present a petition without producing the necessary authority he amended the petition and described himself as the next friend of the lady.
When the matter first came up for hearing we directed a notice to issue to the father but later the same day it was brought to our notice that the opposite party was not either the Union of India or a State, nor was it some official acting under the orders of one or the other, but a private person.
The question therefore arose of our power under article 32 to issue a writ of this kind against a private party.
Accordingly, before the notice was sent out we recalled it and set the matter down for further hearing.
Mr. Mani appeared again on the appointed date and was robed as he had been on the previous occasion.
He was asked to clarify his position and when be said he had no power of attorney and explained that he was appearing in a private capacity as next friend he was told that at the next hearing he must address the Court without his robes.
He was also warned that if he lost he might have to bear the costs of the other side personally.
After hearing Mr. Mani for a time we decided to fix a date for the hearing of a prelimi nary question only, namely, whether a fundamental right is involved when the detention complained of is by a private person and not by a State or under the authority or orders of a State.
We directed that notices be issued to the opposite party as well as to the Attorney General of India.
At the adjourned hearing Mr. Mani appeared in person, unrobed as directed, but with the advocate on 985 record sitting by his side.
He asked for permission to address us himself.
We declined to hear him unless he discharged the advocate on record.
He did that on the spot and then proceeded to address us in person.
As the question that arises here has been discussed at length in two earlier decisions of this Court we need not examine the matter, in any detail.
The fundamental right that is said to be infringed is the one conferred by article 21: the right to personal liberty.
In A. K. Gopalan vs The State of Madras(1) four of the six learned Judges who were in that case held that the word "law" in article 21 referred to State made law and not to law in the abstract.
They rejected the contention that this was the same as the due process clause in the American Constitution.
One learned Judge dissented and one expressed no opinion on this point.
Patanjali Sastri., J. (as he then was) said at page 204 that as a rule constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law; and section R. Das, J. dealing with the question of preventive detention said at page 324 that article 21 protects a person against preventive detention by the executive without the sanction of a law made by the legislature.
This principle was applied to articles 19(1) (f) and 31 (1) by a Bench of five Judges in P. D. Shamdasani vs Central Bank of India(1) who held that violation of rights of property by a private individual is not within the purview of these articles, therefore a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under article 32.
Article 21 was not directly involved but the learned Judges referring to article 31(1) said at page 394: "It is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty.
There is no express reference to the State in article 21.
But could it be (1) ; (2) ; 986 suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals? The words (except by procedure established by law ' plainly exclude such a suggestions.
They held that the language of article 31 (1) was similar and decided that article 31 (1) did not apply to invasions of a right by a private individual and consequently no writ under article 32 would lie in such a case.
For the same reasons we hold that the present petition which is founded on article 21 does not lie under article 32.
It is accordingly dismissed.
As regards costs Mr. Mani has no power of attorney and has chosen to appear as next friend despite the warning given to him at the last hearing.
This is the fourth time the matter is being agitated in the Courts.
The first attempt was an application under section 100 of the Criminal Procedure Code made by the person who, according to Mr. Mani, is the husband of the lady in whose interests he says he is acting.
It was filed on 10 9 1954 and asked for a search warrant for the recovery of the lady.
The application was dismissed and a revision filed against the order of dismissal also failed.
The same gentleman then applied to the High Court at Nagpur on 18 10 1954 under section 491 of the Criminal Procedure Code.
The learned Judges examined the lady, who is 25 years old, in person, on 20 10 1954 and on the strength of her statement, which they recorded, they held that she was not under any restraint either in the house or outside and so dismissed the application on 10 11 1954.
Mr. Mani then took up the cudgels and filled a second petition in the High Court on 6 12,1954, also under section 491.
The learned Judges again examined the lady, this time on two successive days.
On 20 12 1954 she said that she did not want to live with her father but wanted to live with her uncle at Waraseoni.
She appeared again the next day and clarified this by saying that she would go to her uncle in the company of her father.
She said, that she had no discomfort in living with her father but was not at ease with him 987 and would have more peace of mind with her uncle.
She also said: "I have no need of any counsel and have nothing to talk to Shri R. V. section Mani".
The girl was allowed to go to her uncle.
Mr. Mani then applied for leave to withdraw the petition.
This was allowed on 24 1 1955 and no order was made about costs.
Then came the present petition on 22 8 1955.
The petition does not disclose that Mr. Mani made any attempt to consult the person who he says is the husband of the lady (a fact which is disputed and on which we express no opinion) nor does it show that he made any attempt to contact either the lady or her father or even her uncle.
He has had three hearings in this Court despite the warning he was given about costs and the learned Attorney General was also asked by us to appear.
When the arguments were fully concluded and Mr. Mani found that we were against him he adopted the same tactics as in the Nagpur High Court and asked for permission to withdraw the petition.
That was refused.
We invited him to show cause why he should not be made to pay the costs and have heard all he has to say.
In the circumstances set out above, we feel this is a case in which he should be made to pay the costs personally.
We dismiss the petition and direct that Mr. Mani pay the costs of the opposite party personally in addition to those of the learned Attorney General and that he bear his own, also personally.
| IN-Abs | No question of infringement of any fundamental right under article 21 arises where the detention complained of is by a private person and not by, a State or under the authority or orders of a State, and the Supreme Court will not, therefore, entertain an application for a writ of have a corpus, under article 32 of the Constitution.
Consequently a petition under article 32 of the Constitution for a writ of habeas corpus founded on article 21 and directed against a father for alleged detention of his daughter does not lie.
A. K. Gopalan vs The State of Madras ([1950] S.C.R. 88) and P. D Shamdasani vs Central Bank of India ([1952] S.C.R. 391), relied on.
|
l Appeals Nos.
1545 1546 of 1972.
Appeals by Special Leave from the Judgment and Order dated the 4 8 1971 of the Gujarat High Court in S.C.A. Nos. 972 and 1527 of 1970 respectively.
826 V.P. Raman, Addl.
Gen., S.N. Prasad .and
Girish Chandra, for the Appellant in CA 1182/72 and CAS.1545 46/72.
V.M. Tarkunde, V. N. Ganpule, (Miss) M Tarkunde and P.C. Kapoor for Respondents in C.A. 1182/72.
V.N. Ganpule, A.K. Srivastava and Vineet Kumar for RR.
No. 1 in C.As.
1545 46/72.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Under the power conferred by Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Central Government issued an Order called "The Cotton Tex tiles (Control) Order, 1948".
Clause 20 of that Order, as amended, reads thus : "20(1) The Textile Commissioner may from time to time issue directions in writing to any manufacturer or class of manufacturers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof, which they shall or shall not pro duce during such periods as may be specified in the directions, and they shall comply with such directions.
20(2) In the exercise of the powers conferred upon him by sub clause (1) the Textile Commissioner shah have regard to the capacity of the producer to produce cloth and yarn of different descriptions or specifica tions and to the needs of the general pub lic.
" The question for our determination in these appeals is whether, if the Textile Commissioner decides to issue appro priate directions to any manufacturer or class of manufac turers, it is obligatory upon him to specify therein the period for which the directions will remain in operation.
As hold by this Court in State of Uttar Pradesh vs Jogendra Singh,(1) it is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command.
Considering the purpose of the relevant empower ment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative.
Directions of the kind envisaged by clause 20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time.
That becomes feasible only if the directions as limited expressly to a determinate period of" (1) ; at 202.
827 (Chandrachud, J.) time at the end of which a fresh review of facts and circum stances becomes obligatory.
There is a fear that a direc tion not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived.
Be sides, the manufacturers must know, in order that they may organize their business in their own interest as well as in the interest of the community at large, as to how long any particular embargo is going to be operative.
Accordingly, we affirm the judgment of the High Court though on the ground only that the impugned Notification in so far as it prohibits the printing of any border or heading on sarees etc.
for an indefinite period is ultra vires clause 20 of the Cotton Textiles (Control) Order, 1948, since the aforesaid clause casts an obligation or a duty upon the Textile Commissioner to specify the period during which the prohibition shall remain in force.
We express no opinion on the other points, including Point No. 6 urged before the High Court for its consideration.
The appeals are accordingly dismissed.
The appellants will pay one set of costs of these appeals to the respond ents.
S.R. Appeals dis missed.
| IN-Abs | Clause 20 of the Cotton Textiles (Control) Order, 1948 empowers the Textile Commissioner, having regard to the capacity of the producer to produce cloth and yarn of dif ferent description or specification and to the needs of the general public, to issue from time to time such directions in writing to any manufacturer or manufacturers generally regarding the class or specifications of cloth or yarn and the maximum or the minimum quantities thereof which they shall or shall not produce during such periods as may be specified m the directions.
The respondents ' challenge to the vires of the notifi cation issued by the appellant which prohibited the printing of any border or heading on sarees etc.
for an indefinite period was accepted by the Gujarat High Court.
Dismissing the appeals by special leave, the Court, HELD: (1 ) The impugned notification in so far as it prohibits the printing of any border and heading on sarees etc., for an indefinite period is ultra vires clause 20 of the Cotton Textiles (Control) Order 1948 since the aforesaid clause casts an obligation or a duty upon the Textile Com missioner to specify the period during which the prohibition shall remain in force.
[827 B C] (2) It is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation the word "may" which denotes discretion should be construed to mean a command.
Consid ering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, it is clear that the power conferred on the Textile Commissioner in the Cotton Textile (Control) Order 1948 to issue directions is coupled with a duty to specify the particular period for which the directions shall be operative.
[826 F G] State of Uttar Pradesh vs Jogendra Singh ; (a) 202, principles reiterated.
|
Appeal Nos. 1173 to 1175 of 1976.
Appeals by Special Leave from the Judgment and Order dated the 1 3 1975 of the, Bombay High Court (Nagpur Bench) in Special Civil Application No. 695 of 1971.
L.N. Sinha, Sol Genl., M.N. Shroff for the Appellants in CA 1173/76 for R. 3 in C.A. 1174/76 and 1175/76.
M.N. Phadke, V. M. Phadke and ,4.
G. Ratnaparkhi for RR.
J. and 2 in CA 1173/76 and CAs.
1174 75/76.
Nilofer (Mrs.).Bhagwat, S.C. Agrawal and V. J. Fran cis for R. 5 in C.A. 1174 and 1175/76.
V.J. Francis for RR.
No. 6 in CA 1175/76.
The Judgment of the Court was delivered by SINGHAL J.
These appeals arise out of a judgment of the Bombay High Court dated March 11, 1975, by which the High Court quashed that part of Government resolution dated January 15, 1970, "which holds that the respondents Nos.
3 to 5 should not be compelled to go back to their respective lists.
and which gives a further option to these three respondents to indicate whether they wanted to go back to the department of History.
" The High Court has further held that the writ petitioners will be entitled to be considered for promotion to Class I posts in the department of Politi cal Science and the seniority of respondents Nos. 3 to 5 "will be considered in the seniority list relating to the Department of History".
The controversy arose because of a writ petition filed by Bhalchandra Khanderao Joshi and Padmakar Siddhanath Kane.
Both of them were members of the Maharashtra Educational Service, Class II (Collegiate Branch).
Bhalchandra Khande rao Joshi was M.A. in Political Science as well as in History.
He was appointed Lecturer in Political Science in 1958, and was confirmed in that capacity.
Padmaliar Siddhanath Kane passed M.A. Examination in Political Science in 1956 and was appointed Lecturer in Political Science in 1958.
He was also confirmed on that post.
Both of them filed a writ 784 petition and challenged the resolution of the State Govern ment, in the Education and Social Welfare Department, No. SCP No. 1064 D dated January 15, 1970, in pursuance of which respondents Smt.
K.A. Parekh, S.A. Bari and Smt.
R.S. Dossal were promoted as Professors of Political Science and were given the option to opt for the History or the Political Science department.
It may be mentioned that after the reorganisation of States, a combined seniority list was prepared on November 1, 1956, for History and Political Science teachers.
In that list respondent No. 3 was; shown at serial No. 3, and respondent No. 4 at serial No. 5.
One S.R. Nanekar was appointed as Lecturer in Political Science on June ' 26, 1954.
Respondents Nos. 3 and 5 were M.A. in History.
It was not disputed in the High Court that Political Science was not a separate subject until 1956, in Bombay, because out of the eight papers for post graduation in History, four were in Political Science.
K.A. Parekh was M.A. in History and was recruited as Lecturer on August 5, 1946.
She however taught both History and Political Science upto 1963, when she was appointed officiating Professor of Political Science on February 27, 1963.
Dr. S.A. Bari was recruited as Lecturer in History on October 1, 1947.
He was thereafter promoted as Professor in that subject.
M.G. Sonnal, who. was M.A. in History, was appointed as Professor of Political Science.
R. S, Dassal was recruited as Assistant Lecturer in History on August 5, 1946, and taught both History and Political Science upto 1956.
Thereafter she taught only Political Science, and was promoted as Profes sor in that subject in 1968.
She was confirmed in that capacity in 1972.
These facts are quite sufficient for purposes of the present appeals.
The controversy relates to the question whether the Director of Education, Maharashtra State, had the authority to issue the letter dated August 20, 1963, which was ad dressed to all the Principals of he Government Colleges.
It was stated by the Director in that letter as follows, "It has been decided to amalgamate the two lists of lecturers in 'History ' and 'Political Science ' and to combine the two lists under the common subject of 'History ' and 'Political Science '.
The revised seniori ty list so prepared is enclosed herewith.
Please bring this decision of Government to the notice of the officers concerned.
" The Director thus conveyed the decision to amalgamate the lists .of
Lecturers in History and Political Science and to prepare a single seniority list for both the subjects.
It was expressly stated in the letter that it had been issued in pursuance of the decision of the State Government.
A revised seniority list was therefore prepared in which respondent No. 3 was placed at serial No,. 4, respondent No. 4 at serial No. 5, and S.R. Nanekar at serial No. 7.
Nanekar challenged that order in the High Court by Special Civil Application No. 120 of 1964, mainly on the ground that when two separate seniority lists had been prepared for the.
departments of History and Political Science, 785 in accordance with the earlier Government Order of 1960, the new list was invalid.
The High Court however took the view that the existence of the Government resolution dated February 27, 1963, which was said to be the authority for the issue of the Director 's letter dated August 20, 1963, had not been proved.
It therefore held that there was no such resolution or order requiring the preparation of a combined seniority list.
It decided that the earlier order of 1960, requiring the preparation of separate lists for History and Political Science, continued to be opera tive and that as Nanekar could not claim to be the senior most person in his department, he had no cause of action.
It therefore dismissed the writ petition.
The High Court, in the present case, went by the deci sion in Nanekar 's case, and held that there was no order or decision dated February 27, 1963, so that the action of amalgamating the lists of History and Political Science departments was invalid.
The High Court made a reference to the Director 's letter dated July 27, 1967 asking the Principals to forward information in the prescribed pro forma in respect of those Professors and Lecturers of Histo ry in their respective colleges who were qualified to teach Political Science and had been recognised therefore.
It also made a reference to the impugned resolution dated January 15, 1970 which reads as follows, "A decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in 'History ' and Lecturers in 'Political Science ' into one common list of Lecturers in 'History and Political Science '.
According ly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of "History" and "Political Science" or in any one of the two.
The decision to amalgamate the two lists into one was taken because it was noticed that some of the Lecturers in the seniority list of the subject "History" also possessed the qualifications in the subject "Political Science".
Similarly, some of the Lecturers in "Political Science" possessed the qualifications in "History".
But they were not considered eligible for appointment to a post of Professor in a subject other than the subject under which their names were included in the seniority list of their subject.
In order to remove this anomaly, decision to amalgamate the seniority lists of Lecturers in "History" and "Political Science" and to make appointment to the posts of Professors on the basis of the combined seniority list in the subjects of "History" and "Political Science" was taken by Government.
However, in view of the difficulties experienced with regard to the implementation of the decision of Government referred to above, Government on reconsideration decided in the year 1967 to revert to the old practice of having separate seniority lists of Lecturers for the two subjects.
, 'History ' and 'Political Science '.
786 2.
Some of the teaching members of the Department of History brought to the notice of Government that in the western Maharashtra formerly there were no separate posts for Political Science as "Political Science" did not exist as distinct subject.
All teachers were designated as Lecturers/ Professors in History, but they used to teach the subject "Political Science" also.
The question of giving option to those Lecturers/Professors, who were qualified to teach both, the sub jects, viz., "History" and "Political Science" and recognised as such, to elect either of the two subjects, was under consideration of Government for some time past.
While re verting to the decision to split up the combined seniority list of "History and Polit ical Science", Government considers that those who were promoted to the posts of professors on the basis of the combined seniority list should not be compelled to go back to their respective .lists.
Government has now decided that an option should be given to those Lecturers/Professors of the Old Bombay State, who were recruited as Lecturers/Professors of History but have been recognised as teachers of Political Science and also those who have been promoted to the posts of Professors in M.E.S.C. II (Collegiate Branch) on the basis of the combined seniority list, to elect either of the two Departments, viz. 'Histo ry ' or 'Political Science '.
Accordingly the concerned Lecturers/Professors were asked to exercise" their option.
The following offi cers have opted for their being treated as belonging to the Department of Political Science: (i) Smt.
K.A. Parekh, Officiating Profes sor of Political Science, I. Y. College, Jogeshwari.
(ii) Shri S.A. Bari, Officiating Profes sor of History, Government Arts and Science College, Aurangabad.
(iii) Smt.
R.S. Dossal, Officiating Pro fessor of Political Science, Elphistone Col lege, Bombay.
The option exercised by these officers have been accepted by Government and their senior ity in the Department of Political Science should be as shown in the accompanying state ment." (Emphasis added).
It therefore gave option to respondents Nos.
3 to 5 to go back to the department of History or not, and stated further that the option had been accepted and their seniority finalised in the Political Science department.
It is this resolution of the Government dated January 15, 1970 which has been challenged in the present petition.
The reason is that if respondents Nos. 3 to 5 had not been, given the option to continue in the Political Science department, the petitioners would have been promoted to a Class I Post.
They have stated that they would then not have been deprived of that chance in violation of article 16 of the Constitu tion.
787 Respondents Nos. 4 and 5 did not enter appearance in the High.
Court, but it was urged on behalf of respondent No. 3 that in view of the curriculam for the Master 's degree in History, upto 1956, a person obtaining the Master 's degree in History was equally qualified to teach Political Science.
It was also urged that the respondent taught Political Science and had been recognised by the University as a teacher of Political Science.
The High Court examined the effect of the Government resolution dated January 15, 1970, and held that in the absence of the earlier resolution dated February 27, 1963, the Director of Education was not compe tent to combine or amalgamate the seniority lists of the History and Political Science departments.
It assumed that "legally there was no amalgamation at all and any action taken on the basis of such amalgamation would also consequently have to fall on the ground." In that view of the matter, the High Court held that promotions were not permissible on the basis of the combined list.
It accord ingly held that the Government resolution dated January 15, 1970 proceeded on a "misapprehension" that the respondents.
had been promoted as Professors on the basis of the combined seniority list, which was itself invalid.
The High Court 'held that there was "no valid reason why persons who were qualified in the Department of Political Science itself could be prevented from having their names considered for the post 'of Professor in Class I." That led: the High Court to hold further that the option which was given by the resolution dated January 15, 1970 had the effect of perpetu ating the effect of the working of the invalid list, and amounted to violation of article 16 of the Constitution.
This is why the State of Maharashtra, Smt.
K.A. Parekh and Smt.
R.S. Dossal have come up in appeal by special leave to this Court.
The controversy therefore is whether the State govern ment passed.
the aforesaid resolution dated February 27, 1963, to amalgamate the lists of Lecturers in History and Political Science, as stated in the Director 's aforesaid letter dated August 20, 1963, or whether there was no such resolution and the Director 's order was unauthorised ? The High Court has taken the view that as no attempt was made to produce the resolution dated February 27, 1963 in Nanekar 's case, there was no such, resolution at all.
On that basis, it held that the Director had no authority to take the decision to amalgamate the lists.
We find however that in taking that view ' the High Court lost sight of the intrinsic evidence which was available on the record, to prove beyond doubt that Government had passed the aforesaid resolution dated February 27, 1963, to amalga mate the two lists.
We have extracted the Government reso lution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that "a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in "History" and Lecturers in "Political Science" into one common list of Lecturers in "History and Political Science".
" It has further been stated in that resolution of the Government that "accordingly, a combined seniority list was prepared with reference to the date of appointment of the 788 officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of 'History ' and 'Political Science ' or in any one of the two".
The reason for taking that "decision to amalgamate the two lists" has also been stated in the reso lution.
Then it has been stated that in ':view of the difficulties experienced with regard to the implementation of the decision of Government referred to above," the Government "on reconsideration" had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science.
It has also been stated that the decision had been taken for "reverting to the decision to split up" the combined seniority list which formed the basis of promotion of some of the teachers.
It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the diffi culties experienced in the implementation of that decision, and gives the reasons for the government 's decision to, revert to the old practice of having separate seniority lists.
As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27, 1963.
If it had done so, it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20,1963, and it was therefore an authorised communication.
In fact the Director specifically stated in that order that the "decision of Government" to amalgamate the two lists had to be.
brought to the notice of all concerned.
The combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above.
We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.
The resolution dated January 15, 1970 shows that as the Government had decided to split up the seniority list for the department of ' History and Political Science, it thought it desirable to.
give an ".option" to those Lecturers/Pro fessors of the old Bombay State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to elect for either of the two departments.
No exception can be taken to that decision to give ' the option to the Lecturers/Pro fessors concerned for, in the absence of such an option, they would have been deprived of the opportunity of express ing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion.
It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required to.
teach History, or Political Science, and were promoted as Profes sors of History or Political Science, on the basis of a combined seniority list for which.
they themselves were not responsible, it would have been unfair if they had been required to serve in another department by a unilateral executive fiat.
789 It may be mentioned that Mr. Phadke tried to argue that even if the resolution dated January 15, 1970 were held to be valid, it would not be permissible for the teachers concerned to take advantage or ' it because they did not fulfill its. requirements.
We do not find any merit in this argument.
As has been stated, those teachers were promoted to posts of Professors on the basis of the combined list, they were ,recognised as such teachers by the Univer sity, and were recruited initially as Lecturers in History.
They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it.
We have no doubt that in the facts and circum stances mentioned above, there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution.
The appeals are allowed, the impugned judgment of the High Court dated March 11, 1975 is set aside and the writ petition is dismissed.
The State of Maharashtra will pay the costs of respondents Nos. 1 and 2 (Bhalchandra K. Joshi and Padmakar Sidharath Rao) in Special Leave Petition No. 915 of 1976, as directed by this Court October 8, 1976.
| IN-Abs | After the reorganisation of the States a separate sen iority list was prepared by the State of Bombay for History and Political Science teachers.
On 20.8.1963, the Director of Education issued a letter conveying the decision of Government to amalgamate the list of lecturers in History and Lecturers in Political Science and to prepare a single seniority list for both the subjects.
It was expressly stated in the letter that it was issued in pursuance of the decision of the State Government.
Thereafter a revised seniority list was prepared.
One Nanekar filed a writ petition in the High Court challenging the said order on the ground that when two separate seniority lists had been prepared for the departments of History & Political Science in accordance with the earlier Government Order of 1960.
the new list was invalid.
The High Court took the view that the existence of the Government resolution dated 27.2.1963, which was said to be the authority for the issue of Direc tor 's letter dated 20.8.1963, had not been proved.
It therefore held that there Was no such resolution or.
order requiring the preparation of a combined seniority list.
It decided that the earlier order of 1960 requiring the prepa ration of separate list of History and Political Science continued to be operative.
It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his department In the present writ petition filed by B.K. Joshi and P.S. Kane the High Court followed its decision in Nanekar 's case and held that there was no order or decision dated 27.2.1963 so that the action of amalgamating the list of ' History and PoLit ical Science departments was invalid.
A resolution was taken on 15.1.1970 in which it was mentioned that the earli er decision to amal gainate the two categories was given up on account of the difficulties which were experienced and an option was given by the 1970 resolution in order to obviate those difficulties.
That resolution was challenged in the present proceedings.
The High Court examined the effect of the Government Resolution dated 15.1.1970 and held that in the absence of the earlier resolution dated 27.2.1963 the Director of Education was not competent to combine or amal gamate the seniority lists of History and Political Science Departments.
It assumed that legally there was no amalga mation at all and any action taken on the basis of the amalgamation would also consequently have to fall on that ground.
The High Court held that the option given by the 1970 resolution had the effect of perpetuating the effect of the working of the invalid list and amounted to violation of article 16 of the Constitution.
The High Court held that in Nanekar 's case no attempt was made to produce the resolution of 27.2.1963: Allowing the appeals, Held: 1: The High Court erred in observing that the resolution of 27.2.1963 did not exist.
The High Court lost sight of the intrinsic evidence which was available on the record to prove beyond doubt that Government had passed the resolution on 27.2.1963 to amalgamate the two lists.
In the 1970 resolution, the Government itself reiterated the act that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and the Lecturers in Political Science into one common list.
The reason for taking that decision to amalgamate the two lists was also stated in that resolution. ' In fact the 1970 reso lution made a mention of the difficulties experienced in working the 1963 resolution and that was why it was decided to revert to the decision to split up the combined seniority 'list which formed the basis of promotion of some of the teachers.
As the genuineness of the resolution of 1970 was 783 not challenged, the High Court ought to have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution of 1963.
In fact the Director in his order specifically stated that the decision of the Government to amalgamate the two lists had to be brought to the notice of all concerned.
The combined seniority list, was therefore fully authorised and there was nothing wrong if it formed the basis of the subsequent promotions.
[787 G H, 788 A E] 2.
No exception could be taken to the decision of the Government to give option to the Lecturers to elect either of the two departments.
The decision to amalgamate the seniority lists of the two departments was not taken in consultation with them and if they were required to teach History or Political Science and were promoted as Professor of History or Political Science on the basis of combined seniority list for which they themselves were not responsi ble, it would have been unfair if they had been required to serve in another depart.meat by a unilateral executive fiat.
|
Appeal No. 129 of 1968, Appeal by Special Leave from the Judgment and Order dated the 18 8 66 of the Bombay High Court in S.C.A. No. 1299/67 and Civil Appeal No. 2007 of 1969 From the Judgment and Order dated the 18th, 20th June 1968 of the Bombay High Court in S.C.A. No. 1676 of 1964.
and Special Leave Petition (Civil) No. 3175/75 From the Judgment and Order dated the 31 10 74 of the Bombay, High Court in Special Civil Appln.
No. 2610 of 1970.
V.M. Tarkunde, V.N. Ganpule and P.C. Kapoor for the appellant in C.A. 129 of 1968.
S.N. Anand for Respondent No. 1 in CA 129/68 V.N. Ganpule for the Petitioner in SLP S.B. Wad and R.N. Nath for the Appellants in CA 2007 of 1969.
R.B. Datar and S.C. Agarwal for Respondent No. 1 in CA 2007/ 69 The Judgment of the Court was delivered by KRISHNA IYER, J.
These two appeals raise a short issue of interpretation of the proviso to section 32F (1) (a) of the Bombay Tenancy and Agricultural lands Act, 1948 (Bombay Act LXVII of 1948) (hereinafter referred to as the Act).
The appellants in both the cases are the aggrieved landlords, the tenants ' right of purchase under the Act having been upheld by the High Court.
The correctness of this view is canvassed ,before us by counsel.
The facts necessary to appreciate the rival contentions may be are different but the issue is identical and, stated briefly.
The parties so a single judgment will dispose of both the appeals.
680 In Civil Appeal No. 2007 of 1969 the widow of a deceased landowner, one Dattatraya, is the appellant.
The deceased owned several houses, had a money lending business and considerable agricultural lands.
He left behind him on his death in 1952 a widow (the second appellant) and two sons, one of whom is the first appellant.
Admittedly the Act, an agrarian reform measure, was extensively amended by Bombay Act XIII of 1956 conferring great rights on tenants and inflicting serious mayhem on landlordism.
The case of the appellants is that there was a partition among the mother and the two sons of the agricultural estate whereunder the second appellant (the widow) was allotted around 80 acres of land out of which about 15 acres were held by the first respondent as a tenant, On the Tillers, Day tenants, bloomed into owners by the conferment of the right of pur chase.
On the basis that the first respondent had become the owner, a proceeding for the determination of the pur chase price of these lands was initiated? by the Tribunal, as provided under section 32G of the Act.
Although notice was not given to the second appellant, the first appellant appeared before the Tribunal, urged the case that the land held by the first respondent.
was set apart in a family partition to his mother, the second appellant, and.
that since she was a widow she came squarely within the protec tive provision of the proviso to cl.
(a) of section 32F(1 ) of the Act.
The first respondent, however, contested the partition and further pressed the plea that even if the agricultural ' lands had been divided since the house and the money lending business and other assets admittedly remained ' joint, the appellant was ineligible to claim the benefit of the proviso aforesaid.
We need not trace the history of the litigation from deck to deck but may conclude the story for the present purpose by stating that the High Court took the view that the second appellant (widow did not qualify under the said proviso: "The proviso is not satisfied ' unless the share of a disabled person is separated by metes and bounds in all of the joint family property and ' unless the agricul tural land allotted to him corresponds to his share in the entire property and is not in excess thereof.
" This was the construction put by the Court on the proviso and chal lenged before us by Shri Wad in C.A. 2007 of 1969 and by Shri Tarkunde in C.A. 129 of 1968.
In Civil Appeal No. 129 of 1968 the legal scenario is similar.
The family owned lands and other assets and there was a partition on November 7, 1956 confined to agricultural land only, but the house property remained undivided.
The partition deed shows that the land under the tenancy of the first respondent has been set apart to the share of a minor appellant.
The Tillers ' Day arrived '.
The tenant claimed to have become owner.
Proceedings under section 32G of the Act for determination of ' the compensation were commenced and the mantle of protection of the proviso to section 32F (I) (a) was pleaded in vain.
The High Court having negatived the land lord 's contention summarily, this Court has been approached, the point urged being the same as in the previous appeal.
In both the appeals we my proceed, for testing the legal pro.
position, on assumed facts.
We may take it that there was a parti 681 tion in both cases during the period referred to in the proviso, i.e., before March 31, 1958.
We may further take it that the widow and the minor come within the category specified in section 32F (1) (a).
We have also to proceed on the basis that the joint family in each case has other assets which remain joint and undivided.
Before proceeding further with the discussion it may be proper to read the relevant provision for a break up of the! statutory limbs: "32F. (1) Notwithstanding anything contained in the proceeding sections (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intima tion to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31: Provided that where a person of such category is a member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satis fied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family proper ty, and not in a larger proportion.
X X X X" Where the landlord is a minor or a widow, as in this case, the tenants ' fight to purchase such land under section 32 is postponed till their disability disappears and one year lapses thereafter.
But this embargo.
on the exercise of the fight of purchase by the tenant does not operate if the property belongs to a joint family and there is a partition therein and the land in question is allotted to the person under disability.
What the section insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; and (b) the Mamlatdar is satisfied that the share of such person in the land is separated in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.
We are dealing with an agrarian reform law whose avowed object is to confer full proprietorship on tilling tenants and it is a fact of common knowledge that landlords resort to cute agrarian legal engineering to circumvent the provisions.
The legislature, with local knowledge of famil iar manipulations and manouvres calculated to 682 defeat land reforms, makes widely worded provisions the 'why ' of it may not be easily discernible to the Court.
We have to give full force and effect without whittling down or supplying words.
Nor can the Court presume the mischief and remedy the evil by interpretative truncation.
A blend of the grammatical and the teleological modes of construction is the best and that is what has been done by the High Court.
We are free to agree that the involved drafting of the section has had its share in the marginal obscurity of meaning.
But our legislative process, not an unmixed bless ing, works under such instant stress and ad hoc haphazard ness that the whole piece when produced makes experienced draftsmen blush.
Reform of the inherited lawmaking method ology may save court time and reduce litigation.
Be that as it may, we have to wrestle with the language of the Proviso to decode its true sense.
The broad idea is to vest full ownership in the tenan try.
A compassionate exception is made in favour of handi capped landlords who cannot prove their need to recover their land on approved grounds.
These disabled categories include infants and widows.
But if the lands belong to joint families of which they are members, the raison d 'etre for such protection does not exist because the manager of this joint family takes care of its collective inter ests.
Where, however, there has been a partition of the joint family, then the widow or minor has to stand on her or his own disabled legs and so the Proviso to section 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer.
But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued.
Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage ,land is dearer still.
Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conven iently confined to land, became a popular art of extrica tion.
And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, condi tioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell tale transaction where agricultural lands .alone are divided and secondly, even where there is a total parti tion, only a fair proportion of the lands is allotted to the disabled person.
In this light, we may read the Proviso.
To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition.
We also accept that division in status is good enough to end commensality or jointness under the personal law.
But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special require ments.
The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositions.
683 Here the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled.
Sec tion 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers ' Day.
The Tribu nal suo motu takes action to determine the purchase price.
But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under section 32F (1).
The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricul tural lands.
Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion.
Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone.
Fox one thing, in most such partial parti tions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion.
More over, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations.
And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none.
For instance the house may be allotted to the widow and the lands taken over by adult males.
The ornaments may all go to the woman, the agriculture to the men.
We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect.
The Proviso clearly states that the disabled person 's share 'in the joint family ' must have been 'separated by metes and bounds '.
Separation from the joint family means separation from all the joint family assets.
Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family.
Notional division or divi sion in status also may not be enough because the Act in sists on separation 'by metes and bounds '.
Ordinarily 'metes and bounds ' are appropriate to real property, mean ing, as the phrase does, 'the boundary lines of land, with their terminal points and angles '.
In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated.
The ineptness and involved structure and some ambiguity notwith standing, the sense of the sentence is clear.
The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part.
What is more, the section uses the expressions 'the share of such person in the joint family ', 'the share of such person in the land ', 'the share of that person in the entire joint family property '.
Thus it is reasonable to hold that when the expression used is 'the share of such person in the point family. ', it is not ' confined to the share in the land only.
It really means his share 'in the entire joint family property '.
Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allot ment of the land bears to his share in the entire joint 684 family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act.
The necessary postulate is that there is a division in the entire joint family property.
Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties.
We are therefore in agreement with the interpretation adopted by the High Court.
In the cases under appeal there is no division of all the joint family properties.
Only the landed properties have been separated.
The appeals there fore fail and are dismissed.
In the circumstances, we direct parties to bear their costs.
S.R. Appeals dis missed.
| IN-Abs | Under section 32 of the Bombay Tenancy and Agricultural Lands Act 1948, the.
tiller of the land had the right to purchase the land tenanted to him.
Where the landlord is a minor or a widow or a person subject to any mental or physical disa bility, the right to purchase such land is postponed till their disability disappears and one year lapses thereafter.
But this embargo on the exercise ' of the right of purchase by the tenant does not operate as per proviso to section 32F(1)(a), if the property belongs to a joint family and there is a partition therein and the land is allotted to the person under disability.
In both the appeals, the family owned lands and other assets and there was a partition confined to agricultural land only.
In one case the share fell to a widow while in the other it fell to a minor, admittedly a disabled ' person within ' the meaning of s 32F(1).
Before the TribUnal and the High Court, the landlord claimed, therefore, protection under the proviso to clause (a) of section 32F(1) of the Act while the respondent contended that even if the agricultural land had been divided and other assets admittedly remained joint, the appellant was ineligible to claim the benefit of the proviso.
The High Court decided against the landlord and held: "The proviso is not satisfied unless the share of a disabled person is separated by metes and bounds in all the joint family property and unless the agricultural land allotted to him corresponds to his share in the entire property and is not in excess thereof '.
Dismissing the appeal to this Court, HELD: (1) The broad idea is to vest full ownership in the tenantry.
A compassionate exception is made in favour of a handicapped landlords who ' cannot prove their need to recover their land on approved grounds.
The Legislature conditioned the proviso by insisting that the separation should be from the whole joint family assets and not a tell tale transaction where agricultural lands alone are divided and secondly even where there iS a total partition only a fair proportion of the lands is allotted to the disabled person.
[682 C D F] What section 32F(1) insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; (b).
the Mamlatdar is satisfied that the share of the disabled person in the land is separated in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.
[681 G] (3) The imperative condition for the operation of the proviso is that there should be a total separation and so far as a disabled member is concerned, it must cover all the joint family properties.
The usage of the expressions "the share of such person in the joint .family", "the share of.
such person,, in the land", "the share of that person in the, entire joint family property in the section the clear statement in the proviso that the disabled person s share in the joint family must have been separated by metes and bounds and the statutory exercise expected of the Mam latdar by the proviso involving an enquiry into the share of the disabled person in the land and its value, the share of that person in the entire joint family properties, the proportion that the allot 679 ment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act lead to the neces sary postulate that it is not confined to the share of the land only but really means his share in the entire joint family property.
[683 E H, 684 A] (4) In the instant case there is no division of all the joint family property.
Only the landed properties have been separated.
[684 B] Observation: The reform of the inherited law making methodology may save court time and reduce litigation.
Our legislative process, not an unmixed blessing, works under such instant stress and ad hoc hephazardness that the whole piece of legislation when produced makes experienced draftsmen blush, as in the instant case, the involved drafting of section 32F has had its share in the marginal obscurity of meaning.
[682 B C]
|
Appeal No. 265 of 1972.
From the Judgment and Order dated the 24th August, 1971 of the Kerala High Court in I.T.R.No.
25 of 1969.
G.B. Pai, K.J. John for M/s Dadabhanji & Co., for the Appel lant.
B.B. ,Ahuja and R.N. Sachthey for Respondent.
The Judgment of the Court was delivered by GUPTA, J.
The question for decision in this case is whether the money contributed by the assessee, public limit ed company, for the construction of a new road in the area where its factory is located to improve transport facilities is capital expenditure or revenue expenditure.
The assess ment year in question is 1964~65, the relevant accounting period being the financial year ended March 31, 1964.
The assessee company is engaged in the manufacture of chemicals; it had been receiving and despatching materials required for and produced in its factory through lorries.
The assessee along with three, 716 other public undertaking approached the Government of Kerala for laying a new road from kalamasseri to Udyogamanndal; this area where the assessee 's factory is situate was not at the material tune served by pucca roads.
It was agreed that the Government of Kerala would bear the cost of the acquisition of the land and 25 per cent of the cost of construction.
The total cost to be shared by the four companies was Rs. 1,04,550/ and the assessee 's share came to Rs. 26,100/ .
The assessee company sought to deduct this amount from its total income c/aiming this as revenue expenditure for the year in question.
The Income tax Officer disallowed the claim holding that the assessee 's contribution was capital expenditure.
The Appellate As sistant Commissioner took the same view.
The Appellate Tribunal, mainly relying on the decision of the Calcutta High Court in Commissioner of Income tax vs Hindustan Motors Limited,(1) held that the assessee was entitled to deduct the amount as revenue expenditure.
At the instance of the Commissioner of Income tax, Kerala, Ernakulam, the Tribunal referred the following question to the High Court of Kerala under section 256(1) of the Income Tax Act,1961: "Whether, on the facts and in the circum stances of the case, the Appellate Tribunal was legally justified in allowing the expendi ture of Rs. 26,100/ being the respondent 's contribution to government for constructing a road as a permissible deduction under section 37(1) 0f the Income Tax Act, 1961." The High Court held that the assessee in this case ob tained an advantage of an enduring nature by the construc tion of the road and, therefore, the amount contributed was capital expenditure.
The High Court accordingly answered the question in negative and against the assessee.
In this appeal, brought on a certificate under section 261 of the Income Tax Act, 1961, the assessee challenges the correct ness of the answer given by the High Court to the question.
The authorities both in this country and in England have pointed out the difficulties in formulating precise rules for distinguishing capital expenditure from revenue expendi ture.
The line of demarcation has been found to be very thin.
Certain broad tests have however been laid down, and of them the test suggested by viscount Cave, L. C., in Atherton vs British Insulated and Helsby Cables Limited(2) appears to have been largely accepted in this country.
This Court in Assam Bengal Cement Company Limited vs Commis sioner of Income tax, West Begnal(3); Sitalpur Sugar Works Limited vs Commissioner of Income tax, Bihar and Orissa( ') and a number of other decisions has adopted the test as laid down in Atherton 's case: to refer again to these often quoted lines from Viscount Cave 's Judgment "when an expendi ture is made, . . with a view to bringing into existence an asset or an advantage for the enduring benefit of a (1) (2) (1925) 10 Tax Cases 155.
(3) (4) 717 trade, I think that there is very good reason (in the ab sence of special circumstances leading to an opposite con clusion) for treating such an expenditure as properly at tributable not to revenue but to capital".
Referring to Atherton 's case and certain other authorities on the dis tinction between capital expenditure and revenue expenditure and the tests to be applied, this Court in Assam Bengal Cement Company Limited vs Commissioner of Income tax(1) observed: "If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure.
If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure.
If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital of the income of the concern or whether tire payment was made once and for all or was made periodically.
The aim and object of the expenditure would determine the character of the expenditure whether it is a capital ex penditure or a revenue expenditure.
The source or the manner of the payment would then be of no consequence.
It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital.
If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circu lating capital it would be of the nature of revenue expenditure.
" In the case before us, the High Court applied viscount Cave 's test and found that the expenditure made by the assessee brought into existence an advantage for the endur ing benefit of the assessee 's trade and accordingly held that this was capital expenditure.
Each case turns on its own facts.
It is not disputed here that the correct test has been applied.
Did the money spent by the assessee on construction of the new road secure for it an enduring benefit, or was it necessary for running its business? On the facts of the case the position seems to be clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commis sioner of Income tax vs Hindustan Motors Ltd.(2) on which the appellate tribunal relied, is clearly distinguishable on facts; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessee 's (1) (2) (1968)68 I.T.R. 301.
718 business.
Mr. Pai, learned counsel for the appellant, has relied on the decision of this CoUrt in Lakshmiji Sugar Mills Company Private Limited vs Commissioner of Income tax, New Delhi(1), to contend that even the expenditure on the construction of roads could be revenue expenditure and not expenditure of a capital nature.
In Lakshmiji Sugar Mills case the assessee was a private limited company carrying on the business of manufacture and sale of sugar.
Under the provisions of the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee company was obliged to contribute certain amounts for the development of roads which were originally the property of the government and remained so even after the improvement had been made.
Apart from the fact that in this case the expenditure incurred was under a statutory compulsion, there was no finding that the roads were newly made.
On the facts of that case this Court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessee 's business.
Lakshmiji Sugar Mills(1) case is quite different on facts from the one before us and must be con fined to the peculiar facts of that case.
On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature.
The appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.
| IN-Abs | The appellant assessee is a public limited company who spent Rs.26,100/ for the construction of a new road for improving transport facilities in the area where its factory is located and sought to deduct this amount from its total income claiming this as revenue expenditure for the year.
The claim was disallowed by the Income tax Officer and the Appellate Assistant Commissioner.
The Appellate Tribunal held that the amount could be deducted as revenue expendi ture but at the instance of the respondent referred the matter to the High Court under section 256(1) of the Income Tax Act, 1961, where it was decided against the appellant.
Dismissing the appeal, the Court, HELD: The line of demarcation between capital expendi ture and revenue expenditure has been found to be very thin.
According to the test suggested in Atherton 's case by Vis count Cave, L.C. by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business.
The expenditure incurred was, therefore of a capital nature.
F II & 718 D] Atherton vs British Insulated and Helsby Cables Ltd. [1925] 10 Tax Cases 155: Assam Bengal Cement Co. Ltd. vs Commissioner of Income Tax, West Bengal and Sitalpur Sugar Works Ltd. vs Commissioner of Income Tax.
Bihar and Orissa , applied.
Commissioner of Income tax vs Hindustan Motors Ltd. and Lakshmiji Sugar Mills Co. (P) Ltd. vs Commissioner of Income tax, New Delhi , distinguished.
|
il Appeal No. 1249 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 23 3 1976 of the Bombay High Court in C. No. 449/75 from Original Decree.
F.S. Nariman, I. M. Patel and B.R. Agarwala for the Appel lants.
R.D. Hattangadi, George Kurien and (Mrs.) Urmila Sirur for.
No. 1.
K. Singhvi and V.N. Ganpule for the applicant/Inter vener.
The Judgment of Court was delivered by This appeal is by special leave under Article 136 of the Constitution by the two appellants against the judgment of the 888 Bombay High Court dismissing their appeal against the judg ment of the Additional Motor Accidents Claims Tribunal for Greater Bombay and confirming the award passed by the tribu nal in favour of the respondents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs. 20,000 under section 110E of the referred to as the Act after giving opportunity to the parties.
The applicant in Application No. 727 of 1969 before the Motor Accidents Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the respondent in this appeal.
On 14th April, 1969 at about 1.00 p.m. the respondent was driving his car No. MRC 4450 towards Fort side on Dr. Annie Besant Road.
With him was sitting on the left side in the front seat Malati M. Deshmukh, his nurse.
The road has stone dividers in the middle of the road.
When the car approached Lotus cinema the truck owned by the appellants and insured with the Insurance Company who were opposite parties 1 to 3 before the Motor Accidents Claims Tribunal came from the opposite direction at a high speed and dashed against the right side of the car.
Due to the impact the car was damaged and the 1st respondent and Malati M. Deshmukh were injucted.
Re spondent 1 had to undergo treatment.
He was operated on the day of the accident itself and was patient in his own Nursing Home for a month till 15th May, 1969.
According to him his right arm was operated and kept in plaster and that he had become permanently disabled in discharging his duties as a surgeon and that he had incurred a loss during the closure of the Nursing Home rind loss of income due to permanent injury along with other claims.
He claimed a sum of Rs. 3 lakhs by way of general and special damages with interest thereon from the date of his application.
The owners of the vehicle fried a written statement refuting the claim of the applicant.
According to them while the motor lorry was proceeding from Haji Ali towards Worli, they had taken all precautions to keep the lorry in road worthy condition and that at the material time the axle brake ring of the motor lorry came out and the driver therefore lost control of the vehicle and because of this defect which can develop in a running car the driver lost control of the ' steering wheel.
According to them the lorry prior to the accident was being driven at a moderate speed with due care and caution.
They contended that the accident did not occur on account of rash and negligent driving on the part of the driver.
They also denied the claim of various items of compensation made by the applicant.
The Motor Accidents Claims Tribunal framed four issues.
The first 2 issues were whether the applicant had proved that the driver of the lorry was driving the vehicle in rash and negligent manner and whether the opposite party had proved that at the time of the accident the axle brake ring of the motor lorry came out and the driver lost control of the motor lorry.
The other 2 issues related to the ques tion as to whether the applicant received the injuries as a result of this accident and whether he was entitled to the compensation claimed by him.
889 The applicant examined himself and Malati M. Deshmukh who was travelling with him at the time of the accident regarding the incident.
He also examined P. Ws 2 and 3, P.W. 2 a nurse to prove his income from his profession and P.W. 3 a doctor who treated him.
On behalf of the appellant 6 witnesses were examined in support of their case that the accident was due to a mechanical failure and not due to any rashness or negligence on the part of the driver.
The Tribunal after elaborately discussing the oral and documentary evidence adduced before it found that the acci dent was due to the rash and negligent driving of the driver of the lorry and the defence set up that the accident was due to mechanical failure of the lorry was unacceptable.
The Claims Tribunal accepting the evidence of the appli cant and a Customs Officer, Mr. Jawakar, who was examined as D.W.4 on the side of the appellants, came to the conclusion that when the doctor was in the traffic lane nearer to the road divider the lorry crossed the road divider and hit the car.
The defence witness himself stated that the lorry came after crossing the central barricade.
The lorry went off the track and went on the wrong side and collided with the oncoming car of the applicant who was in his car.
Refer ring to his notes the witness stated that the right side of the lorry went and hit the right side of the car of the applicant.
The portion of the lorry upto the driver 's seat collided with the right side of the car.
Both the wheels of the front side of the lorry had crossed the central reservation tract and so also the right rear wheel was on the wrong side and only the left rear wheel was just near the edge of the central reservation tract towards Lotus cinema.
On the face of the evi dence of the doctor and their own witness D.W.4 who was travelling in the lorry there could be no denying the fact that the lorry crossed the middle of the road.
Relying on the evidence of the two witnesses as well as the doctrine of res ispa 1oquitur the Claims Tribunal right ly found that the applicant had established rash and negli gent driving on the part of the driver and the lorry.
The Accidents Claims Tribunal has also discussed elaborately the defence set up on behalf of the owners of the lorry and rejected it.
The plea that was taken in the pleadings was that at the time of the accident "Axle Brake Ring" of the lorry came out.
The expert examined on behalf of the owner, Jimmy Dara Engineer, D.W. 6, stated that he had never heard of any such part as axle brake ring and he has never seen such a part.
The owners subsequently explained that what they meant by "Axle Brake Ring" was drag link on the rod end.
The Claims Tribunal also referred to the evidence of the expert examined on behalf of the owners and remarked that the nut on the pin could not be blown off all of a sudden and that the driver, unless he was negligent, could feel the change if there was anything wrong with the drag link end and can stop the vehicle immediately.
Rejecting the evidence of the driver and relying on the evidence of the expert on the side of the defence that even if there was any defect the vehicle could be stopped within 4 or 5 feet and need not cover the distance which it did, the Claim Tribunal also found that the defect which the defence wit ness, Motor Vehicle Inspector Partapsingh Chavan, D.W.I. saw when he examined the 890 lorry on 22nd April, 1969, could not be accepted as the owners of the lorry could have played mischief and created evidence before inspection on 22nd April, 1969.
Criticising the conduct of the owners as unworthy of their status the Claims Tribunal totally rejected the defence.
Regarding the compensation the Claims Tribunal fixed the amount at Rs.1,43,400 together with interest at 6 per cent.
This sum was apart from a sum of Rs.500 which was found payable to Malati M. Deshmukh who had sustained injuries.
The Claims Tribunal directed the owners as well as the insurers jointly to pay the amount, to the respondent Dr. Balkrishna Ramachandra Nayan.
It also directed the oppo site parties and insurers to pay Rs. 1000 as costs and Rs.100 as costs of Malati M. Deshmukh.
The Claims Tribunal fixed a sum of Rs. 73,779 as the loss sustained by the doctor for a period of 4 years from the date of the accident.
It also for a subsequent period of 7 years fixed the future loss at Rs. 9,000 a year and a total amount of Rs. 63,000.
In addition it awarded a sum of Rs. 5,000 for discomfort and inconvenience suffered by the doctor.
Thus the total compensation that was granted amount ed to Rs. 1,43,400.
As already stated the interest was awarded from the filing of the application till payment.
The insurance company as well as the owners of the lorry preferred appeal against the award of the Tribunal in Appeal No. 449 of 1975 before the High Court of Bombay.
Though the appeal was filed on behalf of the insurance company and the owners of the lorry, during the hearing of the appeal it was contended on .behalf of the insurance company that in any event the liability of the insurance company under the policy could not exceed Rs.20,000.
The High Court on the question of whether there was negligence on the part of the driver of the lorry or not found itself in complete agreement with the Claims Tribunal and observed that it was for the lorry driver and owners to establish as to how the lorry crossed the road dividers, went on the wrong side and mounted on the Fiat Car coming 'from the opposite direction.
Agreeing with the Tribunal it found that the driver was negligent.
The High Court concurred with the reasons.
and findings of the Tribunal.
It also held in the Circumstances of the case that the principle res ipsa loquitur applied.
The High Court also rejected the defence taken by the owners that the injury was due to a mechanical defect and not due to the negligence.
After referring to the evidence and the reasoning of the Tribunal.
on the defence set up by the owners the High Court came to the conclusion that the plea about the breaking of the tie rod was not proved satisfactorily by the owners.
The High Court regarding the defence raised found itself .in complete agreement with the conclusion arrived at by the Tribunal observing that the Tribunal rightly disbelieved the defence plea and came to the conclusion after careful consideration of the evidence of the driver, Customs Officer and other evidence in the case that it was the driver who was negli gent.
891 Regarding the quantum of damages the High Court ex pressed its opinion that the Tribunal had made best efforts and tried to determine the compensation in a just manner on the facts and circumstances of the case.
It confirmed the amount as awarded by the Tribunal and dismissed the appeal.
The High Court dismissed the appeal of the owners and the insurance company and confirmed the award passed by the Tribunal.
But it gave liberty to the insurance company to apply to the Claims Tribunal on depositing Rs. 20,000 with interest from the date of the application to the date of the deposit for determination of the question that the liability of the insurance company is limited only to Rs. 20,000.
The High Court directed the Tribunal to decide the question of the liability of the insurance company on its application under section.
110E by giving opportunity to the parties to put forward their cases.
Insurance company was directed to pay the costs of all the parties.
It also provided that the claimant was at liberty to withdraw Rs. 20,000 with interest when deposited by the insurance company.
The order also made it clear that the right of the applicant to recover the balance of the awarded amount from the other party or from the insurance company will not in any way be affected.
The appeal to this court is preferred by the owners.
The insurance company is impleaded as the second respondent in the appeal before us.
Mr. Nariman, the learned counsel appearing for the owners submitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry and therefore the ques tion will have to be gone into by this Court or remanded for fresh disposal.
We find that the High Court has given a clear finding in paragraph 30 of its judgment that the Tribunal rightly disbelieved the plea and held that it was the.
driver who was negligent and that they fully concur with the reasons and findings of the learned Member of the Tribunal.
In the face of the clear finding we are unable to accept the plea of the learned counsel that this question was not gone into by the High Court.
We find ourselves in complete agreement with the finding of the Tribunal and the High Court that it was due to rash and negligent driving of the lorry that the car in which the applicant and Malati M. Deshmukh were travelling was hit causing injuries to both of them.
We accept the testimony of the doctor and D.W. 4 Jawakar that the lorry crossed the road dividers, ran into the wrong side and hit the car which was driven by the applicant.
We have no hesitation in accepting the concur rent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver.
We have also no hesitation in reject ing the testimony of the defence that there was some mechan ical defect which resulted in the tie rod end breaking.
We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them.
In this con nection we may also point out that in order to succeed in a 9 206SCI/77 892 defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition.
No such attempt was made to establish that all necessary precautions were taken to keep the lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners.
In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reason able care.
The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care.
The law on this subject has been laid down in Hen derson vs Henry E. Jenkins & Sons.(1).
In that case the lorry driver applied the brakes of the lorry on a steep hill but they failed to operate.
As a result the lorry struck and killed a man who was emerging from a parked vehicle.
The defence was that brake failure was due to a latent defect not discoverable by reasonable care on driver 's part.
It was found that the lorry was five years old and had done at least 150,000 miles.
The brakes were hydrauli cally operated.
It was also found after the accident that the brake failure was due to a steel pipe bursting from .7mm.
to .1mm.
The corrosion had occurred where it could not be seen except by removing the pipe completely from the vehicle and this had never been done.
Expert evidence showed ' that it was not a normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded.
The corrosion was unusual and unexplained.
An expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea.
The House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been dis charged.
The defect remained undiscovered despite due care As the evidence had shown that something unusual had hap pened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusual occurrence to cause the breakdown.
(See Bingham 's Motor Claims Cases Seventh Ed., p. 219).
The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that de spite such care the defect remained hidden.
In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a running vehicle resulting in the driver 's losing control of the steering wheel.
Though it was stated that all precautions were taken to keep the lorry in a road worthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent pleaded and could not have been discovered by the use of reasonable care.
This lack of plea is in addition to the lack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.
(1) [1970] A.C.282[1969] 3 All E.R. 756 893 Mr. Nariman then submitted that the quantum of compensa tion awarded was very high.
He submitted that even accord ing to the figures relied on by the High Court it was in error in coming to the conclusion that for a period of 4 years from the date of the accident the claimant has suf fered a damage of Rs. 73,779.
The learned counsel submit ted that though during the first year there was a loss of Rs. 3,530 in subsequent years he earned various amounts and in one year he earned Rs. 7,981 which would mean that during subsequent years his loss would not have been.
more than Rs.10,000 and as admittedly the Nursing Home was kept as a going concern the award of Rs. 10,000 per year for the four years would be very high.
We have considered this conten tion carefully but taking all the circumstances into account we do not feel called upon to interfere with the quantum arrived at by the Tribunal and confirmed by the High Court.
The learned Counsel also submitted that the provision for Rs. 63,000 for the 7 years as the likely loss due to the doctor 's disability is also very high.
In this case also we do not feel called upon to interfere with the quantum arrived at by the Tribunal as well as the High Court.
Last ly, the learned counsel submitted that in any event the interest awarded from the date of the application is not justified.
We do not think we will be justified in interfer ing with the amount of interest awarded by the High Court from the date of the filing of the application.
On the above findings we confirm the award passed by the Claims Tribunal in favour of the applicant/respondent No. 1 for Rs. 1,43,400 with interest at 6% per annum from the date of the filing of the application and also a sum of Rs.500 granted to Malati M. Deshmukh and the costs awarded.
The liability of the owners and the insurance company will be joint and several and the respondent would be at liberty to proceed against either or both of them to realise the amount awarded in his favour.
We have now to consider the direction given by the High Court regarding the determination of the liability as be tween the insurance company and the owners.
The owners and the insurance company were represented by the same counsel before the Tribunal and before the High Court the learned counsel on behalf of the insurance company pleaded that its liability is limited to Rs. 20,000 only.
The High Court has given liberty to the insurance company to apply on depositing Rs. 20,000 with interest as directed for determi nation of the question that the liability of the insurance company is limited to Rs. 20,000.
The High Court also directed the Tribunal to decide the liability of the insur ance company on the insurance company filing such an appli cation after giving notice to all the parties.
The insur ance company has not appealed against the judgment and decree of the High Court and we see no reason for interfer ing with the order.
On the insurance company complying with the directions of the High Court by depositing Rs. 20,000 with interest as specified the matter will be remitted to the Tribunal for determination of the question whether the liability of the insurance company is limited to Rs.20,000 only.
It is made clear that so far as the award made in 894 favour of the applicant/respondent is concerned he will be at liberty to proceed against the owners as well as the insurance company jointly and severally.
With these direc tions the appeal is dismissed with the cost of the first respondent.
This should normally conclude the judgment but we feel it desirable that we must deal with the question of law that has been dealt with at considerable length by the High Court as to whether it is incumbent on the claimant to prove negligence before he would become entitled to compensation.
The High Court after concurring with the findings of the Tribunal and holding that the driver was negligent proceeded to state that it would not have been necessary for them to say anything more but for the fact that taking into account the importance of matter and in public interest it would be appropriate to express its view that it is not necessary to prove negligence on the part of a driver before claiming compensation.
Both the learned Judges have written lengthy judgments fully discussing the matter and have come to the conclusion that the fact of an injury resulting from the accident involving the use of a car on the public road is the basis of a liability and that it is not necessary to prove any negligence on the part of the driver.
We find that a Bench of the Andhra Pradesh High Court has held in Haji Zakaria and Others vs Naoshir Cama and others (1) that the liability of the insured and consequently of the insurer to compensate a third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury etc. has been caused by rash and negligent driving.
Though this question does not arise in this appeal as the two High Courts have expressed an opinion which in our view has no basis either in the Legislative history or on a construction of the relevent provisions of the Motor Vehi cles Act we feel it necessary to state the position of law.
The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort.
Regarding the negli gence of the servant the owner is made liable on the basis of vicarious liability.
Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he.
was negli gent.
The number of the vehicles on the road increased phenomenally leading to increase in road accidents.
To remedy the defect various steps were taken.
In England the owners of the vehicle voluntarily insured against the risk of injury to other road users.
With ' the increase of traffic and accidents it was found that in a number of cases hardship was caused where the person inflicting the injury was devoid of sufficient means to compensate the person afflicted.
In order to meet this contingency the Road Traffic Act, 1930, The Third Parties (Rights against Insur ers) Act, 1930 and the Road Traffic Act, 1934 were enacted in England.
A system of compulsory insurance was enacted by the Road Traffic Act, 1930.
Its object was to reduce the number of cases where judgment for personal injuries (1) A.I.R. 1976 A.P. 171. 895 obtained against a motorist was not met owing to the lack of means of the defendant in the running down action and his failure to insure against such a liability.
It is suffi cient to state that compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur.
The Indian law introduced provisions relating to compulsory insurance in respect of third party insurance by introducing Chapter VIII of the Act.
These provisions almost wholly adopted the provisions of the English law.
The relevant sections found in the three English Acts, Road Traffic Act, 1940, the Third Parties (Right against Insur ers) Act, 1930 and the Road Traffic Act, 1934 were incorpo rated in Chapter VIII.
Before a person can be made liable to pay compensation for any injuries and damage which have been caused by his action it is necessary that the.
person damaged or injured should be able to establish that he has some cause of action against the party responsible.
Causes of action may arise out of actions for wrongs under the common law or for breaches of duties laid down by stat utes.
In order to succeed in an action for negligence the plaintiff must prove (1) that the defendant had in the circumstances a duty to take care and that duty was owed by him to the plaintiff, and that (2) there was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff.
The master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment.
Apart from it in common law the master is not liable for as it is often said that owner of a motor car does not become liable because of his owning a motor car.
The purpose of enactment of Road Traffic Acts and making insurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability.
The safeguard is provided by imposing certain statutory duties namely the duty not to drive or permit a car to be driven unless the car is covered by the requisite form of third party insurance.
Section 94 of the Act, provides that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the Chapter.
Section 95 of the Act is very important and that specifies the requirements of policies and limits of liabil ity.
Section 95(1)(a) and (b) of the Act are extracted.
They run as follows: "95.
(1) In order to comply with the requirements of this Chapter, a policy of insurance.
must be a policy which (a) is issued by a person who is an authorised insurer or by a co operative socie ty allowed under section 108 to transact the business of an insurer, and 896 (b) insures the person or classes of persons specified in the policy to the extent speci fied in sub section (2) (i) against any liability which may be incurred by him in respect of the death or of bodily injury to any person or damage to any property of a third party caused by or aris ing out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: * * * * *" Under section 95(1)(b)(i) of the Act it is required that policy of insurance must be a policy which insures the person, against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
It may be noted that what is intended by the policy of insurance is insuring a person against any liability which may be incurred by him.
The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury.
The accident to which the owner or the person insuring is liable to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance.
It is therefore obvious that if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to. be covered by the insurance.
The li ability contemplated arises under the law of negligence and under the principle of vicarious liability.
The provisions as they stand do not make the owner or the insurance company liable for any bodily injury caused to a third party arising out of use of the vehicle unless the liability can be fas tened on him.
It is significant to note that under sub clause (ii) of section 95(1)(b) of the Act the policy of insurance must insure a person against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
Under section 95 (1)(b) clause (ii) of the Act the liability of the person arises when bodily injury to any passenger is caused by or use of the vehicle in a public place.
So far as the bodily injury caused to a passenger is concerned it need not be due to any act or liability in curred by the person.
It may be noted that the provisions of section 95 are similar to section 36(1) of the English Road Traffic Act.
1930, the relevant portion of which is to the effect that a policy of insurance must be policy which insures a person in respect of any liability which may be incurred by him in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle on road.
The expression "liability" which may be incurred by him" is meant as covering any liability arising out of the use of the vehicle.
It will thus be seen that the person must be under a liability and that liability alone is cov ered by the insurance policy.
897 Section 96 of the Act also makes the position Clear.
It provides that when a judgment in respect of such a liability as is required to be covered by a policy is obtained against any person insured by the policy, then the insurer shall pay to the person entitled the benefit of the decree as if he were a judgment debtor.
The liability is thus limited to the liability as is covered by the policy.
The main contention of Mr. Hattangodi, who supported the view of the High Court that negligence need not be proved is that Chapter VIII of the Act is a consolidating and amending Act relating to motor vehicles and their use on a public place and as such it contains the entire law, procedural as well as substantive, and that the common law or law of torts is no more applicable and if death or bodily injury arises out of the use of motor vehicles in a public place a liabil ity arises.
Strong reliance was placed by him on section 110A of the Act which provides for application for compensa tion arising out of an accident to the Claims Tribunal.
The learned counsel would submit that under section 110B the Claims Tribunal, after holding an inquiry, may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom the compensation shall ' be paid.
According to counsel when an injury is caused by the use of the vehicle in a public place the Claims Tribunal is at liberty to award an amount of compensation which appears to it to be just.
This plea ignores the basic requirements of the owner 's liability and the claimant 's right to receive compensation.
The owner 's liability arises out of his failure to discharge a duty cast on him by law.
The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation.
If a person is not liable legally he is under no duty to.
compensate any one else.
The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims.
The general law applicable is only common law and the law of torts.
If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just.
The plea that the Claims Tribunal is entitled to award compensa tion which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results.
Section 110(1) of the Act empowers the State Government to constitute, one or more Motor Accidents Claims Tribunals for such area as may be specified for the purpose of adjudi cating upon claims for compensation in respect of accidents involving the death or bodily injury to persons.
The power is optional and the State Government may not constitute a Claims Tribunal for certain areas.
When a claim includes a claim for compensation the claimant has an option to make his claim before the Civil Court.
Regarding claims for compensation therefore in certain eases Civil Courts also have jurisdiction.
If the contention put forward is accept ed so far as the Civil 898 Court is concerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable.
The concept of owner 's liability without any negligence is opposed to the basic principles of law.
The mere fact that a party received an injury arising out of the use of a vehicle in a public place, cannot justi fy fastening liability on the owner.
It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed.
We cannot perceive by what reasoning the owner of the car could be made liable.
The proof of negligence remains the lynch pin to recover compensation.
The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance.
In Halsbury 's Laws of England, 3rd Ed., Vol. 32, at paragraph 751 at p. 366 the nature of insurance required is stated as follows : "The conditions to be fulfilled in order to render the use of a motor vehicle lawful are (1) that there must be a policy of insur ance.
in force in relation to the use of the vehicle on a road, and (2) that it must be a policy complying with the relevant statutory requirements.
" At paragraph 752 at page 366 the general nature of liabili ties required to be covered are stated as under: "In order to comply with the statutory requirements, a policy must provide insurance cover in respect of any liability which may be incurred by such person, persons or classes of persons as are specified in the policy, in respect of the death of, or bodily injury to, any person (subject to specific exceptions) caused by, or arising out of the use of the vehicle on a road." The authorised insurers issuing a policy pursuant to the statutory requirements are obliged to indemnify the person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or classes of persons.
***" (Paragraph 758 at p. 369).
These passages clearly indicate that the nature of the liability required to be covered is the liability which may be in curred by or arising out of the use of a vehicle on a road by the person.
A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute.
In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant.
The necessity to provide effective means for compensating the victims in motor accidents should not blind us in determining the state of law as it exists today.
Justice Vaidya in this judgment under appeal after referring various decisions expressed his view as follows : "It is not necessary to discuss all these cases because, in any view, in none of those cases was the question agitated 899 as to what exactly was meant by tort in the context of automobile accidents and injuries resulting.
therefrom, for which more often than not human minds, hands or legs are not always accountable, in the later half of the twentieth century.
The question has engaged the minds of jurists all over the common law world . " The learned Judge proceeded further to observe that whether we apply the test of torts or not the liability to pay compensation arises when the injuries are caused by the use of the motor vehicle and the Tribunal can adjudicate upon the liability and determine just compensation.
The learned Judge further observed: "In my opinion, public good re quires that everyone injured, viz., by the use of motor vehicle, must immediately get compensation for the injury.
Every person has a right to safety and security of his person irrespective of fault or negligence or carelessness or efficient functioning of the motor vehicle.
Every person has a right to claim compensation so that is the only way of remedying the injury caused to him in a modern urbanised, industrialised and automobile ridden life.
" In a separate judgment Justice Mridul has expressed himself in the same tenor.
The learned Judge after referring to section 95(1)(b) (i) and (1)(b)(ii) of the Act observed that perimeters of liability in clauses (i) and (ii) must be held to be the same because to both the liability of the owner or the driver exists and is made compulsorily insura ble.
The learned Judge while noting the difference in the wording of the two, clauses observed that it is inconceiva ble that the legislature would intend absolute liability in cases covered by clause (ii) and not in cases covered by clause (i).
The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner 's liabili ty for negligence of his servant and is based on a complete misreading of the provisions of Chapter VIII of the Act.
The High Court 's zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation.
Equally unacceptable is the view of the Bench of the Andhra Pradesh High Court in Haji Zakaria and others vs Nashir Cama and others(1), wherein the court concluded without any hesitation that the liability to compensate arises when death or bodily injury to any person or damage to any property of a third party is caused by or arising out of the use of the vehicle in a public place and to infer the qualifications or limitations that such death or bodily injury should have been caused before such liability arises only on account of rash and negligent driving would amount to introducing something which is not there and would be violating and transgressing the Clear provisions of the statute and intention of the legislature.
(1) A.I.R. 1975 A.P. 171.
900 The Patna High Court in New India Assurance Co. Ltd. vs Sumant Devi and Others(1) held that the liability of the insurance company is absolute but is only limited to the extent provided by the insurance policy.
As against this view all the other High Courts have held that the liability to compensate arises only on a finding of negligence.
It may not be out of place to mention that those automobile accidents are subject to the law of negligence.
Modern proposals consistently favour the Social Insurance model under which benefits are payable directly by the fund with out any reference at all to the injurer while retaining an option for the victim to claim either limited benefits on a nonfault basis or full damages for negligence.
Consistent with this line of thinking is the judgment of the Kerala High Court in Kesavan Nair vs State Insurance Officer(2), where Justice Krishna Iyer expressed himself thus: "Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liabili ty must be cast on the insurers.
" Modern legislation has also provided insurance cover for all air and rail passen gers and recently by amendment of section 95 of the Act against death or bodily injury to passengers of a public service vehicle caused by or arising out of the use of a vehicle in a public place.
In a recent judgment of Madras High Court a Division Bench is A.A.O. Nos.
607 of 1973 and 296 of 1974 M/s.
Ruby Insurance Co. Ltd. vs V. Govindaraj and others, delivered on 13th December, 1976, has suggested the necessity of having social insurance to provide cover for the claimants irre spective of proof of negligence to a limited extent say Rs.250 to Rs. 300 a month.
It has also suggested that instead of a lump sum payment which does not often reach the claimants a regular monthly payment to the dependants by the nationalised insurance company or bank would be desira ble.
Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today.
We conclude by stating that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner of the insurance company could be held to be liable for the payment compensa tion in a motor accident claim case.
But as we have found that the vehicle owner was liable for negligence of the driver and have upheld the amount of damages awarded, we dismiss this appeal with cost to the first respondent.
P.B.R. Appeal dismissed.
| IN-Abs | While the respondent was travelling in his car, the appel lant 's truck, driven by a driver, hit the car and caused injuries to the respondent and damaged the car.
The Claims Tribunal awarded compensation to the respondent, and the High Court upheld the Tribunal 's award.
In the course of the judgment the High Court, however, observed that every person has a right to security and safety of his person irrespective of the fault or negligence or carelessness and that every person has a right to claim compensation, irre spective of proof of negligence on the part of the driver.
It further observed that the perimeters of liability in cls.
(i) and (ii) of section 95(1)(b) must be held to be the same because in both, the liability of the owner of the driver exists and is made compulsorily insurable and that it could not be said that the legislature intended absolute liability in cases covered by cl.
(ii) and not in cases covered by cl.
HELD: Proof of negligence is necessary before the owner or the insurer could be held liable for payment of compensa tion in motor vehicle accident claims.
The High Court 's views are opposed to basic principles of the owner 's liabil ity for negligence of his servant and are based on a com plete misreading of the provisions of Chapter VIII of the .Motor Vehicles Act.
[900 F] 1.
Before a person can be made liable to pay compensa tion for any injuries and damage caused by his action.
it is necessary that the person injured should be able to establish that he has some cause of action against the party responsible.
In order to succeed in an action for negligence the plaintiff must prove (1) that the defendant had, in the circumstances, a duty to, take care and that duty was owed by him to the plaintiff and (2) that there .was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff.
The master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment.
[895 C D] 2(a) The purpose of making insurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability.
The safeguard is provided by imposing certain statutory duties, namely, the duty not to.
drive or permit a car to be driven unless the car is covered by third party insurance.
1895 F] (b) Under section 95(1)(b)(i) of the Act, the policy of insurance must be a policy which insures against any liabil ity which may be incurred in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance.
It is, therefore, obvious that if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance.
The liabil ity contemplated arises under the law of negligence and under the principle of vicarious liability.
The provisions of the section do not make the owner or the insurance compa ny liable for any bodily injury caused to a third party arising out of the use of the vehicle unless the liability can be fastened on him.
[896 D F] 887 (c) Under sub cl.
(ii) of section 95(1)(b) of the Act the policy of insurance must insure a person against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
So far as the bodily injury caused to a passenger is concerned it need not be due to any act or liability incurred by the person.
The expression "liability which may be incurred by him" in sub. cl.
(i) is meant to cover any liability arising out of the use of the vehicle.
Therefore, the person must be under a liability and that liability alone is covered by the insurance policy.
[896 F H] (d) The owner 's liability arises out of his failure to discharge a duty cast on him by law.
The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obliga tion.
If a person is not liable legally he is under no duty to compensate any one else.
The Claims Tribunal is a tribu nal constituted by the State Government for expeditious disposal of the motor vehicles claims.
The general law applicable is only common law and the law of torts.
If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the tribunal is authorised to determine the amount of compensation which appears to be just.
The plea that the Claims .Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence, if accepted, would lead to strange results.
[897 E F] 3.
The power to constitute one or more Motor Vehicle Claims Tribunals under section 110(1) is optional and the State Government may not constitute a Claims Tribunal for certain areas.
When a claim includes a claim for compensation, the claimant has an option to make his claim before the Civil Court.
In claims for compensation, therefore, in certain cases, Civil Courts also have jurisdiction.
If the contention put forward is accepted so far as the Civil Court is concerned, it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable The concept of owner 's liability without any negligence is opposed to the principles of law.
The mere fact that a party received an injury arising out of the use of a vehicle in a public place, cannot justify fastening liability on the owner.
It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed.
In such cases, the owner cannot be made liable.
Proof of negligence remains the lynch pin to recover compensation.
[897 H; 898 A B] Haji zakariaand others vs Naoshir Cama and others A.I.R. 1976 A.P.171 and New India Assurance Co Ltd. vs Sumitra Devi and others , not approved.
Kesavan Nair vs State Insurance Officer, and M/s. Ruby Insurance Co. Ltd. vs V. Govindaraj and others, A.A.O. 607 of 1973 and 296 of 1974 decided by the Madras High Court on December 13, 1976 referred to.
|
ivil Appeals Nos.
1357 58 of 1975.
(Appeals by special leave from the judgment and order dated 4 2 1974 of the Orissa High Court in O.J.C. No. 410/1971).
M.K. Ramamurthi and B. Parthasarathi, for the appellants.
Gobind Das, N.V. Rama Das and G. Narayana Rao, for respondents 1 8 in CA 1357/75.
There was a private college known by the name of Khallikote College.
This is an institution which grew out of a school established 775 in 1856.
The management had to meet with financial crisis in the past and obtained financial help in the shape of liberal endowment under a trust deed from the then zamindar of Khallikote.
The institution, it is stated, became one of the premier colleges in the town of Behram pur, Ganjam District, Orissa.
The College was at first affiliated to the Andhra University at Waltair and thereafter to the Utkal University, and since 1967 it has been affiliated to the Behrampur University.
The Government of Orissa took over the management of the College on and from March 9, 1971, and a formal agreement was executed between the managing committee of the College and the Governor of the State.
The College was taken over by the Government in pursuance of the unanimous resolution of the managing committee of February 18, 1970, and the transfer to the Government was of all the assets of the College but without any liability.
The managing committee continued to be liable for the outstanding liabilities, if any, of the College for which Government was not liable.
The College after the take over was administered as a Government College.
The eight writ petitioners in the High Court (Respond ents herein) were working as Readers in different faculties in the said College on the date of the aforesaid transfer in the scale of pay Rs.510 860/ whereas the Government scale for Readers was Rs.600 1000/ .
On the date of take over, namely, March 9, 1971, each of the respondents was drawing a salary somewhere less than Rs.600/ ; three of them less by only Rs.30/ .
The material particulars of the ten Readers of the College who were all earlier in private employment, includ ing the eight Respondents, are as follows (Annexure I, Volume 1I of the Paper Book): Sl.
Name Date of Date of Date of Confirmed Pay as on No. Birth 1st promo as 9 3 1971 appoint tion (date of ment take over) 1.Sri N.N.Swamy 8 3 34 21 7 58 1 12 68 Reader Rs.570 2.Sri N.Satapathy 6 9 33 July '59 27 1 70 Reader Rs.540 3.Sri P.Haridas 10 3 36 25 10 61 25 10 69 Lecturer Rs.540 4.
Sri J.J. Rao 16 3 36 7 7 59 1 7 68 Reader Rs.540 5.
Sri K.C. Samantra 5 7 70 Lecturer All the posts are permanent 6.
Sri G.J. Chineswar Rao 30 9 31 3 9 57 1 10 67 Reader Rs.570 7.
Sri Ch.
Chandra Sekhar Patro .
1 7 35 1 8 58 1 1 57 Reader Rs.570 8.
Sri Narayana Behera 1 10 37 2 8 62 13 9 70 Lecturer Rs.510 9.
Sri T.K.Satyan murty 14 9 27 1 7 49 4 5 59 Reader Rs.660 10.Sri V.S.R. Gupta 28 12 30 1 7 52 4 9 69 Lecturer Rs.600 776 It will appear that five Respondents out of eight were confirmed as Readers prior to the take over.
Three Respond ents were confirmed as Lecturers but were promoted as Read ers prior to the transfer of the College.
The last two Readers in the list who. were lucky to draw salary of the amount of Rs.660/ and Rs.600/ respectively as on the date of take over, were treated differently by the Government from the eight Respondents on the sole ground that they were drawing as Reader salary of more than Rs.600/ .
It is rather poignant that the tenth Reader in the list was only a confirmed Lecturer whereas, as already shown, five of the Respondents were confirmed Readers although drawing salary less than Rs.600/ On July 30, 1970, the Government prescribed qualifica tions for appointment as a Reader by a Circular of that date addressed to the Director of Public Instructions (Higher Education) Orissa, which appears to supersede the earlier circulars on the subject.
It was stated in that circular that the "Government have been pleased to order that follow ing principles shall hence forward be followed in the ap pointment Readers, namely, (a) no officer who has not had at least 8 years of teaching experience as a Lecturer would be eligible for consideration; and (b) the post of Reader shall originally be filled up by promotion subject to the satisfactory performance and conduct of the officer as a lecturer".
On March 23, 1971, the Government issued a circular con taining conditions governing taking over the services of the teaching staff of the College.
Paras 4 and 5 of that circu lar, which are material for our purpose, may be quoted: "4.
The State Government shall offer ad hoc appointment to all staff inposition on the date of take over subject to para 5, and sub para (d) of this paragraph for a period not exceeding six months in each case, treat ing all such staff as fresh entrants to Gov ernment service.
The final absorption of such staff in Government service shall be subject to the following conditions: x x x x x (b) That after termination of services of surplus personnel, the cases of staff re tained in Class I and Class II shall be referred to the Orissa Public Service Commis sion for determination of their suitability to hold posts in Class I or II as the case may be.
The services of those who are not found suitable by the P.S.C. (Public Service Commis sion) shall also, be terminated by giving one month 's notice in each ' case.
Those found suitable by the Commission shall be finally absorbed in respective Trade of the O.E.S. (Orissa Education Service) for which they are found 777 suitable.
It is hereby clarified that at the time of reference to the P.S.C. for determina tion of suitability for appointment as Read ers, cases of Lecturers of Government College, eligible for appointment as Readers shall also be simultaneously referred to the P.S.C. for consideration against those posts.
X X X X (c) While making reference to the P.S.C . . cases of those ad hoc Readers who would have been normally, entitled to pay of less than Rs.600/ per month on 9 3 71 by application of the formula "minimum of the scale of pay of Readers in force in the Col leges on the date of their appointment as such by the Ex Managing Committee plus one.
incre ment in that scale for every completed year of service upto 9 3 71" would be referred for determination of their suitability for absorp tion as Lecturers only.
X X X X 5.
Ad hoc appointment shall be issued to all Professors and such of the Readers in position, who on the date of take over were in receipt of pay of Rs.600/ per month or more, in the scale of pay Rs.600 1000/ against posts of Readers.
Readers who on the date of take over were in receipt of pay of less than Rs.600/ per month and all lectur ers in position on that date shall be given ad hoc appointment against the post of lectur ers in the scale of Rs.260 780/ with effect from the date of take over".
X X X X Basing on the aforesaid provisions of the above circular the Director of Public Instructions sent on April 20, 1971, to each of the Respondents appointment letters whereby they were appointed as Lecturers in Class II temporarily on ad hoc basis for a period of six months with effect from the forenoon of March 9, 1971, or till the appointment is made in consultation with the Orissa Public Service ' Commission, whichever is earlier; subject to verification of character and antecedents and production of medical fitness certificate.
Appointments were, thus, offered to.
the Respondents under the terms and conditions of take over which have been already extracted.
The grievance of the Respondents is that although they had all the requisite qualifications for the appointment as Reader and they were all holding the posts of Reader before the take over and five of them were even confirmed Readers but since under the aforesaid terms of the take over they were drawing a salary of less than Rs.600/ on the date of take over.
their names were not referred to the Public 778 Service Commission for consideration of their ' suitability for appointment as Readers in the Government College.
It is not disputed that they are otherwise educationally and by experience qualified for the post of Reader.
The High Court found that the requirement of eight years of teaching experience, as mentioned above, which is needed for appoint ment as a Reader is more than amply fulfilled by each of the Respondents.
The High Court accepted the Writ Petitions and held that the Respondents were entitled to consideration by the Public Service Commission for appointment as Read ers ' and hence these appeals by the State which are con fined only to the above question.
It is submitted by Mr. Ramamurthi on behalf of the appellants that the High Court erred in directing the Gov ernment to take into account, as experience, the service of the Respondents while they were in the private college since, according to him, the necessary qualification is eight years experience in Class II, Orissa Education Serv ice (O.E.S.).
This submission is based on the Orissa Educa tion Service Class I (Recruitment to the College Branch) Rules, 1971, issued on July 19, 1971, produced for the first time in this Court.
It is submitted that since the Respond ents have not completed eight years of service in the O.E.S. Class II (Lecturer 's grade) in Government service, they are not entitled to be considered by the Public Service Commission for appointment as Readers.
We are unable to accept this submission based on these Rules.
These Rules of July 19, 1971, were not produced in the High Court and the reason is obvious that these were not relied upon by the State in connection with the appointment of the Respondents as Readers after the College had been taken over by the Government on March 9, 1971.
The argument has, therefore, to be supported on the intrinsic strength of the circular of March 23, 1971.
Apart from this, there is a stronger reason not to.
entertain this submission at this stage.
Even in the Special Leave Petition filed by the State on July 15, 1974, there was no mention whatsoever about the aforesaid Rules and necessarily no ground was taken in the Petition on the basis of these Rules.
Being conscious of this position Mr. Ramamurthi filed a Civil Miscellaneous Petition No. 4069 of 1976 before this Court on April 30, 1976, to urge this additional ground.
After hearing Mr. Ramamurthi we rejected this prayer for urging the additional ground by such a belated application when the High Court had no oppor tunity to consider the question.
The only question, therefore, which requires decision in these appeals is _whether the Respondents were denied equal opportunity under Article 16 of the Constitution in the matter of appointment as Readers under the Government in the manner laid down in the circular of March 23, 1971.
The following facts are admitted: The Respondents and two others, namely, T.K. Satyan murty (No. 9) and V.S.R. Gupta (No. 10) in the list (Annex ure I) were all Readers in the private College, each.
having put in more than eight 779 years of service there as a Lecturer.
T. K. Satyanmurty was promoted as Reader on 4 5 1969 and was drawing Rs.660/ on the date of taking over.
V.S.R. Gupta was promoted as Reader on 4 9 1969 and was drawing Rs.600/ , the minimum according to the aforesaid Government circular, on the date of taking over.
He was not even confirmed as a Reader but was only confirmed as a Lecturer.
Amongst the Respond ents, N.N. Swamy (No. 1), N. Satapathy (No. 2), J.J. Rao (No. 4), G.J. Chineswar Rao (No. o) and Ch.
Chandra Sekhar Patro (No. 7) m the list (Annexure 1) were confirmed as Readers and four of them were promoted even earlier than No. 9 and No. 10.
It is thus clear that the condition of draw ing of Rs.600/ or more on the date of taking over, which has been laid down in the said circular as a particular qualification for eligibility for appointment as Reader and later for consideration of their suitability by the Public Service Commission for appointment as Reader, is arbitrary and discriminatory.
This condition has no nexus, whatev er, with the object underlying the qualification test in an educational institution having regard to the most essential condition of intrinsic quality and efficiency of the teachers.
It is not unknown that private institutions generally have great handicaps in the matter of finance and oftener the teaching staff in a private college has not the same scales of pay and sometimes even has much lower scales than that of the Government colleges.
It is one thing to lay down appropriate educational and intelligibly relevant qualifications for certain posts in a college and also teaching experience of a specified duration but com plete ignoration, without valid reason, of the teaching experience of a lecturer in a private college, otherwise qualified, on the sole ground of drawing a particular amount of salary on a particular date cannot be countenanced.
T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respond ents (Nos. 1, 4, 6 and 7 in Annexure I).
He happened to; draw Rs.660/ on the date of take over, while the Respond ents were drawing a little lower pay.
The former was pre ferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission for appointment as Reader and the claims of the Respondents were ignored.
Thus even amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay; even though it may be less by Rs.30/ , on March 9, 1971.
This ground for a most unreasonable differ entiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrele vant consideration results in denial of equal opportunity to the Respondents in the matter of employment under the Government under Article 16 of the Constitution.
It is well settled that under Article 16(1) of the Con stitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion, (See The General Manager, South ern Railway vs Rangachari(1).
(1) ; 2 206SCI/77 780 Our attention was drawn to a decision of tiffs Court in Smt.
Juthika Bhattacharya vs The State of Madhya Pradesh and Others(1) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose compara tively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools.
That case is entirely different from the present case.
There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management.
The educa tional qualifications and teaching experience which may be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to.
impart in the college after taking over the same from the private management.
If the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo ante.
Such a position, if taken by the Government, is consistent with implementation of a correct educational policy and will not incur the frown of Article 16 of the Constitution.
The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teach ing in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration.
Denial of an opportunity to.
these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.
When a fairly well recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs.
It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institu tion.
The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard 'to quality, efficiency and progress in all respects.
It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants.
But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue.
We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had al ready been issued to take care of the special exigency.
Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court.
The said circular took recognition of the service in the private college in the case of two (1) ; 781 Readers (Nos. 9 and 10 in Annexure 1).
The only differentia was, therefore, the salary drawn by the Readers on the date of take over.
That action based on the salary aspect under the said circular had to.
stand the test of Article 16 in the High Court, as well as, before us.
the argument in favour of complete erasion of the past teaching expe rience in the private college, first time presented before us, fails to take note of the distinction between eligibili ty and suitability.
Eight years ' teaching experience in a college and the fulfilment of other ' requisite qualifica tions make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely different matter.
We are, therefore, clearly of opinion that all the Respond ents are eligible to be referred to.
the Public Service Commission for the post of Reader.
Their names shall be referred to the Commission, accordingly.
Whether they will be suitable for appointment us Readers will be a matter entirely for due and proper consideration of the Public Service Commission whose recommendations will be considered by the Government in the matter of final absorption.
The High Court was right in allowing the .above claim in the writ applications.
The appeals fail and are dismissed with costs.
M.R. Appeals dismissed.
| IN-Abs | The respondents were working as Readers in Khallikote College, a private institution which was taken over by the Orissa Government on March 9, 1971.
A Government circular containing conditions governing taking over the services of the teaching staff of Khallikote College, was issued on March 23, 1971, whereby the respondents were appointed as lecturers in class II temporarily on ad hoc basis for a period of six months.
At the end of this period, the names of those Readers who were drawing a salary of Rs.600/ or more per month on the date of take over, were recommended to the Public Service Commission for the determination of ' their suitability for appointment as Readers.
The respond ents and others who were drawing less than Rs.600/ were not considered eligible for such recommendation.
Their writ petition against the denial of equal opportunity under article 16 was accepted by the High Court.
Dismissing the appeals by special leave the Court, HELD: The condition of drawing of Rs.600/ or more on the date of taking over, which has been laid down in the circular as a particular qualification for eligibility for appointment as Reader and later for consideration of their suitability by the Public Service Commission for appointment as Reader, is arbitrary and discriminatory.
It has no nexus with the object underlying the qualification test in an educational institution having regard to the most essen tial condition of intrinsic quality and efficiency of the teachers, and results in denial of equal opportunity to the respondents in the matter of employment under the Govern ment under article 16 of the Constitution.
[719 C D, F G] The General Manager Southern Railway vs Rangachari ; , referred.
Juthika Bhattacharya vs The State of Madhya Pradesh and Others , distinguished.
|
: Criminal Appeal No. 310 & 363 of 1976.
(From the Judgments and Orders dated the 1st September, 1975 of the Bombay High Court in Criminal Appln.
No. 20/75) and Criminal Appeals Nos.
: 348 349, 350, 195 201, 170 176, & Crl.
181 182 of 1976.
(Appeals by Special Leave Petitions from the Judgments and Orders dated the 14th/18th July, 1975, 9th July, 1975, 3rd April, 1976, 13th March, 1976, and 19th March, 1975, of the Bombay High Court in Criminal Appln.
Nos. 794, 784/75, 833 839/76 and 614620/76 and 385 386/76 respectively and Criminal Appeal No. 397 of 1976.
(Appeals by Special Leave from the Judgments and Orders dated the 23rd March, 1976 and 6th April, 1976 of the Karna taka High Court in Writ Petitions Nos. 1454 and 2096/76 respectively) and Criminal Appeal No. 397 of 1976.
(From the Judgment and Order dated the 3rd September, 1975 of the Bombay High Court in Criminal Application No. 792/75) and CIVIL APPELLATE JURISDICTION: Civil Appeal No. 573 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 26th March, 1976 of the Bombay High Court in Criminal Appln.
No. 31 of 1976) and Special Leave Petitions (Civil) Nos.
2443 2444, 2864, 3061 of 1976.
(From the Judgments & orders dated 8 4 76, 7 4 76, 12 4 76 & 8 4 76 of the Karnataka High Court in W.P. Nos.
2918/76, 6693/75, 1977, 2012 & 1295/76) and Dy.
3002 & 3003 0f 1976.
(From the Judgments and Orders dated the 8 4 1976 of the Karnataka High Court in Writ Petitions Nos.
2355 and 1968 of 1976 respectively) and Civil Appeals Nos.
1365 1367 of 1976.
(From the Judgment and Order dated the 23 3 1976 of the Karnataka High Court in Writ Petitions Nos. 2293, 2477 and 2503/76 respectively) and 723 Civil Appeal No. 434 of 1976.
(From the Judgment and Order dated the 1 4 1976 of the Karnataka High Court in IA No. IV in Writ Petition No. 4177 of 1970).
Narayan Nettar for the appellants in Crl.
A. 210 and CAs Nos.
1365 1367/76 and Crl.
A. 192 and for Petitioners in SLPs (Civil) Nos.
2443, 2444, 2864, 2865 and 3061/76 and R. 3 in CA 434/76.
V.P. Raman, Addl.
(In Crl.
A 310, 348, 397, 195 and 181/76), M/s. R.N. Sachthey and M.N. Shroff with him for the Appellant in Crl.
A. 310, 348, 397, 349, 350, 363, 170 176, 181,182 add 195 201 and C.A. 573/76 and 434/76 and for R. 3 in Crl.
A. 310 and 348 and RR 2 and 4 in Crl.
A. 350/76.
Jail Petitioners for the Petitioners in Petn.
Under Dy.
No. 3002 3003/76.
H.M. Seervai (In Crl.
A. Nos. 310, 340, 349, 363 and CA 573/ 76), Ashok H. Desai, A.J. Rane.
(In CA 573/76), L R. Gagrat and B.R. Agarwala for RR. 1 and 2 in Crl.
A. 310, 363 and 397 and R. 1 in Crl.
348 349 and RR in CA 573/76.
A.K. Sen, R.H. Dhebar and B.V. Desai for R. 1 in Crl.
A. No. 350/76.
V.M. Tarkunde, Ashok H. Desai and V.N. Ganpule for RR in Crl.
A. 170 to 176, 181, 182, 195 201/76.
H.M. Seervai, Dr. N. M. Ghatate, section Balakrishnan, section section Khanduja, (Miss) Rani Jethamalani and Altar Ahmed for R. 1 in CA 434/76.
The Judgment of A.N. Ray C.J. and Jaswant Singh, J. was delivered by Jaswant Singh J., Beg, J. gave a separate opinion.
JASWANT SINGH J.
These appeals, some of which have been preferred by certificates granted under Articles 133 and 134(1)(e) of the Constitution and Others by Special leave granted by this Court under Article 136 of the Constitution, and which are directed against various final and interim judgments and orders of the High Courts of Bombay and Karna taka passed in writ petitions filed under Articles 226 and 227 of the Constitution by or on behalf of certain persons who are detained under orders of the appropriate authorities made under section 3 of the (Act No. 52 of 1974) (hereinafter referred to as 'the Act ') complaining of certain constraints imposed on them under orders made under section 5 of the Act and claiming facilities in excess of those provided in the said orders, shall be disposed 0f by this judgment.
A gist of the orders appealed against 12 112SCI/77. 724 and particulars of the petitions in which they have been passed given in the sub joined table for facility of refer ence : FIRST BATCH OF APPEALS 1.Sr.
No. 2.No.
of appeal 3.
Date of the order appealed against 4.
No. of the application in which the order appealed against has been passed 5.
Name of the High Court which passed the order 6.
Name of the detenu in whose favour or against whom the order against has been passed.
substance of the order appealed against Sr.
No. 1 2.
310/1976 3.
1 9 1975 4.
Application No. 20/1975 5.
Bombay 6.
Krishna Budha Gawda 7.
Clauses 9(iii) 10, 12(i)and (xi), 19, 20, 21, 23, 24 and 31 of the Conservation of Foreign Exchange and Prevention of Smugling Activities (Maharashtra Conditions of Deten tion) Order, 1974 struck down and directions issued requiring the detaining authority to keep the detenu under detention as a 'civil prisoner ' within the terms of and in all respects in conformity with the provi sions of the and further directing the detaining authority to,permit the detenu to maintain himself by receiving such funds not exceeding the sum of Rs. 200/ per month us he may desire to have lot that purpose from any of his rela tives or friends, and to purchase or receive from private sources at proper hours food.
clothing, bedding, and other necessaries, including toilet requisites, toilet soap.
cigarettes and tobacco, subject to examina tion gild to such rules, if any, as may be approved by the Inspector General , as also to permit the detenu to meet persons with whom he may desire to communicate at proper times anti tinder proper restrictions.
No. 2.
A. No. 3.
do Sr.
No. 3 2.
A. No. 397/1976 3.
3 9 1975 4.
Application No. 792/1975 5.
Bombay ram Kewalji 6.
Ghamandi Gowani 7.
[Nil] SECOND BATCH OF APPEALS Sr. No.1.
A. No.348/1976 3.
Interim order dated 14 7 1975 4.
Application No. 794/1975 5.
Bombay 6.
Ramlal Narang 7.
Directions issued to the detaining authority to permit the detenu (1) to have his food from out side at his own expense, subject to routine check: (2) to have one interview with his legal advisers for two hours in the presences 725 of a Customs Officer, but not within Iris hearing; (3) to have one interview per month with ally Of tile Family members, which should be in accordance with and subject to subclauses (iii), (vi), (vii) and (ix)of clause 12 of the Conservation of Foreign Exchange and Prevention of Smug gling Activities (Maharashtra Conditions of Detention) Order, 1974.
No 348/1976 3.
Interim order dated 14 7 1975 4.
Application No. 794/1975 5.
Bombay 6.
Yusuf Abdulla Patel 7.
Directions issued to the detaining authority (1) to permit the detenu to have his food from outside at his own expense subject to routine check,(2) to have the detenu exam ined at least once a week by Doctors at St. George 's Hospital and to permit the detenu 's doctor being present at such examination.
(3) to permit the detenu to take specially prescribed medicines at his own cost.(4) not to remove the detenu to another jail from the Arthur Road Prison, Bombay, without giving at least 24 hours notice in writing (excluding Sundays and other holidays) to his Attorneys, (5) to permit the detenu to have one interview with his legal advis ers for two hours in the presence of a Customs Officer but not within his hear ing and (6) to permit the detenu to have interview with relatives as per clause 12(ii) of Maharashtra Conditions of Detention Order, 1974.
THIRD BATCH OF APPEALS Sr.
No .1 2.
195 201/1976 3.
3 4 1976 4.
Applications 833 839/1976 5.
Bombay 6.
Ratan Singh Gokaldas Rajda & others 7.
Directions issued to the detaining au thority to have the detenus taken under custody to the site of the meeting of the Bombay Municipal Corporation and enable them to exercise their votes at the mayoral election.if and when it takes place.
No. 2 2.
Nos. 170 176/1976 3. 13 3 1975 4.
Applications 614 620/1975 5.
Bombay 6.
Ahilya Pandurang Rangankar and others 7.
While rejecting the application for release on parole directions issued the detaining in authority to have the detenus taken under custody to vote at the election of statutory Com mittees to be held on 15 3 1976 at 3 P.M. at the Bombay Municipal Corporation Bom bay.
726 Sr.
No. 3 2.
181 182/1976 3.
19 3 1976 4.
Applications Nos.
385 386/1976 5.
Bombay 6.
Ganesh Prabhakar Pradhan and others 7.
Directions issued to the detaining author ity to have the the detenus taken under custo dy to the Maharashtra Legislative Council Hall for the limited purpose of enabling them to exercise their right to the statutory Committ ess on 30 3 1976.
No. 4 2.
Crl As.
1365 67/1976 3.
23 3 1976 4.
W. Ps.
2293, 2477, 2503/1976 5.
Karnataka 6.
C.R. satish and Others 7.
Directions issued to the detaining authority to have the detenus taken not later than 11 A.M. on 24 3 1976 under police escort to the place where the election of the President of the Town Municipal Council, Chikmaglur was to be held and after they exercised their right to vote to have them brought back under police escort to the jails in which they were then detained.
No. 5 2.
C.A. Nos.
434/1976 3. 1 4 1976 4.
I.A. No. IV W.P. No. 4177/1976 5.
Karnataka 6.
L.K. Advani 7.
Directions issued to the detaining authority to have the detenu taken under police escort to New Delhi so as to enable him to be in Rajya Sabha on 3 4 1976 before 10.45 A.M. and to allow him to take oath of affirma tion and thereafter to take his seat in Rajya Sabha and to have him brought back under police escort to the Central Jail Banglore on 3 4 1976 or on 4 4 1976 whichever date is convenient to the detaining authority.
FOURTH BATCH OF APPEALS Sr. No. 1 2.
A. No. 192/1976 3.
23 3 1976 4.
W.P. Nos 1454/1973 5.
Karnataka 6.
Gurunath Kulkarni 7.
Directions issued to the detaining authority (1) to have the detenu taken under police escort on or before 3 4 1976 to the shops in Bellary to enable them to purchase stationary required for the examination and to the college where detenu had 10 get the admission ticket to the examination.
(2) to have the detenu taken on each day of the examination under police escort from the jail at Bellary to the Examination centre and to see that he reached such centre at least 20 minutes before the commencement of the examination and was brought back after the day 's examination was over from such centre to the jail under police escort.
Directions also issued to the jail authorities to ascertain well in advance the programme of the examination which the detenu had to take.
727 Sr.
No. 2 2.
A. No. 210/1976 3. 6 4 1976 4.
W.P. No. 2096/1976 5.
Karnataka 6.K.T. Shivanna 7.
Directions issued to the detaining authority to release the detenu on parole on the afternoon of 10 4 1976.
The detaining authority also directed to arrange to have the detenu either taken under police escort to his home at Novavirakare, Tiprut Talu, starting from Bangalore on the afternoon of 10 4 1976 and to have him brought back under police escort from his home to the Central Jail, Bangalore, starting from Honavinskere on the afternoon of 12 4 1976 OR release the detenu at the gate of the Central jail Bangalore on his executing a self bound for Rs. 6,000/ undertaking to surrender himself to the jail authorities on 12 4 1976 not later than 6 P.M. and not take part in political activ ities or other activities detrimental to the security of the State during the period he remained on parole.
The police, however given the liberty to keep a watch around the detenu 's house and to follow his movements outside his house during the period he continued on parole.
No. 3 2.
S.L.P.(Civil) No. 2443/1976 3. 8 4 1976 4.
W.P. No.2918/1972 5.
Karnataka 6. K.A.Nagaraj 7.
Directions issued to the detaining authority (1) to release the detenu on pa role, (2) to have the detenu taken on the evening of 9 4 1976 under police escort to his houses and brought back to the Central Jail, Bangalore.
under police escort on the evening of 10 4 1976; and (3) again have the detenu taken on the evening 01 14 4 1976 under police escort to his house and brought back under police escort to the Central Jail, Bangalore, on the evening of 15 4 1976.
The police, however, given tile liberty to keep a watch around the house of the detenu and to follow his movements during the period he remained on parole.
No. 4 2.
S.L.P.(Civil) No. 2444/1976 3.
8 4 1976 4.
W.P. No.6693/1975 5.
Karnataka 6.
P.B.Satyanarayana Rao 7.
Directions issued to the detaining authority to release the detenu on parole on 14 4 1976 and to have him taken under police escort to his home and brought back under police escort to the jail On the afternoon of 16 4 1976.
The police, howev er, given the liberty to keep a watch around the house of the detenu and to watch his movement outside his house during his release on parole.
728 Sr. No. 5 2.
S.L.P.(Civil) No. 2864/1976 3. 7 4 1976 4.
W.P. No. 1977/1976 5.
Karnataka 6.
M.Sanjeev Gatti 7.
Directions issued to the detaining author ity either (i) to arrange the detenu taken under police escort to his native place.
Bangalore, starting from Bangalore on 8 4 1976 and brought back under police escort to the Central Jail Bangalore on 14 4 1976.
and (ii) to release the detenu at the gate of the Central Jail.
Bangalore.
on the morning of 8 4 1976 his executing a sell bond of Rs. 5,000/ undertaking to surrender himself to the jail authorities not later than 5 P.M. on 15 4 1976 and not to take part in any political activity or other activity detrimental to the security of the State.
The police, however, given the liberty to keep a watch around the house houses in which the detenu stayed and to follow his movements outside the house or houses during the period he remained on parole.
No. 6 2.
S.L.P. (Civil) No. 2865/1976 3.
8 4 1976 4.
W.P. No. 2012/1976 5.
Karnataka 6.
V.S. Acharya 7.
Directions issued to the detaining authority either to arrange to have the detenu taken under police escort from Central Jail.
Bangalore, to Udupi starting from Bangalore on the morning of 13 4 1976 and to have him brought back under police escort from Udupi starting there from on the morning of 21 4 1976 or release the detenu at the gate of the Central Jail, Bangalore, on his execut ing a self bond lot Rs. 5,000/ undertaking not to take part in any political activity or in any activity detrimental to the security of the State during the period he remained on parole as to surrender him self to the Jail authorities not later than 6 P.M. on 21 4 1976.
The police however, given the liberty to keep a watch over the detenu and to follow him movements during the period he remained on parole.
No. 7 2.
S.L.P. (Civil) No. 3061/1976 3.
8 4 1976 4.
W.P. No. 1295/1976 5.Karnataka 6.
C.V.Shankar Rao Jadhav 7.
Directions issued to the detaining authority either (1) to arrange to have the detenu taken too his home at Nandya under police escort starting from Bangalore on the evening of 10 4 1976 and to have him brought back under police escort to the Central Jail Bengal starting from Nandya on the morning 13 4 1977.
729 or (2) to release him at the gate of the Central Jail, Bangalore on the evening of 10 4 1976 on his executing a self bond for Rs. 5,000/ undertaking to surrender himself to the Jail authorities not later than 4 P.M. on 12 4 1976 and not to take part in any political activity or other activity detrimental to the security of the State during the period of his release on parole.
The police, however, given the liberty to keep a watch around the detenu 's house and to follow his movements outside his house during the period of his release on parole.
FIFTH BATCH OF APPEALS Sr.
No. 1 2.
No. 3002/1976 3.
8 4 1976 4.
W.P. No. 2355/1976 5.
Karnataka 6.
D.J. Shivaram 7.
Prayer of the detenu allow him to be released on parole to enable him to take the final LL.B. examination rejected in view of the orders made by this Court i.e. the Su preme Court in High Court W.P. No. 1454/1976 Sr. No. 2. 2.
No.3003/1976 3.
8 4 1976 4.
W.P. No. 1968/1976 5.
Karnataka 6.
Hanumant Gururao Inamdar 7.
Prayer of the detenu to allow him to be released on parole to enable him to take the Second Year LL.B. examination rejected in view of the orders made by this Court on in High Court W.P. No. 1454/1976.
SIXTH BATCH OF APPEALS Sr.
No.1 2.
C.A. No. 349/1976 3.
18 7 1975 4.
Application No.794/1975 5.
Bombay 6.
Ramlal Narang 7.
Directions issued to the detaining authority not to remove the detenu till further order to another jail outside the State without giving at least 3 hours notice in writing (excluding Sunday and holidays to the detenu attorneys.
No. 2. 2.
C.A. No. 573/1976 3. 20 3 1976 4.
Application No. 31/1976 5.
Bombay 6.
Prabhudas Tribhovandas 7.
Directions issued to the detaining authority to detain the detenu in such prison where the detenu would have the bene fit of the Company of other women detenus as also other facilities under the rules.
Clauses 9(iii), 10, 12(ii) & (xi), 19, 20, 21, 23, 24 & 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as "the Maharashtra Conditions of Detention Order, 1974") which have been struck down by the High Court of Bombay read as under : "9. . . . . 730 (iii) Security prisoners shall not be allowed to supplement their diet even at their own expense.
Any security prisoner who wishes to supplement his diet on medical grounds.
may apply to the Commissioner or the Superintend ent, as the case may be.
The Commissioner or the Superintendent shah get him examined by a Medical Officer attached to the place of detention who may order such modification of, or addition to, his diet, as he may consider necessary on medical grounds.
Supply of funds : (i) A security prison er may, with the previous sanction of the detaining authority, receive from a specified relative or friend at intervals of not less than a month, funds not exceeding Rs. 30/ per month and may spend these funds or a similar sum from his own private funds on such objects and in such manner as may be permissi ble under the rules, in case in which for want of funds any security prisoners are compelled to do without small amenities which their fellow prisoners enjoy, such amenities may, if considered absolutely necessary by the Commis sioner or the Superintendent be supplied to them at Government costs.
(ii) All funds so received shall be kept by the Commissioner or the Superintendent and spent by him on behalf of the security prison ers concerned.
(iii) Amounts in excess of those pre scribed in subclause (i) may be received by the Commissioner or the Superintendent on behalf of security prisoners, but they shall not be spent in any month beyond the limits laid down in the said sub clause.
12. . . (ii) The number of interviews which a security prisoner may be permitted to have shall not ordinarily exceed one per month.
(xi) In addition to the interviews permis sible under the preceding provisions of this clause, a security prisoner may with the permission of the detaining authority, be granted not more than two special interviews, for the settlement of his business or profes sional affairs, such interviews shall ordi narily take place within a period not exceed ing two months from the date of detention of the security prisoner.
concerned and shall be conducted in accordance with the provisions of this clause as regards place, duration and conditions of the interview, and the proceed ings shall be strictly confined to the objects for which the interview is granted.
Medical attendance : (i) The Superin tendent of the Hospital or the Civil Surgeon, as the case may be, shall depute a medical officer to visit each security prisoner de tained 731 in a police lock up and report of his physical condition.
The said Medical Officer shall visit the prisoner at least once a week and more often if the Superintendent of the Hospi tal or the Civil Surgeon or the Commissioner as the ease may be thinks fit, and submit the report on his condition to the Commissioner or the detaining authority, after the first day of each month and at any other time he considers necessary.
(ii) Security prisoner detained in a jail or sub jail shall in the event of illness, be treated in the same way as convicted criminal prisoner or treated under the rules made under the . 20.
Toilet : (i) Every security prisoner shall be supplied with neam or babul stick at Government expense.
(ii) Every security prisoner shall be supplied with one cake of jail made toilet soap per month for bathing at Government expense.
The weight of such cake shall be 113 grams approximately and if jail made soap is not available in any medium quality, toilet soap manufactured in India: and available locally shall be supplied.
Service of barbers etc.
: (i) A securi ty prisoner shall not be permitted to have shaving equipment of his own.
(ii) Every security prisoner shall be allowed to have the services of the jail barber once a week.
Smoking and tobacco: Except cigarettes or bidies and chewing tobacco, which are available at the jail canteen, no other facil ities to smoke or chew tobacco shall be per mitted.
Games : Security prisoners shall not be pertained to play indoor games like cards or to play chess, draughts and carrom.
Power to withhold any concessions or facilities: The State Government may, by general or special order, withhold any of the concessions or facilities provided by or under any of the provisions of this order in respect of any security prisoner or class of security prisoner, and for such period or periods, as the State Government may, from time to time specify.
Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the detenus to receive or purchase toilet requisites, toilet soap and to consult private doctors in case of genuine necessity if an applica tion is made to it in that behalf, submitted that the right of any person to 732 move any court for the enforcement of the rights conferred by Article 21 (which is the sole repository of the right to life and personal liberty) and Articles 14, 19 and 22 of the Constitution having been suspended by virtue of the Presidential Orders dated June 27, 1975 and January 8.
1976 issued under clause (1) of Article 359 of the Constitution (which are absolute in terms) for the period during which , the proclamation of emergency made on June 25, 1975 under clause (1) of Article 352 of the Constitution is in force, no person has a locus standi to move any application under Article 226 or Article 227 of the Constitution for issue of a writ, order or direction to enforce any right to personal liberty.
He has further urged that since it is for the appropriate Government to specify the place of a detenu 's detention and to lay down by means of a general or special order the conditions as to his maintenance, interviews or communications with others with a view to prevent his con tact with the outside world and sincewhat was sought to be enforced in the instant cases by means of the applications filed by or on behalf of the detenus under Article 226 and 227 of the Constitution in the aforesaid High Courts was nothing but various facts of personal liberty under Articles 19, 21 and 22 of the Constitution, the applications were not maintainable and the High Courts were not competent to deal with them and to either strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 or to issue the aforesaid directions to the detain ing authorities.
Mr. Seervai Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized: (1) that preventive detention does not stand on the samefooting as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated; (2) that considerations relevant for applica tions seeking relief of release by habeas corpus are not relevant to cases in, which conditions of detention fall for considera tion; (3) that the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency and the exercise of power under section 5 of the Act must have a reasonable nexus with the purpose for which the power is conferred; (4) that if according to the majority judgment in Additional District Magistrate, Jabalpur vs Shiva Kant Shukla(1) even habeas corpus could issue in cases where the order is not duly authenticated then the conditions of detention can certainly be scrutinized and relief can be granted if those conditions are found to be illegal or ultra vires; (1) ; A.I.R. 1976 S,C. 1207.=[1976] Supp.
S,C.R. 172. 733 (5) that the aforesaid clauses of the Maha rashtra Conditions of Detention Order, 1974, being ultra vires and violative of the princi ples of reasonableness and legality have rightly have been struck down by the High Court of Bombay: (6) that a curtain cannot be drawn round the detenu ,red while he can be cut off from undesirable contacts, he cannot be cut off from unobjectionable contacts; (7) that if the place of detention mentioned in a detention order is a prison, then the detenu would be governed by the but not if the detenu is lodged elsewhere; (8) that the detenus ' grievances are not 'echoes ' of Article of the Constitution but are the echoes of the 'totality ' law; (9) that it is not right to say that what is not contained in Article 19 of the Constitu tion is contained in Article 21 of the Consti tution as this submission ignores Articles 15, 25 and 26 of the Constitution which are ap plicable even to non citizens.
The learned Additional Solicitor General has, in his rejoinder, contended that while total release is of course different from regulating conditions of detention, the former not being available by virtue of the Presidential Orders dated 27th June, 1975 and January 8, 1976 issued under Article 359 (1) of the Constitution which are uncondi tional even conditions of detention cannot be enforced by moving a court during the period of emergency and that the contention based upon the principles of legality and reason ables and doctrine of ultra vires is misconceived.
The Additional Solicitor General has further submitted that legality has to be understood as meaning the authority of law and it so understood, a person detained in accordance with the conditions framed under section 5 of the Act cannot complain that the conditions are illegal or ultra vires, broader challenges based on fundamental rights not being available; that the principle of reasonableness and the doctrine of ultra vires have no bearing on subordinate legislation framed under emergency laws; that the court cannot grant relief on vague and indeterminate philosophical theories like the totality of law; that as the line of demarcation between preventive and punitive detention which is easily perceivable at the stage of detention becomes progressively elusive and hazy when one comes to conditions of detention.
there is little scope for generalisation; that curtain has to be drawn round a detenu to ensure effective ness of detention which cannot be sacrificed in the interest of security of the State; that the observations made by the majority in Shivakant Shukla 's case (supra) regarding the area of judicial interference which are sought to be relied upon on behalf of the detenus relate to the obvious eases where the Executive itself could not and would not seek to defend a detention order and can be of no assistance in the present cases where the detenus seek to 734 enforce a right to do something or to get something which is not con t:erred on and given to them by law; that any right to personal liberty or any facet or aspect thereof has to be found in some constitutional provision to be enforced in normal times and ex hypothesi to become unenforceable during an emergency and reference to Articles 15, 25 and 26 of the Constitution completely ignores the fact that these rights postulate a free citizen and cannot be enforced independent ly of Article 21 or Article 19 of the Constitution and in any case, the rights claimed in the present cases have no relation to those Articles.
Without prejudice to the aforementioned contentions advanced by him the learned Additional Solicitor General has further submitted that it is only where there are specific provisions in the rules framed trader section 5 of the ' Act that those provisions being conditions of detention can be enforced when still available to an individual detenu that the provisions of Maharashtra Conditions of Detention Order, 1974 have to be examined and scrutinized to see if the facilities claimed by the detenus are excluded by impli cation, e.g. where a provision for a particular number of interviews is made, it necessarily implies a prohibition against having more interviews; that the question whether a particular act which is not specifically prohibited should be permitted or not has to be decided by keeping in view the effectiveness of detention; that allowing a detenu to go and vote at a corporate election or to take part in legislative proceedings is destructive of the purpose of detention and in any event approach must be made to the Executive to exercise its rights of parole or relaxation which is implic it in sections 12 and 5 of the Act as for instance if the release is necessitated by exigencies like performance of obsequieal ceremonies or sharadh of a kith and kin, but an order directing the detenu to be taken under police guard to the place where obsequies of a dead relation are to be performed cannot be made by a court as it tantamounts to onforcing his personal liberty; that while Iramane consider ations are generally borne in mind by the authorities having the custody of the detenus and appropriate Government, they cannot furnish reliable basis for judicial relief; that the aforesaid directions of the Bombay High Court equating detenus with 'civil prisoners ' amenable to the , does not only amount to a substitution or re enactment of section 5 of the Act i.e. of the but is also opposed to the definition of the 'prisoner ' as contained in the Bombay Jail Manual which has not been amended so as to include persons directed to be detained under any Central or other Act providing for detention; that the mere fact that a person is detained for purposes of administrative convenience in a jail does not mean that he is a civil prisoner or that the applies to him; and that the necessity of having provisions in the condi tions of detention orders enabling a detenu to consult pri vate doctors in the presence of the official doctors in case of genuine necessity or to supplement his diet on medical grounds or to indulge in harmless pastimes like chess or carrom or to appear in examinations are matters for which the appropriate Government should be approached.
735 We have given our anxious consideration to the submis sion made by counsel for the parties.
In our judgment, the vital question of fundamental importance that requires to be determined at the threshold in the instant cases is whether in view of the orders dated June 27, 1975 and Janu ary 8, 1976 issued by the President under clause (1) Article 359 of the Constitution, the aforesaid petitions under Articles 226 and 227 of the Constitution were maintainable.
For a proper determination of the question, it is necessary to advert to the provisions of Articles 352, 353, 358 and 359 contained in Part XVIII of the Constitution called the Emergency Provisions, as well as to the Presiden tial Orders dated November 3, 1962, December 3, 1971, Novem ber 16, 1974, June 25, 1975, June 27, 1975 and January 8, 1976.
The aforesaid Articles of the Constitution are in these terms : "Article 352.
(1) If the President is satisfied that a grave emergency exists where by the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal dis turbance, he may, by Proclamation make a declaration to that effect.
(2) A Proclamation issued under clause (1) (a) may be revoked by subsequent Proclamation; (b) shall be laid before each House of Parlia ment; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolu tions of both Houses of Parliament; Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub clause (c), and if a resolution approving the Procla mation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to oper ate at the expiration of thirty days from the date on which the House of the People first sits after its reconstruction unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of People.
(3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturb ance may be made before the actual occurrence of war or of any such aggression or disturb ance if the President is satisfied that there is imminent danger thereof.
736 ** (4) The power conferred on the President by this article shall include the power to issue different proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under clause (1), and such Proclamation is in operation.
(5) Notwithstanding anything in this Constitu tion, (a) the satisfaction of the President men tioned in clause (1) and clause (3) shall be final and conclusive and shall not be ques tioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validi ty of (i) a declaration made by Proclamation by the President to the effect stated in clause (1); or (ii) the continued operation of such Proclama tion." "Article 353.
While a Proclamation of Emer gency is in operation then (a) notwithstanding anything in this Con stitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power there of is to be exercised; (b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the Conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding ' that it is one which is not enumerated in the Union List." "Article 358.
While a Proclamation of Emer gency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to.
the extent of the incompeten cy, cease to have effect as soon as the Proc lamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect." ** Inserted retrospectively by section 5 of the Constitution (Thirty eighth Amendment) Act, 1975.
737 "Article 359.
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the fight to move any court for the enforcement of such of the rights conferred by Part III as may be men tioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
**(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State us defined in the said Part to make any law or to take any execu tive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
(2) An order made as aforesaid may extend to the whole or any part of the territory of India.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
" It is hardly necessary to emphasize that the provisions of the Articles reproduced above arc designed to arm the State with special powers to meet extraordinary situations created in times of grave national emergencies due to war, external aggression and internal disturbance when the secu rity of the State nay the very existence of the nation is threatened necessitating the subordination of individual rights to the paramount consideration of the welfare of the State, and to give effect to the well recognized principle to which particular attention was called by E.C.S. Wade and Godfrey Phillips by inserting the following passage in their Constitutional Law, 8th Edition, Chapter 48, pp. 717, 718: "It has always been recognized that times of grave national emergency demand the grant of special powers to the Executive.
At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament.
" It is, however, necessary to state that there is an appreciable difference between Articles 358 and 359(1) of the Constitution.
Whereas simultaneously with the declara tion of emergency under Article 352, Article 358 by its own force removes the restrictions on the power of the Legislature to make laws inconsistent with Article 19 of the Constitution as also on the power of the Executive to take ** Inserted retrospectively by section 7 of the Constitu tion (Thirty eighth Amendment) Act, 1975.
738 actions which may be repugnant to Article 19 of the Consti tution so long as the proclamation of emergency continues to operate but does not suspend any fundamental right which was available to a citizen under Article 19 of the Constitution prior to the promulgation of emergency, Article 359(1) empowers the President to suspend the right of an individual to move any court for enforcement of such of the rights conferred by Part III of the Constitution as may be speci fied by him (the President) in his order.
In other words, while Article 358 proporio vigore suspends the fundamental rights guaranteed by Article 19 of the Constitution thus enabling the State during the period the proclamation of emergency is in operation to make laws in violation of Article 19 of the Constitution and to take Executive action under those laws despite the fact that those laws constitute an infringement of the rights conferred by Arti cle 19, Article 359(1) of the Constitution does not sus pend any fundamental right of its own force but authorises the President to deprive an individual of his right to approach any Court for enforcement of any or all of the rights conferred by Part III of the Constitution.
In Mohd. Yaqub etc.
vs The State of Jammu & Kashmir(1), a Constitu tion Bench of this Court consisting of seven Judges inter alia pointed out that there is a distinction between Arti cles 358 and 359(1) of the Constitution.
Whereas Article 358 by its own force suspends the fundamental rights guaran teed by Article 19, Article 359(1) of the Constitution has the effect of suspending the enforcement of specified funda mental rights so.
that these concept cannot be used to test the legality of an Executive action.
Reference in this connection may also usefully be made to a passage in Shivakant Shukla 's case (supra) where my.
Lord the Chief Justice who headed the majority opinion while pointing out the difference between Articles 358 and 359 of the Constitution observed : "The vital distinction between Article 358 and Article 359 is that article 358 suspends the rights only under Article 19 to the extent that the legislature can make laws contraven ing Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws.
Article 358 does not suspend any fundamental fight.
While a Proclamation of Emergency is in operation the Presidential Order under Article 359(1) can suspend the enforcement of any or all fundamental rights.
Article 359(1) also sus pends any pending proceedings for the enforce ment of such fundamental right or rights, The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential Order is barred or it remains suspended during the emergency.
Another important distinction between the two Articles is that Article 358 provides for indemnity whereas Article 359(1) does not, Article 359(1A) is on the same lines as Arti cle 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential Order and is, therefore, much wider than Article 358 which includes Article 19 only.
(1) ; 739 A person can enforce a fundamental right both in the case of law being made in viola tion of that right and also if the Executive acts in non compliance with valid laws or acts without the authority of law.
It cannot be said that the scope of Article 359(1) is only to restrict the application of the Article to the Legislative field and not to the acts of the Executive.
The reason is that any enforce ment of the fundamental rights mentioned in the Presidential Order is barred and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount 'to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential Order.
The effect of the Presidential Order suspend ing the enforcement of fundamental right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right.
" Thus the foregoing discussion makes two things perfectly clear(1) that Article 359(1) (which makes no distinction between the threat to the security of India by war or external aggression or internal disturbance) is wider in scope than Article 358 and (2) that it is not open to any one either to challenge the validity of any law or any Executive action on the ground of violation of a fundamen tal right specified in the Presidential Order promulgated under Article 359(1).
of the Constitution.
It would be apposite at this stage to mention that in England in Liver sidge vs Anderson(1) and Greene vs Secretary of State for Home Affairs(2) and in India in Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(3) and Makhan Singh vs State of Punjab(4) the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrary or unlawful has been negatived.
In the Liversidge 's case (supra) the following memorable observations made by the House of Lords in the King vs Halliday, Ex parte zadig(5) were referred to and relied upon : "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment namely, national success in the war or escape from national plunder or enslavement.
Liberty is itself the gift of the law and may by the law be forfeit ed or abridged." Having noticed the amplitude of the provisions incorpo rated in our Constitution by its rounding fathers in rela tion to the threat posed by three types of grave emergencies on the basis of the experience gained .
in England and United States of America and their effect, let us now turn to the various Presidential Orders and notice their effect.
(1) ; (2) (3) ; = ; (4) [1964] 4 S.C.R. 797 = A.I.R. 1964 S.C. 381.
(5) ; 13 112 SCI/77.
740 Presidential Order dated November 3, 1962 issued under clause (1) of Article 359 of the Constitution after the proclamation of emergency made on October 26, 1962 under clause (1) of Article 352 of the Constitution consequent on the invasion of India by China on September 8, 1962 ran as follows : "New Delhi, the 3rd November, 1962 G.S.R. 1464 In exercise of the powers Con ferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.
" Be it noted that addition of Article 14 was made in the above Presidential Order of November 3, 1962 by the Presi dential Order dated November 11, 1962 and the aforesaid emergency declared on October 26, 1962 was revoked vide Presidential Order dated January 10, 1968 issued under Article 352(2)(a) of the Constitution.
Proclamation of emergency issued by the President of India under Article 352(1) of the Constitution on December 3, 1971, consequent upon the Pakistani aggression reads as under : "In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I, V.V. Giri, President of India, by this.
Proclamation declare that a grave emergency exists whereby the security of India is threatened by .external aggression.
" Presidential Order dated November 16, 1974 issued under clause (1) of Article 359 of the Constitution is in these terms : "In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that : (a) the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1)(c) of the as amended by Ordinance II of 1974 for the enforcement of the rights conferred by Article 14, Article 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution, and (b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said section 3(1)(e) shall remain suspended for a period of six months from the 741 date of issue of this order or the period during which the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution the 3rd December, 1971, is in force, whichever period expires earlier.
(2) This order shall extend to the whole of the territory of India.
" On June 20, 1975, the President of India amended the above order by substituting "twelve months" for "six months" in the order.
Proclamation of Emergency issued by the President of India on June 25, 1975 is to the following effect : "PROCLAMATION OF EMERGENCY.
In exercise of the powers conferred by clause (1 ) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emer gency exists whereby the security of India is threatended by internal disturbances.
New Delhi Sd/F.A. Ahmed the 25th June, 1975 President.
" Presidential Order dated June 27, 1975 promulgated under clause (1) of Article 359 of the Constitution runs thus : "In exercise of the power conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights con ferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain sus pended for the period during which the Procla mations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force.
This order shall extend to.
the whole of the territory of India except the State of Jammu and Kashmir.
This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) of 'Article 359 of the Constitution." On June 29, 1975, another.
order was issued by the President whereby the words "except the State of Jammu and Kashmir" in the order dated June 27, 1975 were omitted.
On September 25, 1975, another Presidential Order was issued as a result of which the last paragraph in the Presidential Order dated June 27, 1975 was omitted.
On January 8, 1976, the President issued yet another order under Article 359(1) of the Constitution declaring that the right to move 742 any court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall remain suspended during the operation of the proclamations of emergency dated Decem ber 3, 1971 and June 25, 1975.
The difference between the Presidential Order dated June 27, 1975 which was supplemented by the Presidential Order dated January 8, 1976 and the earlier Presidential Orders barring the right of a person to move any court for enforce ment of certain fundamental rights conferred by Part III of the Constitution may now be noticed.
While the Presidential Order dated June 27, 1975, which, as already stated, was supplemented by the Presidential Order dated January 8, 1976 was absolute and unconditional in terms, the earlier Presi dential Orders alluded to above were conditional and limited in scope.
Apart from the fact that the Presidential Order dated November 3, 1962 did not make any mention of the pending proceedings, it was, as pointed out by this Court in State of Maharashtra vs Prabhakar Pandurang Sanzgiri(1) Dr. Ram Manohar Lohia vs State of Bihar(2) Makhan Singh vs State of Punjab (supra) and by the majority in .A.D.M.
Jabalpur vs Shivakant Shukla (supra), hedged by a condition inasmuch as it declared that the right of any person to move any court for the enforcement of rights conferred by Articles 21 and 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of Article 352 thereof on October 26, 1962 is in force if such a person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) (which was later on replaced by the Defence of India Act, 1962) or any rule or order made thereunder.
" Accordingly, if a person was deprived of his personal liberty not under the Defence of India Act or any rule or order made there under but in contravention thereof, his locus standi to move any court for the enforcement of his rights conferred by Articles 21 and 22 of the Constitution was not barred.
More or less, similar was the pattern and effect of the Presidential Order dated November 16, 1974.
The position with respect to the Presidential Orders dated June 27, 1975 and January 8, 1976 is, however, quite different.
These orders are not circumscribed by any limitation and their applicability is not made dependent upon the fulfilment of any condition 'precedent.
They impose a total or blanket ban on the enforcement inter alia of the fundamental rights conferred by Articles 19, 21 and 22 of the Constitu tion which comprise all varieties or aspects of freedom of person compendiously described as personal liberty.
(See/1.
K. Gopalan vs The State of Madras(1), Kharak Singh vs State of U.P.(2) and A.D.M. Jabalpur vs Shivakant Shukla (supra).
Thus there is no room for doubt that the Presidential Orders dated June 27, 1975, and January 8, 1976, unconditionally suspend the enforceability of the right conferred upon any person including a foreigner to move any court for the enforcement of the rights enshrined in Articles 14, 19, 21 and 22 of the Constitution.
(1) ; = A.I.R. 1966 S.C. 1924.
(2) [1966]1 S.C.R. 709 = A.I.R. 1966 S.C. 540.
(3) ; = ; (4) [1964] 1 S.C.R, 332 = ; 743 The main contention advanced on behalf of the detenus that the Presidential Orders dated June 27, 1975 and January 18, 1976 do not bar the Court from examining the legality or vires or reasonableness of the Maharashtra Conditions of Detention Order, 1974 and that what is sought by means of the aforesaid petitions filed by or on their behalf is not the enforcement of the right to personal liberty conferred by Articles 14, 19, 21 and 22 of the Constitution but a redress of the complaint against illegality or ultra vires or unreasonableness of the Maharashtra Conditions of Detention Order, 1974 which imposes unwarranted constraints on them and does not provide them with facilities to which even the ordinary prisoners are entitled is totally mis conceived.
It overlooks the well recognized canon of construction that the doctrines of legality and vires which are sacrosanct in times of peace have no relevance in regard to a legislative or an executive measure taken in times of emergency in the interest of the security of the State.
It also ignores the well settled position that in times of, emergency when the security of the State is of utmost importance, the subordinate legislation has to be benevo lently construed and the strict yardstick of reasonableness cannot be appropriately applied.
It also ignores the stark reality that the Presidential Orders dated June 27, 1975 and January 8, 1976 impose blanket bans on any and every judi cial enquiry or investigation into the validity of an order depriving a person of his personal liberty no matter whether it stems from the initial order directing his detention or from an order laying down the conditions of his detention.
It has to be borne in mind that the rule of law during the emergency is no other than what is contained in Chapter XVIII of the Constitution which is the positive and tran scendental law.
The following observations made by my Lord the Chief Justice in this connection in A.D.M. Jabalpur V. Shivakant Shukla 's case (supra) are worth perusing : "The Constitution is the mandate.
The Constitution is the rule of law . .
The rule of law is not a mere catchword or incan tation.
The rule of law is not a law of nature consistent and invariable at all times and in all circumstances.
The suspension of right to enforce fundamental right has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency.
There cannot be :any rule of law other than the constitu tional rule of law.
There cannot be any pre Constitution or post Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency.
" Again as observed by my learned brother Beg, J. in A.D. M. Jabalpur vs Shivakant Shukla 's case (supra) "the only Rule of Law which can be recognised by Courts of our country is what is deducible from our Constitution itself.
The Constitution is, for us, the embodiment of the highest "positive law" as well as the reflection of all the rules of natural or ethical or common law lying behind it which can 744 be recognised by Courts.
It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution.
I am not aware of any Rule of law or reason which could enable us to do that.
What we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind our existing Constitution, which could take the place of those parts of our Constitution whose enforcement is sus pended and then to enforce the substitutes.
Even in emer gencies, the power of the courts to test the legality of some executive act is not curtailed during the period the proclamation of emergency is in operation.
Courts will apply the test of legality 'if the person aggrieved brings the action in the competent court '.
But, if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the grounds of execu tive action of their relationship with the power to act, it is no use appealing to this Particular concept of the Rule of Law.
It is just inapplicable to the situation which arises here.
Such a situation is governed by the Emergency provisions of the Constitution.
There provisions contain the Rule of Law for such situations in our country . .
If the meaning of the emergency provisions in our Con stitution and the provisions of the Act is clearly that what lies in the executive fled, as indicated above, should not be subjected to judicial scrutiny or judged by judicial standards of correctness, I am unable to see how the courts can arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess.
" The observations made by my learned brother Chandrachud, in A.D.M. Jabalpur vs Shivakant Shukla 's case (supra) are also apposite and may be conveniently referred to at this stage : "The rule of law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution.
There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergen cy provisions of the Constitution.
" The following observations made by my learned brother Bhagwati, J. in A.D.M. Jabal pur vs Shivakant Shukla 's case (supra) will also repay perusal : "In the ultimate analysis, the protection of personal liberty and the supremacy of law which sustains it must be governed by the Constitution itself.
The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law, he shah not be entitled to enforce his right of personal liberty, whilst a Presidential Order under Article 359, clause (1) specifying Article 21 is in force, the Court has to give effect to it as the plain and emphatic command of the Constitution.
" 745 The observations made by this Court in Dhirubha Devisingh Gohil vs State of Bombay(1) and reiterated in A.D.M. Jabalpur vs Shivakant Shukla (supra) that if any pre Constitution right has been elevated as a fundamental right by its incorporation in Part III, the pre existing right and the fundamental right are to be considered as having been grouped together as fundamental rights conferred by the Constitution cannot also be ignored.
The conclusion, therefore, seems to us to be irresisti ble that as Articles 19, 21 and 22 of the Constitution which, according to the decisions of this Court in 4.
K. Gopalan vs State of Madras (supra), Kharak Singh vs State of U.P. (supra) and A.D.M. Jabalpur vs Shivakant Shukla .(supra) cover and form the source of all the varie ties or aspects of the rights that go to constitute what is compendiously described as personal liberty are suspended during the operation of the proclamation of emergency and the and the orders made or passed thereunder are not open to challenge on the ground of their being inconsistent with or repugnant to Articles 14, 19, 21 and 22 of the Constitution in view of the aforesaid Presi dential Orders dated June 27, 1975 and January 8, 1976 which totally take away the locus standi of the detenus to move any court for the enforcement of the aforesaid fundamental rights and the petitions out of which the present appeals have arisen did not seek to enforce the orders laying down the conditions of detention but on the contrary challenged them and covertly sought to enforce the very rights which are suspended, they were clearly untenable and it was not open to the High Court of Bombay to strike down the afore said clauses of the Maharashtra Conditions of Detention Order, 1974 ignoring the weighty observations made by this Court in the State of Bombay vs Virkumar Gulabchand Shah(2) to the effect that measures which often have to be enacted hastily to meet a grave pressing national emergency in which the very existence of the State is at stake should be con strued more liberally in favour of the State than peace time legislation.
Now if no person has a locus standi to move any court to challenge the conditions of detention embodied in the Maharashtra Conditions of Detention Order, 1974, or other such orders or rules, the position whereof is the same as that of the .Punjab Communist Detenus Rules, 1950, which, as held by a Constitution Bench of this Court in Maqbool Hus sain vs The State of Bombay(3) constitute a body of.
self ' contained rules prescribing the conditions of the detenus ' maintenance, discipline etc.
, we cannot understand how the High Courts of BOmbay and Karnataka could issue the afore said directions 'disregarding the provisions of the Act particularly sections 5 and 12(6) thereof which are mandato ry in character and the aforesaid orders which in any case appear to have been issued in the interest of the effective detention of the detenus.
(1) ; = ; (2) ; at 884 (3) ; 746 The avowed object of the Act as manifest from its preamble being the conservation and augmentation of foreign exchange and the prevention of smuggling activities of considerable magnitude secretly organised and carried on which have a baneful effect on the national economy and gravely undermine the security of the State, it is essential that the contact of the detenus with the outside world should be reduced to the minimum.
It is, therefore, for the State Governments who are in full possession of all material facts including the peculiar problems posed by foreign exchange and smuggling and not for the Courts who have neither the necessary knowledge of the facts nor the legal competence to regulate conditions of detention of persons including their maintenance, interviews or communi cations with others.
The High Court also seem to have ignored the observa tions made by this Court in State of Maharashtra vs Prabha kar Pandurang Sanzgiri & Anr.
(supra) and in A.D.M. Jabalpur vs Shivakant shukla (supra) to the effect that when a person is detained, he loses his freedom.
He is no longer a free man and, therefore, he can exercise, only such privi leges as are conferred on him by the order of detention or by the rules governing his detention.
We would also like to reiterate here the observations made by a Constitution Bench of this Court in Maqbool Hussain vs The State Bombay (Supra) that the mere fact that a detenu is confined in a prison for the sake of administrative conven ience does not entitled him to be treated as a civil prison er or to be governed by the provisions of the .
The view of the High Court of Bombay to the contrary cannot, therefore, be sustained.
It has also been contended by Mr. Seervai that in asking for their temporary removal from their places of detention to their homes to perform funeral ceremonies or to appear at any examination or to be taken to a doctor of their choice for social medical attention, the detenus are not enforcing their rights to freedom.
The contention is not sound.
Any relief that may be asked for through the aid of court for giving facilities to a detenu to be taken from his place of detention to his home or to an examination hall or for special medical treatment under a doctor of his choice or for any other facility would be enforcing fundamental rights through the aid of Court.
The Presidential Proclamation is a complete answer against the enforcement of such reliefs through the aid of Court.
The detenus may approach the competent administrative authorities for special medical attention or for facilities for performance of funeral ceremonies of their kith and kin or for facilities to appear at the examination or any other facility of similar nature.
It is open to the administra tive authorities to take such action as they may be advised under the relevant provisions of the Act.
But if the authorities do not give any relief it was said by counsel for the detenus then the detenus could come to the court.
This contention is also unsound and unacceptable because that would also be enforcing fundamental rights through the aid and process of court which is not permissible so long as the aforesaid Proclamation is in force.
747 We are therefore clearly of opinion that the aforesaid writ petitions were not maintainable and the High Court of Bombay and Karnataka were clearly in error in passing the impugned directions which are not warranted by any relevant law including the law relating to preventive detention of the kind with which we are concerned in the present cases.
The detenus or their relations may if so advised, approach the appropriate Governments.
or other competent administrative authorities invoking their powers under section 5 read with section 12 of the Act or other relevant provisions thereof.
In the result, appeals diarised as Nos.
3002 and 3003 of 1976 fail and are hereby dismissed while the rest of the appeals are allowed and the orders and directions forming the subject matter thereof are quashed.
The special leave petitions are disposed of as infructuous as in view of our Judgment High Court Orders cannot stand.
Since during the course of arguments, it was pointed out to us that the conditions of detention laid down by some State Government differ in certain particulars, we may, in conclusion, observe that the appropriate Governments would do well to take necessary steps to bring about uniformity therein.
To eliminate the chances of hardship, the appro priate Governments may as well issue standing orders to meet special contingencies which necessitate expert medical aid being provided to the detenus for the maintenance of their health or their being removed temporarily from their places of detention on humanitarian grounds to enable them to perform the obsequies of their kith and kin or for appearing in some examination without detriment to the security of the State.
No order as to costs.
BEG, J.
The circumstances in which the appeals now before us by special leave arose have been dealt with in extenso by my learned brother Jaswant Singh with whose judgment and proposed orders I entirely concur.
I would, however, like to add some reasons of my own also to indicate why submissions made on behalf of the respondents, on the strength of certain observations found in the judgments, including mine, in Additional District Magistrate, Jabalpur vs Shivakant Shukla(1), decided by a Constitution Bench of this Court, cannot be accepted by us.
I will also express my opinion, very briefly and broadly on some other conten tions advanced by learned counsel for the respondents as issues relating to personal liberty, which have been matters of very special and anxious concern to this Court, arise here.
I think this Court has made it amply clear in Shukla 's case (supra) that the Constitution embodies, for all Courts in this country, the highest norms of law.
It is the touch stone by which the validity of all action, whether executive, legislative, or judicial is to be judged.
That is why, this Court has, on several occasions, spoken of "the supremacy of the Constitution" explained by me in Shukla 's case (supra) also as follows: (1) ; , 1283=[1976] Supp.
S.C.R. 172. 748 "The position in this country is clearly one in which the fundamental law found in the Constitution is paramount.
The Constitution provides the test for the validity of all other laws.
It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision.
The judicial function, though wider in range, when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current Emergency, is especially constricted by the elaborate provi sions of Articles 21 and 22, which deal with personal liberty and preventive deten tion.
The 'wider the sweep of the provisions of Articles 21 and 22, the more drastic must be the effect of suspending their enforcement.
After all, suspension does not and cannot mean retention under a disguise".
It seems to me that the majority view in Shukla 's Case (supra) was that there is no pre existing natural or funda mental or common law which, in so far as the rights covered by Part III of our Constitution, together with implications of such rights, are involved, is not embodied in the Consti tution itself.
Furthermore, this Court held there, after considering all the relevant case law on the subject, from the case of 4.
K. Gopalan vs State of Madras(1), through Kharak Singh vs State of U.P.(2), I. C. Golaknath vs State of Punjab(3), His Holiness Kesavananda Bharati Sripadagala varu vs State of Kerala(4), to Haradhan Saha vs The State 0f West Bengal & Ors.
(5), that the sweep of Articles 19 and 21 is wide enough to include every aspect of personal free dom.
This Court recalled that, in Kharak Singh 's case, a Constitution Bench of this Court had held that the concept of personal liberty, embodied in Article 21, is a compendi ous one and "includes all varieties of rights tO exercise of personal freedom, other than those dealt with separately by Article 19, which could fall under a broad concept of free dom of person".
"It was held to include freedom from surveillance, from physical torture, and from all kinds of harassment of the person which may .interfere with his liberty".
I summarised my conclusions on this sub ject in Shukla 's case (supra) as follows: "For the reasons indicated above, I hold as follows: Firstly, fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights.
These basic aspects of rights are elevated to a new level of importance by the Constitution.
Any (1) ; (2) [1964] (1) S.C.R. 332.
(3) ; (4) [1973] Supp.
S.C.R. I (5) ; 1974 S.C. 2154.
749 other co extensive rights, outside the Con stitution, are necessarily excluded by their recognition as or merger with fundamental rights.
Secondly, the object of making certain general aspects of rights fundamental is to guarantee them against illegal, invasions of these rights by executive, legislative, or judicial organs of the State.
This necessari ly means that these safeguards can also, be legally removed under appropriate constitu tional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences.
Thirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practi cally all aspects of personal freedom.
It embraces both procedural and substantive rights.
Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be.
In that sense, it could be viewed as, substan tially, an elaboration Of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power.
Fourthly, taken by itself, Article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State 's agents or officials, although, read with other Articles, it could operate also as a protection against unjusti fiable legislative action purporting to authorise deprivations of personal freedom.
Fifthly, the most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts.
Sixthly, if the protection of enforceabil ity is validly suspended for the duration of an Emergency, declared under Constitutional provisions, the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them".
I may mention, at the risk of repetition, that I had explained in Shukla 's case (supra) that it is not the funda mental rights which are suspended by the Presidential Order under Article 359 of the Constitution but "the right to move any Court for the enforcement of such right by Part III as may be mentioned in the order" which is suspended for the duration of the Emergency.
Speaking for myself, I was of opinion that what is very obviously and clearly affected is the enforceability of fundamental rights during such an Emergency.
This means that it is really the jurisdiction of Courts, to the extent to which a petitioner seeks to enforce a fundamental right mentioned 750 in the Presidential Order, which is suspended or is in abeyance.
I said there (at p. 1302) (paragraph 346): "The result is that I think that there can be no doubt whatsoever that the Presidential Order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their fundamental ' rights by the executive authorities of the State".
It is these processes of law, whether statutory or outside.
any statute (even assuming, for the sake of argument, that there could be any such non statutory rights) which Arti cle 21 expressly protects.
Therefore, I am totally unable to understand how, without ignoring what our Constitution enjoins, a Court could do what is Constitutionally prohib ited i.e. to enforce a statutory or non statutory supposed protection.
Shukla 's case (supra) and other connected cases related to the enforcement of the right to personal liberty by obtaining an order of release of detenus after issuing writs of Habeas Corpus.
Article 223 of the Constitution, no doubt, gives power not only to issue specified writs but enables High Courts to issue orders and directions for "any other purpose".
It seems to me that this "other purpose" has to be similar to those for which one of the specified writs could issue except to the extent that each specified writ may have special features or incidents attached to it.
Now, the writ of Habeas Corpus, as is well known, is wider in scope than enforcement of fundamental rights which are available against the State only and its officers and agents.
Therefore, I had said in Shukla 's case (p. 1300): "The remedy by way of a writ habeas corpus is more general.
It lies even against illegal detentions by private persons although not under Article 32 which is confined to en forcement of fundamental rights [vide: Smt.
Viday Verma vs Dr. Shiv Narain Verma, (1955)C2 SCR 983=AIR The Attorney General also concedes that judicial proceedings for trial of accused persons would fail outside the interdict of the Presidential Order under Article 359(1).
Therefore, it is unnecessary to consider hypothetical cases of illegal convictions where remedies under the ordinary law are not suspended".
As already indicated above, fundamental rights are conferred and guaranteed by the Constitution so that citi zens, and, in the cases of Articles 14 and 21, even non citizens, may get relief against the State and its agencies.
The suspension of enforcement of fundamental rights, which are rights enforceable against the State only, does not, as I pointed out, in Shukla 's case, debar enforcement of some right to personal freedom against a private individual by means of a writ of habeas corpus directed to him to produce a person illegally detained.
But, so far as mere direc tions or orders for "any other purpose" are concerned, the jurisdiction of High Courts does not 751 extend to making orders against private individuals.
There fore, the distinction which 1 drew in Shukla 's case (supra), between a detention by an officer of the State, vasted with the power to detain and purporting to act under some law which authorises him to pass a detention order, and a detention by a private individual, has no real bearing on the cases now before us.
I had certainly expressed the view in Shukla 's case that, if a detention by a person or authority is not in exercise or purported exercise of a power to detain, which is not vested in all officers of State, under statutes providing for it, the action of an officer of the State, on the facts of a particular case, may be, prima facie.
indistinguisha ble from a detention by a private person and may not be protected at all by the Presidential Order which only covers purported actions of the State and its Officers empowered to detain.
That was, as I pointed out there, was a purely hypothetical situation not presented in any of the cases before us on that occasion.
If the officer concerned is duly empowered and has passed a detention order, that order is certainly not capable of being questioned, under Article 226, either on the ground of alleged ultra vires or mala fides.
All inquiry into the conditions of exercise of such power is barred under Constitutional provisions during the emergency.
That was the very clearly expressed majori ty view in Shukla 's case (supra).
In all the cases now before us, the application consid ered by the High Court was for grant of a direction or order against the State or its Officers, acting in the performance of their purported duties.
The remedy sought against them was clearly covered by the Presidential inhibition which operates, under the Constitution, which is supreme, against the High Courts.
Hence, whatever may be the grievances of the detenus, with regard to the place of their confinement, the supply of information to them, their desire to get treatment by their own private doctors or to obtain some special or additional food required by them from their own homes, or to leave the place of their confinement temporari ly to go to some other place to perform some religious ceremony or other obligation, for which they had erroneous ly sought permission and directions of the Court subject to any conditions, such as that the detenus could be accompa nied by the police or remain in the custody of the police during the period, are not matter which the High Court had any jurisdiction to consider at all.
It was, therefore, quite futile to invite our attention to the allegations of petitioners about supposed conditions of their detention.
Indeed, on the face of it, the nature of the claims made was such that they are essentially matters fit to be left to the discretion and good sense of the State authorities and officers.
It is not possible to believe, on bare allega tions of the kind we have before us, that the State authori ties or officers will be vindictive or malicious or unrea sonable in attending to the essential needs of detenus. ' These are not matters which the High Court could consider, in petitions under Article 226 of the Constitution, whatever be the allegations made on behalf of detenus so as to induce the High Court to interfere.
The High Courts can only do so under Article 226 of the 752 Constitution if they have authority or power to do it under the Constitution.
Devoid of that power, the directions, which may be given by a High Court after such enquiries as it makes, would be useless as they will not be capable of enforcement at all during the Emergency under the law as we find it in our Constitution.
It will be noticed that, in most of the cases before, us, the demands made by the detenus have become infructous either because they have been promptly met by the State concerned under orders of a High Court, without any attempt by the State to do anything more than to question the juris diction, quite properly, of the High Court to give such directions, or because the time to which it related has expired so that there has remained nothing more than a question of law or principle for us to be called upon to determine.
I cannot help observing, having regard to some of the allegations made, that they could not be at all easily accepted by any reasonable person and may have been proved to be totally unfounded if they had been actually investi gated and tried.
If the State Governments promptly met, as they seem to have done, all reasonable requests, either before or after the orders of the High Court, without questioning anything other than the power of the High Court to give the directions given it could not be readily in ferred that all the allegations are either correct or that the Governments concerned are taking any unreasonable stands.
Indeed, we have been requested by the Solicitor General to indicate the lines on which requests by detenus, of the kind we now find in the cases before us should be dealt with.
These are matters entirely outside the scope of our judicial functions.
We cannot suggest what a comprehen sive set of rules on such subjects should be.
All that we need say on such a subject is that the attitude on behalf of the State has been very reasonable and proper in this Court.
And, we have no doubt that any attempt to formulate uniform rules on such matters by authorities concerned and empow ered to do so will also disclose the same reasonableness.
Speaking for myself, I am inclined to suspect that a number of allegations made on behalf of the detenus have the oblique motive of partisan villification or political propa ganda for which Courts are not proper places.
I would not like to make any further comments on this aspect.
I would next like to make a few observations about the contention most vehemently pressed for acceptance by us by Mr. Seervai appearing on behalf of the respondents.
It was that we should adjudicate upon the validity of the rules regulating conditions of detention which are being applied to the detenus.
The rules and the enactments under which they have been made have been considered in the judgment of my learned brother Jaswant Singh.
I do not propose to.
cover the same ground afresh.
I .am in complete agreement with all that my learned brother has said.
I would, howev er, like to add some observations on the main ground upon which the validity of the rules is assailed.
It was urged before us that rules regulating conditions of their deten tion cannot be either so made or 753 administered as to amount to punitive detention of the detenus.
Reliance was placed on Haradhan Saha 's case (supra), where a Constitution Bench of this Court said (at p. 2100): "The power of preventive detention is qualitatively different from punitive deten tion.
The power of preventive detention is a precautionary power exercised in reasonable anticipation.
It may or may not relate to an offence.
It is not a parallel proceeding.
It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched.
An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal.
The pendency of prosecution is no bar to an order of preventive detention.
An order of preven tive detention is also not a bar to prosecution".
In Haradhan Saha 's case, this Court was concerned with indicating how preventive detention and punitive detention belong to two very different and distinct categories or could be separately classified from the point of view of article 14 of the Constitution.
Their objects and social purposes may be very different in hue and quality.
The procedures applicable in cases of the two types are certain ly radically different.
The authorities entrusted with the power of ordering punitive and preventive detentions also act on very different principles and for very different reasons.
The Constitutional justification for preventive detention was considered by this Court at some length in Shukla 's case (supra).
Although preventive detention, which is constitutionally sanctioned in this country, and punitive detention may be qualitatively different and be regulated by entirely different procedures and may have very different immediate objectives, yet, if we closely examine the total effects and ultimate social purposes of detention, whether preventive or punitive, it seems to me, speaking entirely for myself, that the theoretical distinctions become less obvious.
It seems to me that the broad purpose of all action which results in the detention of a person by the State or its officers must necessarily be a deprivation which could, if their effects on the detenu alone were to be considered, be not incorrectly described as "punitive".
Again, "preventive" detention, like "punitive" detention, may have some therapeutic or reformative purposes behind them for the detaining authorities viewing the matters from administrative or psychological points of view necessitating some action in national interest.
Some jurist, who under takes a study of the subject, may discover certain broad similarities of social purposes, side by side with the distinctions already pointed out by this Court.
In Shukla 's case I indicated that the exercise of power of preventive detention during an Emergency may be viewed as a purely administrative.
to use the term employed by Sir William Hordsworth.
even "political" action lying in an area which is completely protected from judicial scrutiny.
As we indicated in Shukla 's case, high 754 authority can be cited for such a proposition [see Liver sidge 's(1) case, and Rex vs zadiq(2)].
The result seems to me to be that the principle that the doctrine of State necessity is not available to a State against its own citizens becomes inapplicable during an Emergency, at least as a result of the suspension of enforceability of the rights of citizens under Articles 19 and 21 ,of the Consti tution.
This seems to me to flow directly from the implica tions of the maxim "Salus Populi Est Supreme Lax" (regard for public welfare is.
the highest law) applied by us in Shukla 's case (supra) and by English Courts in Liver sidge 's case (supra) and Zadig 's .case (supra).
.This, however, does not mean that the persons detained are with out any remedy as was pointed out in Shukla 's case.
The result only ' is that the remedy for all their, grievances lies, in times of Emergency, with the executive and adminis trative authorities of the State where they can take all their complaints.
Here, we have to be content .with de claring the legal position that the High Courts, acting under article 226, have not been given the power to interfere in any matter involving the assertion or enforcement of a right to personal freedom by the detenus during an Emergen cy, when exercise of such power of High Courts is suspend ed.
We are not concerned in these cases with other kinds of claims which may arise before the ordinary criminal or civil courts for wrongs done by officers acting maliciously in purported exercise of their powers.
We are only concerned here with the powers of High Courts under article 226 of the Constitution.
I have no doubt whatsoever, that if the object of a proceeding is to enforce the fundamental right to personal freedom, a High Court 's jurisdiction under article 226 is barred during an Emergency even if it involves adjudication on the question of vires of a rule made under enactments authorising preventive detention.
I find it impossible to invalidate a rule either intended for or used for regulating the conditions of detention of a person detained under one of the Acts authorising preventive detention, on the ground that the rule could only be used for persons in "punitive" detention.
The attack on the validity of such a rule cannot succeed on the ground that the object of the rule should be shown to be preventive and not punitive.
I fail to find a reasonably practical method of distinguishing a rule which could be used for those in preventive detention under an Act authorising it from another rule which could only apply to persons in punitive detention undergoing sentences of imprisonment.
These are really administrative matters with which High Courts can have no concern for the reasons given above and also in Shukla 's case (supra).
Learned counsel for the detenus appear to me to be resurrecting the ghost of a "Natural law" which we thought we had laid to rest in Shukla 's case (supra).
As certain arguments based on what looks like "National Law" have been advanced again before us, I may cite an instructive passage from Judge Cordozo 's "Nature Of the Judicial Process".
He said: (1) ; (2) ; 755 "The law of nature is no longer conceived of as some thing static and eternal.
It does not override human or positive law.
It is the stuff out of which human or posi tive law is to be woven, when other sources fail.
The modern philosophy of law comes in contact with the natural law philosophy in that the one as well as the other seeks to be the science of the just.
But the modern philosophy of law departs essentially from the natural law philosophy in that the latter seeks a just, natural law outside of posi tive law, while the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law out of what it is and of what it is becoming. 'the natural law school seeks an absolute ideal law, 'natural law '.
. . by the side of which positive law has only secondary importance.
The modern philosophy of law recog nizes that there is only one law, the positive law, but it seeks its ideal side, and its enduring idea.
" I respectfully agree with this statement of the rela tionship between natural law and positive law today, in the application of law by courts governed by and subject to the limitations of a written Constitution such as ours.
Let us, however, assume, in order to test the correctness of the proposition, that a rule of natural law, having as much force and validity as a rule of positive law embodied in a statute, has been infringed.
Let us go a little further, and even assume that a rule embodied in a statute has been violated by an authority functioning under the Constitu tion in either framing or administering a rule.
Can Courts, exercising powers under Article 226, declare that rule or purported action of an executive authority dealing with a detenu under the rule, or in exercise of its discre tion, to be ultra vires ? We are all aware of the dictum of Justice Holmes that "law is not logic".
Nevertheless, I do not think that the Courts have the power to persue a logic of their own to overcome what the letter of the Constitution clearly prohibits.
The precedents we have discussed at length in Shukla 's case indicate the declarations of law, that Articles 19 and 21 embrace every aspect of an alleged infringement of the right to personal freedom by a State authority or officer purporting to act under a law, by which we are bound, Even if the action violates a protection conferred by Article 21 upon citizens as well as non citi zens in ordinary times, yet, the result of the suspension of the protection given by Article 21 must necessarily be that the protection cannot be enforced during an Emergency.
If that be the effect of the Presidential declaration under Article 359, as we declared it to be after a very anxious consideration in Shukla 's case we cannot go behind this declaration of law and the express letter of the law as embodied in our Constitution, and enforce what may be cov ered by the right to personal freedom in ordinary times whether it parades under the guise of natural law or statu tory law or Constitutional, law.
This consequence seems to me to flow logically and naturally and necessarily from the whole trend of reasoning and, in any ease, from the actual declaration of law and the conclusion recorded by us in Shukla 's ease.
I would, therefore, consider any 14 112SCI/77.
756 stray sentences or expressions of opinion, in our judg ments in Shukla 's case, which may, torn out of their con text, give a contrary impression, to be mere obiter dicta.
For the reasons given above, as well as those given by my learned brother Jaswant Singh, I concur with the orders proposed by my learned brother.
| IN-Abs | The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 provides that security prisoners shall not be allowed to supplement their diet even at their own expense, restricts the security prisoner from receiving funds from relatives and friends; restricts the number of meetings with relatives and friends and medical attention is allowed only through the Medical Officer of the prison in the same way as a convicted criminal and so on.
Writ Petitions field by the detenus under articles 226, and 227 of the Constitution, two High Courts .have struck down the Order as ultra vires.
On appeal it was contended by the State that the right of a person to move.
any Court for the enforcement of the rights conferred by articles 14, 19, 21 and 22 of the Constitu tion having been suspended by the Presidential Orders of June 27, 1975 and January 8, 1976 issued under article 359(1) for the period during which the Proclamation of Emergency was inforce, no person had locus Mandi to move an appli cation under article 226 for the 'issue of a writ to enforce any right to personal liberty.
Allowing the appeals, (per Ray, C.J. and Jaswant Singh, J.) HELD: The Writ Petitions were not maintainable and the High Courts were clearly in error in passing the impugned directions which were not warranted by any relevant law including the law relating to preventive detention.
[732 D] 1.
It is well settled by the decisions of this Court that if a person was deprived of his personal liberty not under the 'Defence of India Act, 1962 or any rule or order made thereunder but in contravention thereof, his locus standi to move any court for the enforcement of the rights conferred by articles 21 and 22 was not barred.
On the other hand since the Presidential Orders dated June 27, 1975 and January 8, 1976 were not circumscribed by any limitation, their applicability was not made dependent upon the fulfil ment of any conditions precedent.
They imposed a total or blanket ban on the enforcement of the fundamental rights conferred by articles 19, 21 and 22.
There is,therefore, no room for doubt that these Presidential Orders unconditional ly suspended the enforceability of the right conferred upon any person, including a foreigner, to move any Court for the enforcement of the rights conferred by articles 14, 19, 21 and 22 of the Constitution.
[742 E, G H] Additional District Magistrate, Jabalpur vs Shiva Kant Shukla , Makhan Singh vs State of Punjab , State of Maharashtra vs Prabhakar Pandurang Sanz giri [1966] 1 S.C.R. 702 A.I.R. 1966 S.C. 424, Dr. Ram Manohar Lohia vs State of Bihar 1966 S.C. 740, A.K. Gopalan vs The State of Madras and Kharak Singh vs State of U.P. [1964] 1 S.C.R. 332 A.I.R. 1963 S.C. 1295, followed, 720 2.
When a person has no locus standi to move any Court to challenge his order of detention, the High Court could not issue directions disregarding the provisions of the Act, which is a self contained code, and particularly sections 5 and 12(6) which are mandatory.
[745 F H] Maqbool Hussain vs The State of Bombay ; , followed.
As Articles 19, 21 and 22 of the Constitution have been suspended during the operation of the Proclamation of Emergency, the Conservation of Foreign Exchange and Preven tion of Smuggling Activities Act and the orders made or passed thereunder were not open to challenge on the ground of their being inconsistent with or repugnant to articles 14, 19, 21 and 22 of the Constitution in view of the Presiden tial Orders, dated June 27, 1975 and January 8, 1976.
[742 G H] In the instant case the detenus covertly sought to enforce the vary rights which were suspended.
It was not open to the High Courts to strike down the impugned clauses of the Maharashtra Conditions of Detention Order 1974.
The avowed object of the Act, as mainrest from its preamble, being the conservation and augmentation of foreign exchange and the prevention of smuggling activities secretly organised and carried on, it is essential that contact 0f the detenus with the outside world should be reduced to the minimum.
It is for the State Governments who are in full possession of all material facts and not for the Courts who have neither the necessary knowledge of the facts nor the.
legal competence, to regulate conditions of detention Of persons, including their maintenance, interviews or communi cations with others.
[746 A C] 5.
When a person is detailed, he can exercise only such privileges as are conferred on him by the order of detention or by the rules governing his detention.
State of Maharashtra vs Prabhakar Pandurang Sanzgiri [1966] I SCR 702AIR 1966 S.C. 424 referred to.
The mere fact that a detenu is confined in a prison for the sake of administrative convenience does not entitle him to be treated as a civil prisoner or to be governed by the provisions of the Prisons Act.
The view of the High Courts to the contrary cannot be sustained.
[746 D E] Maqbool Hussatn vs The State of Bombay ; , followed.
The contention that the Presidential Orders did not bar the Court from examining the vires of the detention orders because what was sought to be enforced was not a right of personal liberty but a redress against unreasona bleness of the order was misconceived.
The Presidential Orders imposed a blanket ban on every judicial enquiry into the validity of an order depriving a person of his personal liberty irrespective of whether it stems from the initial order directing his detention or from an order laying down the conditions in his detention.
[743 A E] Additional District Magistrate, .Jabalpur vs Shiva Kant Shukla followed.
(Per Beg.
J.) Concurring.
721 The High Courts, acting under article 226 have not been given the power to interfere in any matter involving the assertion or enforcement of a right to personal freedom by the detenus during an Emergency, when exercise of such power by the High Courts is suspended.
In times of Emergency the remedy for all the grievances of the detenus lies with the executive and administrative authorities of the State.
[754 B C] 1.
Shukla 's case held that 'it was not the fundamental rights which were suspended by the Presidential Order under article 359 but the right to move any Court for the enforcement of such right conferred by Part III as may be mentioned in the Order which is suspended for the duration of_the Emer gency.
This mean that it is the 'jurisdiction of Courts, to the extent to which a petitioner seeks to enforce the funda mental rights mentioned in the Presidential Order, which is suspended.
[749 G H] Additional District Magistrate, Jabalpur vs Shivakant Shukla AIR 1976 SC 1283, applied.
A.K. Gopalan vs State of Madras, ; , Kharak Singh vs State of U.P., [1964] 1 SCR 332, 1.
C. Golakanath vs State of Punjab ; His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala, [1973] Supp.
SCR 1 and Haradhan Saha vs The State of West Bengal & Ors., [1975] (1) SCR 778 AIR 1974 SCR 154 referred to.
The term "any other purpose" in article 226 means pur poses similar to those for which one of the specified writs would issue subject to certain exceptions The writ of habeas corpus is wider in scope than the enfrocement of fundamen tal rights which are available against the State only and its officers and agents.
But so far as mere directions or orders for any other purpose are concerned, the jurisdiction of High Courts does not extend to making orders against private individuals.
On the other hand, if an officer is duly empowered and has passed a detention order, that order is not capable of being questioned under article 226.
All enquiry into the conditions of exercise of such.
power is barred under the constitutional provisions during the emer gency.
[750 D E, H, 751 A, C D] 3.
In the instant case the remedy sought was clearly covered by the Presidential inhibition which operates against the High Courts.
The claims made by the detenus were not matters which the High Court could consider in petition under article 226 of the Constitution.
[751 E F] 4.
If the object of a proceeding is to enforce the fundamental right, to personal freedom, a High Court 's jurisdiction under article 226 is barred during an Emergency even if it involved adjudication on the question of vires of a rule made under enactments authorising preventive deten tion.
It is impossible to invalidate a rule either intended for or used for regulating the conditions of detention of a person detained under one of the Acts authorising preven tive detention on the ground that the rule could only be used for persons in punitive detention.
The attack on the validity of such a rule cannot succeed on the ground that the object of the rule should be shown to be preventive and not punitive.
[754 E F] 5.
Shukla 's case indicates that articles 19 and 21 embrace every aspect of an alleged infringement of the right of personal freedom by a State authority or officer purporting to act under a law.
Even if the action violates, a protec tion conferred by article 21 upon citizens as well as non citizens in ordinary times, the result of the suspension, of the protection given by article 21 must necessarily be that the protection cannot be enforced during an Emergency.
If that be the effect of the Presidential declaration under article 359, the Court cannot go behind this declaration of law and the express letter of the law as embodied in the Constitu tion and enforce what may be covered by the right to person al freedom in ordinary times whether it parades under the guise of natural law or statutory law or constitutional law.
[755 F H] 722
|
l Appeals Nos: 1132 1164 1976 794 (Appeals by Special Leave from the Judgment and Order dated 13 8 76 of the Bombay High Court (Nagpur Bench) in S.C.A. Nos.
1758, 1481, 2130/75, 358, 359/76, 2089, 1456, 1818, 1823, 1824, 1950, 1951/75, 53/76, 803/76, 1440/75, 340/76, 1449, 1452, 1394/75, 40, 771, 1431, 1531, 1532/76, 1652, 1622/75, 120, 126, 428, 610, 1317, 1831/75 respective ly) and Civil Appeal No. 1307 of 1976 (From the Judgment and Order dated 2 9 1976 of the Allahabad High Court in Civil Misc.
Writ No. 9257/75) and Civil Appeals Nos.
1040 of 1975 and 1220 1248 of 1976 (From the Judgment and Order dated 14 2 74 and 1 11;73 of the Punjab & Haryana High Court in Civil Writ Nos. 3150, 3145, 3210, 3254, 3287, 3288, 3293, 3456, 3457, 3458 63, 3469 3470, 3472, 3547 3550, 3564, 3565 3568, 3629/73 and 4004/74) and Special Leave Petition (Civil Nos. 3023 3027, 3894.
4026 4027, 3177 3197, 3203 3213, 3358 3359, 3392 3404, 3477 3483, 36613663, 3059 3060, 3487 3488, 4047, 3365 3377, 3406 3434, 34393464, 3495 3511, 3516 3517, 3519, 3529 3551, 3645 3660, 36803695, 3719 3782, 3787 3816, 3843 3846, 3853 3864, 3867 3868, 3696 3703, 3199, 3467 3476, 3524 3537, 3597 3621, 3889 3893, & 3899 3902/76. ' V.M. Tarkunde, (CAs.
1132 & 1147), section N. Khardekar, in CAs.
1132 & 1133 M/s. Vallabh Das Mohta, in CA.
1156/76, Dr. N.M. Ghatate, section Balakrishnan &A.M. Bapat, in CAs.
1132 & 1147 for the appellants in CAs.
1132 1136, 1147 & 1150 64.
S.B. Wad & Mrs. Jayashree Wad, for the Appellants in CAs.
1137 1146, 1148 49.
Niren De, Attorney General in CAs.
1132 & 1137, M/s. M.M. Kazi & M.N. Shroff for the Respondents Niren De, Attorney General, R.N. Sachthey, for the Attorney General in CAs.
1132, 1307 & 1040.
K. Rajendra Chowdhary, for the interveners M/s. Shankar Balaji Jagtap, Madan Lal Fakir Chand Dudheida and Chandrab han Roopchand Dakale (in CA.
1132).
L.N. Sinha, Sol.
O.P. Rana, CA.
No. 1307 of 1976, for the Appellants.
section Markendaya, for the Respondents in CAs.
1040/75 & 12201248 of 1976 : L.N. Sinha, Sol.
Genl., (1. section Wasu, Advocate General, Punjab) O.P. Sharma, Mrs. N. Uppal and Miss Musum Chaudhary, for the Appellants.
795 V.M. Tarkunde, in CA.
1223 (M/s, K.P. Bhandari.
J.B. Dadachanji and D.N. Mishra, For the Respondents in CAs.
1223 &1225/76.
Mr. V.M. Tarkunde, for Mrs. Gita Bhadur M/s.
K.P. Bhandari, J.B. Dadachanji, M.M. Ahuja & D.N. Mishra, for the Interveners Mrs. Gita Bhadur, Brij Bhushan Shinghal, Smt.
Led Amol Kaur, Mrs. Uma Shinghal in CA.
K.L. Jagga, D.D. Sharma, Sant Singh in CAs.
1220 48 and 1040.
R.N. Sachthey, State of Haryana.
For the Petitioners in: S.L.Ps.
(Civil) : Naunit Lal and Miss Lalita Kohli, SLPs.
3023 27, 3894 & 4026 27.
S.B. Wad and Mrs. Jayashree Wad, SLPs.
3177 97, 3207 13, 3358 59, 3392 3404, 3477 3483, 3661 3663, 3059 69, 3487 88 & 4047/76 & 3199/76.
Vallabh Das Mohta, N.M. Ghatate and section Balakrishnan, SLPs.
3365 77, 3406 34, 3439 64, 3495 3511, 3516 17, 3519, 3529 51, 3645 3660, 3680 95, 3719 82, 3787, 3816, '3843 46, 385364, 3867 68 of 1976.
K.B. Rohtagi, M.K. Garg and M.M. Kashyan, SLPs.
36963703/76.
A.G. Ratnaparkhi, SLPs.
3467 3476/76.
V.N. Ganpule, SLPs.
(Civil) Nos. 3524 27/76.
M.S. Gupta & B.B. Marwal, SLPs.
(Civil) Nos. 3597 3621/76.
R.A. Gupta, SLPs.
(Civil) Nos. 3889 93/76.
Mrs. section Bhandare, M.S. Narasimhan, A.K. Mathur, A. K. Sharma and K.C. Sharma, SLPs.
(Civil) Nos. 3899 3902/76.
The Judgments of A.N. Ray, C.J., M.H. Beg, P.N. Bhagwati and P.N. Shinghal, JJ. were delivered by Bhagwati, J., V.R. Krishna Iyer, J. gave a separate Opinion.
BHAGWATI, J. This is a group of appeals preferred by certain landholders in the State of Maharashtra against the judgment of the Bombay High Court upholding the constitu tional validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 (hereinafter referred to as the Principal Act) as amended by the Maharashtra Agricultur al Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1972 (hereinafter referred to as the Maharashtra Act 21 of 1975), the Maharashtra Agricultural Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1975 (hereinafter referred to as " 'Maharashtra Act 47 of 1975 ) and the Maharashtra Agricultural Lands (Ceiling of Holdings) (Amend ment) Act, 1975 (hereinafter referred 10 as Maharashtra Act 2 of 1976).
The Principal Act was enacted 3 206SCI/77 796 by the Maharashtra Legislature in implementation of the Directive Principles of State Policy contained in clauses (b) and (c) of article 39 of the Constitution.
It imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons.
During the subsequent years, various amendments were made in the Principal Act from time to time and the Principal Act, as amended upto that date, was included in the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964.
Thereafter certain further amendments were made in the Principal Act and the amending Acts were also included in the Ninth Schedule as a result of the Constitution (Thirty ninth Amendment) Act, 1975.
Then came three major amending Acts which, according to the appellants, introduced the vice of unconstitutionality in the Principal Act.
Maharashtra Act 21 of 1975 effected radical amendments in the Principal Act by lowering ceiling on agricultural holding and creating an artificial family unit for fixing ceiling on holding of agricultural land.
This amending Act was followed by Maha rashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 which affected certain further changes in the Principal Act but these are not very material for the purpose of the present appeals.
Since these three amending Acts were enacted after the Constitution (Thirty ninth Amendment) Act, 1975, they were included in the Ninth Schedule along with certain other enactments by the Constitution (Fortieth Amendment) Act, 1976.
The result was that the Principal Act, as amend ed by all the subsequent amending Acts including Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was protected against invalidation under article 31 B.
The appellants are landholders in the State of Maharash tra and since the effect of the provisions of the Principal Act, as amended by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was to expro priate a part of the lands belonging to them, they pre ferred writ petitions in the High Court of Bombay challeng ing the constitutional validity of the Principal Act as amended by these amending Acts on various grounds.
It is not necessary for the purpose of the present appeals to set out the different grounds on which the constitutional chal lenge was based, since none of these grounds has been pressed before us save one based on contravention of the second proviso to cl.
(1) of article 31A. the only contention that has been urged before us on behalf of the appellants is that the Principal Act, as it stands after its amendment by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 is void, in so far as it creates an artificial family unit and fixes a ceiling on holding of land by such family unit, since it is violative of the second proviso to.
clause (1) of article 31A and is not saved by the immunising provision enacted in article 31 B.
This contention was also urged before the High Court but it was negatived on the ground that article 3lB afforded complete immunity to the provisions of the Principal Act.
We may make it clear at this stage that for the sake of conven ience, when we hereafter refer to the Act, we mean the Principal Act as amended by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976.
797 The appellants in the present appeals assail this view taken by the High Court and the only question which, 'therefore, arises for consideration is as to.
whether the impugned Act, in so far as it creates an artificial concept of family unit for fixing ceiling on holding of land by such family unit, is in conflict with the second proviso to clause (1) of Article 31A and if it is, whether it is protected under Article 31 B ? Though logically the first part of the.
question as to infraction of the second proviso.
to clause (1 ) of Article 31A should receive our consideration earlier in point of time, it would be convenient first to examine the second part of the question, for if we are of the view that Article 31 B immunises the Principal Act against attack on the ground of violation of the second proviso to Article 31A, it would become unnecessary .to consider wheth er in fact there is any infraction of the second proviso to clause (1) of Article 31A.
But before we examine the scope and 'applicability of Article 3lB in the present case, it would be desirable to refer to a few relevant provisions of the Principal Act.
The Preamble and the long title of the Principal Act show that it was enacted to impose a maximum ceiling on the holding of agricultural land in the State of Maharashtra and to provide for the acquisition of land held in excess of ceiling and for the distribution of such land to landless and other persons with a view to.
securing the distribution of agricultural land in a manner which would best subserve the common.
good of the people.
Section 2 contains various definitions of which only one is material, namely that contained in subsection (11A).
That sub section defines family unit to mean a family unit as explained in section 4.
Section 3 imposes a prohibition on holding of land in excess of ceiling area and so far as material, it reads as follows: "3(1 ) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the com mencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided.
(2) All land held by a person, or as the case may be, a family.
unit whether in this State or any other part of India in excess of the ceiling area, shall, notwithstanding anything contained in any law for the time being in force or usage, be deemed to.be surplus land, and shall be dealt with in the manner hereinafter provided for surplus land.
In determining surplus land from the holding of a per son, or as the case may be, of a family unit, the fact that the person or any member of the family unit has died (on or after the commencement date or any date subsequent to the date on which the holding exceeds the ceiling area, but before the declaration of surplus land is made in respect of that holding) shall be ignored; and accordingly, the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died.
" 798 What shall be regarded as land held by a family unit is laid down in section 4, sub section ( 1 ) which provides: "(4) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit be deemed to be held by the family unit.
Then there is an explanation to this sub section which explains a 'family unit ' to mean: "(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters; if any; or (b) where any spouse 'is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and miner unmarried daughters of such deceased spouses.
" Section 5, sub section (1) read with the First Schedule provides for different ceilings for different classes of lands in the various districts and talukas of the State and sub sections (2) and (3) lay down the method of computation of the ceiling area where different classes of lands are held by a person or a family Unit.
Then follows section 6 which is in the following terms: "Where a family unit consists of mem bers which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area.
" This is followed by sections 8 to 11A which deal with re strictions on transfers and acquisitions and consequences of contraventions and sections 12 to 21A which provide inter alia for holding an enquiry for determination of land held in excess of the ceiling area and making of a declaration by the Collector stating his decision on the total area of land which is in excess of the ceiling area and the area, de scription and full particulars of the land which is delimit ed as surplus land.
Sub section (4) of section 21 provides that us soon as may be after the announcement of the decla ration, the Collector shall take in the prescribed manner possession of the land which is delimited as surplus and the surplus land shall, with effect from the date on which possession is taken, be deemed to be acquired by the State Government for the purposes of the Act and shall accordingly vest, without further assurance and free from all encum brances, in the State Government.
Sections 21 to 26 provide for determination and payment of compensation for the sur plus land acquired by the State Government.
Then follow provisions in sections 27 to 29 in regard to distribution of surplus land.
These provisions require the State 799 Government to distribute the surplus land.
in certain order of priority with a view.
to carrying out the purposes of the legislation.
Sections 30 to 36 lay down the procedure for holding inquiries under the Act and also provide for appeal mechanism.
These are followed by certain miscellaneous provisions in sections 37 to 49 which are not material for the purpose of the present appeals.
It will be seen from this brief resume of the relevant provisions of the Act that there are two units recognised by the Act for the purpose of fixing ceiling on holding of agricultural land.
One is 'person ' which by its definition in section 2, sub section (22) includes a family and 'fam ily ' by virtue of section 2, sub section (11 ) includes a Hindu Undivided family and in the case of other persons, a group or unit the members of which by custom or usage, are joint in estates of possession or residence, and the other is 'family unit as defined in ,the Explanation to section 4 sub section (1).
So far as the applicability of the Act to.
a 'person ' is concerned, there is no conceptual difficulty, for any person, natural or artificial, can hold land and if the land held by such person is in excess of the ceiling laid down in section 5, sub section (1 ) read with the First Schedule, the surplus land would vest in the State Govern ment.
But the Act has created an artificial 'family unit ' and a person and his spouse and their minor sons and minor unmarried daughters are clubbed together for the purpose of constituting a family unit and all lands held by each member of the family unit, whether jointly or separately, are aggregated together and by a fiction of law deemed to be held by the family unit.
We have described the family unit as contemplated in the Act as an artificial legal conception because in quite a few cases it would be different from the family as known in ordinary parlance: the latter would include 'even major sons and unmarried daughters which the former by its definition does not.
It is clear from the scheme of the Act that for the purpose of determining wheth er land is held in excess of the ceiling area, a family unit is taken as a unit and the limitation of ceiling area is applied in relation to the land deemed to be held by such family unit and in such a case, each individual member of the family unit is not treated as a separate unit for the purpose of applicability of the limitation of ceiling.
The land held by each member of the family unit is fictionally treated as land held by the family unit and to the aggregate of such land which is deemed to be held by the family unit, the limitation of the ceiling area is applied.
This feature of clubbing together the land held by each member of family unit for the purpose of applying the limi tation of ceiling.
area, it may be noted, was introduced by the amendments made 'by Maharashtra Act 21 of 1976 almost fourteen years after the Principal Act was enacted and it is interesting to notice the reasons why it had to be done.
The necessity for wide ranging radical land reforms in order to improve our rural economy was acutely realised when, on attaining independence, we became free to mould our destinies.
With that end in view, immediately after independence, the legislatures of the country started enact ing laws for bringing about agrarian reform as a part of the process of socio economic reconstruction.
The imposition of ceiling on agricultural holdings was found necessary as a part 800 of the scheme of agrarian reform because it was calculated to remove undue balance in society resulting from landless class on the one hand and concentration of land in the hands of a few on the ' other.
The concept of socio economic justice embodied in the Constitution in fact rendered the imposition of ceiling inevitable, as this step was symbolic of new social ideas.(1) The growth of monopolistic ten dencies in land ownership had to be arrested, if the optimum area was to be made available to the largest number of people.
The Panel on Land Reform set up by the Planning Commission in 1955, therefrom, unanimously accepted the principle that there should be an absolute limit to the amount of land which any individual might hold and .observed that the policy of imposition of ceiling should be able to.
make contribution towards achieving the following objec tives: (1) meeting the widespread desire to possess land; (ii) reducing glaring inequalities in ownership and use of land; (iii) reducing inequalities in agricultural income and (iv) enlarging the sphere of selfemployment.
The Second Five Year Plan also pointed out: "In the conditions of India large dis parities in the distribution of wealth and income are inconsistent with economic progress in any sector.
This consideration applies with even greater force land.
The area of land available for cultivation is necessarily limited.
In the past rights in land were the principal factor which determined both social status and economic opportunity for different groups in the rural population.
For building up a progressive rural economy, it is essential that dissimilarities in the ownership of land should be greatly reduced.
and added that this step would go a long way " to afford opportunities to.
land less sections of the rural population to gain in social Status and to feel a sense of opportunity equally with other sections of the community.
" It is emphatic that in the conditions which prevail in rural India, the possession of some land in itself would be an immunity against abject poverty and would ensure for the owner some minimum resources to fall back upon and his economic and social condition would also improve on account of his owning some land which he can call as his own.
The Agricultural Labour Enquiry conducted in the 1960s showed that the average of per capita income of an agricultural labourer with land was much more than the average or per capita income of an agricultural labourer without land.
The policy of imposing ceiling on agricultural holdings was, therefore, initiated in the country with the twin objectives of changing the skewed distribution of agricul tural land ownership in the country and making some land available for distribution among the landless.
It was in implementation of this policy that the Principal Act was passed by the Maharashtra Legislature in 1961.
The ceiling which was initially fixed was found to be rather high and it had, therefore, to be lowered by (1) India Progress of Land Reforms 1955, p. 19.
801 subsequent amendments.
But until the enactment of Maharash tra Act 21 of 1976, ceiling was made applicable only to holding of agricultural at lands by individuals.
However, it was felt that if the ceiling law was to be really effec tive, it was necessary to take the family as a unit for the purpose of applying the ceiling.
There were two main rea sons which inclined the legislature to this view.
One was that, in the context of the social and cultural realities of Indian rural life, "family is the real operative unit in land ownership as in land management" and, therefore, in the fixing of the ceiling, the aggregate area held by all the numbers of the family should be taken into account"(1) and the other was that taking the family as a unit and imposing ceiling on the aggregate land held by all the members of the family acted as a disincentive to effect mala fide transfers in the names of close relations such as wife, minor sons and unmarried daughters with a view to bringing the holdings within the ceiling and operated to nullify such transfers where they had been effected with a view to circumventing the ceiling imposed on land holding.
Maharashtra Act 21 of 1975, therefore, introduced the con cept of family unit and fixed ceiling on holding of agricul tural land by the family unit.
The question is whether the Act, in so far as it makes this radical provision, is pro tected under Article 31 B, even if it is found to violate the second proviso to clause (1) of Article 31A.
The determination of this question turns on the true interpretation of Article 31 B and its applicability in relation to the second proviso to clause (1) of Article 31A. Article 31A, clause (1) provides that, notwithstand ing anything contained in Article 13, no law falling within any of the categories specified in sub clauses (a) to (e), shall be deemed to be void on the ground that it is incon sistent with or takes away.
or abridges any of the rights conferred by Article 14, Article 19 or Article 31.Then follow two provisions which are in the following terms: "Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto.
unless such law, having been reserved for the consideration of the President, has received his assent ; Provided further than where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his per sonal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure stranding thereon or appurtenant thereto, unless the law relating to acquiring of such land, building or structure, provides for payments of compensation at a rate which shall not be less than the market value thereof.
" Article 31A together with the first proviso was added in the Constitution by the Constitution (First Amendment) Act, 1951, while the (1) Report of the Committee on 'Size of Holdings ' set up by the Panel on Land Reforms.
802 second proviso was introduced by the Constitution (Seven teenth Amendment) Act, 1964.
Article 31 B was .also intro duced in the Constitution at the same time as Article 31A and it reads as follows: "31 B.
Without prejudice to.
the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away of abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judg ment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
" The argument of the appellants was that on a true con struction of the language of Article 31 B a post Constitu tion enactment such as the Act, is protected from invalida tion only when it rakes away or abridges any of the rights conferred by any provision of Part III and not when it merely transgresses a restriction on legislative competence imposed by any provision of that part and is, therefore, inconsistent with any provision.
The later ground of vali dation during curing generally any inconsistency with any provision of Part III is available only in case of pre Constitution legislation.
What is, therefore, to be seen in the present case is whether any right is conferred by the second proviso to clause (1) of Article 31A which has been taken away or abridged by the Act, for then alone can the Act which is a post Constitution enactment, earn the immuni ty given by Article 31 B.
The appellants contended that the second proviso to clause (1) of Article.
31A does not confer any fundamental right but merely imposes a limitation on the legislative competence of the legislature and, therefore, Article 31 B does not exonerate the Act from its obligation to conform with the requirement of the second proviso to clause (1 ) of Article 31A.
We do not think this contention is well founded.
It is plainly erroneous.
It flies in the face of the express language of Article 31 B and also ig nores the true meaning and effect of the second proviso to clause ( 1 ) of Article 31 A. Whilst interpreting Article 31 B it is necessary to bear in mind the object and purpose of the enactment of that Article by the Constitution (First Amendment) Act, 1951.
This article was introduced in the Constitution within almost eighteen months of the commencement of the Constitu tion, because it was found that agrarian reform legislation was running into rough weather and the policy of agrarian reform was being frustrated.
Without a dynamic programme of agrarian reform, it was not possible to change the face of rural India and to upgrade the standard of living of the large masses of people living in the villages.
In fact the promise of agrarian reform is implicit in the Preamble and the Directive Principles of State Policy and it is one of the economic foundations of the Constitution.
It was, therefore felt that laws enacted for the purpose of bringing about agrarian reform in its widest sense agrarian reform which would be 803 directed against gross inequalities in land ownership, disincentives to production and desparate backwardness of rural life and which would cover not only abolition of intermediary tenures zamindaris and the like but restructur ing of village life itself taking in its broad embrace the entire rural population should be saved from invalidation.
It was with this end in view that Article 31 B was intro duced in the Constitution along with Article 31A.
The object 'and purpose of introducing Articles 31A and 31 B was to protect agrarian reform legislation from invalida tion.
We shall consider the provisions of Article 31A a little later when we examine the true meaning and effect of the second proviso to clause (1) of that ,article.
But so far as Article 31 B is concerned, it is clear on its plain terms that it saves from invalidation an enactment specified in the Ninth Schedule even if it happens to be "inconsistent with or takes away or abridges any of the rights conferred by, any provisions, of Part III".
It is immaterial whether such enactment is inconsistent with any provisions of Part III or takes away or abridges any of the rights conferred by any such provisions, for both infirmi ties are cured.
by Article 31 B.
The words "such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part" in .Article 31 B are clearly an echo of the language of clauses (1) and (2) of Article 13 and they have obviously been employed because the enactment specified in the Ninth Schedule may be pre Constitution as well as post Constitution laws.
But it would not be right to introduce an artificial dichotomy in Article 31 B by correlating the first part of the expression, namely, "is inconsistent with any ' provisions, of this Part" and confining its applicability to pre Constitution legislation and correlat ing and confining the applicability of the other part of the expression, namely, "takes away or abridges any of the rights conferred by, any provisions of this Part to post Constitution legislation.
That would be a highly unnatural construction unjustified by the language of Article 31 B.
Both the parts of the expression, on a plain natural con struction of the language of Article 31 B, apply equally to.
post Constitution legislation as welt as pre Constitu tion legislation.
It must be remembered that the aim and objective of Article 31 B is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part 111 and it must, therefore.
be so interpreted as to have the necessary sweep and coverage.
It is an elemen tary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation.
Moreover, we must not forget.
as pointed out by Mr. Justice Holmes, that it is the Con stitution that we are expanding.
Our Constitution has a social purpose and an economic mission and every article of the Constitution must.
therefore.
be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomplish.
The Court must place an expansive interpretation on the language of Article 31 B so as to carry out the object and purpose of enacting that article.
We must, in the circumstances, hold that Article 31 B is sufficiently wide to protect legislation not only where it takes away or abridges any the fights conferred by any provisions of Part III, but also where it 804 is inconsistent with any such provisions.
It must follow a fortiori that even if the second proviso to clause (1) of Article 31A is construed as not conferring any fundamental right but merely imposing a restriction on legislative competence, the Act, in so far as it contravenes or is inconsistent with the second proviso to clause (1) of arti cle 31A would still be saved from invalidation by Article 31 B.
But we are clearly of the view that the second proviso to clause(1) of Article 31A does confer a fundamental right.
This conclusion is inevitable if we look at the conspectus of the provisions contained in Article 31 and 31A.
These provisions occur under the heading "Right to Property" and they define and delimit the right to property guarantied under Part III of the Constitution.
Article 31, clause (1) protects property against deprivation by executive action which is not supported by law.
It is couched in negative language, but, as pointed out by S.R. Das, J., in State of Bihar vs Kameshwar Singh(1) ' ' it con fers a fundamental right in so far as it protects private property from State action.
The only limitation put upon the State action is the requirement that the authority of law is pre requisite for the exercise of its power to de prive a person of his property.
This confers some protec tion on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right.
It is to emphasise this immunity from State action as a fundamental right that ' the clause has been worded in negative language".Article 31, clause (1) thus, by giving limited immunity from State action, confers a fundamental right.
Clause (2) of Article 31 then proceeds to impose limitation on the exercise of legislative power by providing that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitioning of property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law.
This clause is also couched in negative language, but it confers a funda mental right of property on an individual by declaring that his property shall not be liable to be compulsorily acquired or requisitioned except for a public purpose and the law which authorises such acquisition or requisitioning must provide for "payment of an amount which may be either fixed by such law or which may be determined in accordance with the principles and given in the manner specified in such law".
The limitation imposed on the power of the legisla ture to make a law authorising acquisition or requisitioning of property is the measure of the fundamental right con ferred by the clause.
It was for this reason pointed out by this Court in R.C. Copper vs Union of India(2): "The function of the two clauses clauses (1) and (2) of Article 31 is to impose limitations on the power of the State and to declare the corresponding guarantee of the individual to his right to property.
Limitation on the power of the State and the guarantee of right are plainly complementary" (Emphasis supplied).
Article 31A (1) at 988. 2 ) ; at 569.
805 carves out an exception to the applicability of Article 31 and also Articles 14 and 19 and immunises certain categories of agrarian reform legislation from attack on the ground that they violate any, of these three articles.
Even if any agrarian reform legislation falling within the specified categories infringes Articles 14, 19 and 31, it would not be invalid.
Having regard to the high objective of bringing about agrarian reform in the country with a view tO improving the life conditions of the common man, such agrarian reform legislation is not required to meet the challenge of any of these three articles.
But, in order to earn this immunity, the first proviso requires that such agrarian reform legislation when made by a State must re ceive the assent of the President.
That is a condition for the applicability of the exception contained in Article 31 A.
Then follows the second proviso which enacts an exception to this exception.
It says that even where a law makes any provision for acquisition by the State.
of any estate and thus falls within one of the categories" specified in Arti cle 31A, it would not qualify for immunity under me provi sions of that article, if it seeks to acquire any portion of the land held by a person under his personal cultivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law, in order to be valid, would have to provide for payment of compensa tion at a rate which shall not be less than the market value of the land sought to be acquired.
This provision is also couched in negative language like clauses (1) and (2) of Article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held ' by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment of compensation at a rate not less than the market value.
This limitation on the legislative power of the State is the measure of the fundamental right con ferred on the owner of the land.
It is by imposing limita tion on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit.
Restric tion on legislative competence and conferment of right on the holder of land within the ceiling limit are complemen tary to each other.
They are merely two different facets of the same provision.
What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of the holder of land within the ceiling limit.
The former secures the latter.
The second proviso in effect guarantees protection to the holder against acquisition of that portion of his land which is within the ceiling limit except on payment of the market value of such land.
It will, thus, be seen that the second proviso clearly confers a right of property on a person holding land under his personal cultivation.
This interpretation was, however, assailed by the appellants on the ground that it would convert the second proviso.
into a substantive provision and that would be contrary to the well recognised canon of construction that a proviso must be read so.
as to.
carve out from the main provision something which would otherwise fall within it.
Now, it is true that the proper function of a proviso is to except or qualify some thing enacted in the substantive clause, which, but for the provision would be within that clause but ultimately, as pointed out by this 806 Court in Ishverlal Thakorelal Almaula vs Motibai Naglib hai(1) " the question is one of interpretation of ' the proviso: and there is no rule that the proviso must always be restricted to the ambit of the main enactment".
Here, the intention of the legislature in enacting the second proviso is very clear and that is to ensure payment of full market value as compensation to a person in personal culti vation of his land where a portion of the land within the ceiling limit applicable to him is acquired by the State Government.
But for the second proviso, even if a law authorising acquisition of land within the ceiling limit did not provide for payment of compensation, it would be pro tected from invalidation under Article 31A.
That was not a result which the Parliament favoured.
Parliament was anx ious to protect the interest of the small holder, the common man who holds land within the ceiling limit and therefore enacted the second proviso requiring that a law which permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value.
The second proviso in fact restores the right of property with added vigour in case of small holdings of land.
it goes much further than Article 31, clause (2) and provides a larger protection, in that, clause (2) of Article 31.
merely requires that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner in which it may.
be given and this may be very much less than the market value while the second proviso insists that at the least, full market value must be paid for the acquisition.
Thus, there can be no doubt that the second proviso confers a right and this right is higher than the one under clause (2) of Article 31 on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him and if the Act, by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural land by such family unit, enables land within the ' ceiling limit to be acquired without payment of full market value, it would be taking away or abridging the right conferred by the second proviso.
In that event too, it would be protected by Article 31 B since it is included in the Ninth Schedule.
Before we part with this contention based on Article 31 B, we must refer to one other argument advanced on behalf of the appellants with a view to repelling the.
applicabili ty of Article 31 B.
The appellants leaned heavily on the Explanation to.
section 3 of the Constitution (Seventeenth Amendment), Act, 1964 and urged that this Explanation shows that an acquisition made in contravention of the second proviso to clause (1) of Article 31A is void and does not have the protection of Article 31 B, even if the law under which such acquisition is made is included in the Ninth Schedule.
We do not think this contention is well rounded and in fact not much argument is needed to negative it.
The Constitution (Seventeenth Amendment) Act, 1964 was enacted by the Parliament with a view to.
expanding the scope of Article 31A by enlarging the meaning of the expression (1) [1966] 1 S.C.R. 367 at 373.
807 'estate ' 'and while doing so, the parliament added the second proviso to clause (1) of Article 31A.
The Ninth Schedule was also amended by including certain State enact ments relating to agrarian reform in order to remove any uncertainty or doubt that may arise in regard to their validity.
One of the State enactments included in the Ninth Schedule by this amendment was the ' Rajasthan Tenancy Act, 1955 which was added as Entry 55.
Section 3 which amended the Ninth Schedule carried the following Explanation: "Explanation.
Any acquisition made under the Rajasthan Tenancy Act, 1955 (Rajas than Act 111 of 1955), in contravention of the second proviso to clause (1) of article 31A shall, to the extent of the contravention, be void.
" This Explanation, contended the appellants, explained the scope and effect of the inclusion of an enactment in the Ninth Schedule vis a vis contravention of the second proviso to clause (1) of Article 31A and indicated the parliamentary intent that such inclusion is not intended to save the enactment from the invalidating consequence of the contravention.
It was urged that, by taking the illustra tion of the Rajasthan Tenancy Act.
, 1955, the Explanation sought to explain and clarify that Article 31 B is not intended to be construed as validating contravention of the second proviso to clause (1 ) of Article 31A.
This contention, which seeks to treat the Explanation as illus trative in character, is clearly fallacious.
It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to Clear up any doubt or ambiguity in it.
But ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention.
It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur.
Therefore, even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations.
The Explanation does no more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of Article 31A, it shall, to the extent of the contravention, be void.
Obviously, this Explanation was rendered neces sary, because otherwise, acquisition under the Rajasthan Tenancy Act, 1955, even if in contravention of the second proviso to clause (1) of Article 31A, would have been valid under Article 31 B and that result the Parliament did not wish to produce.
It was manifestly not the intention of the Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where it conflicts with the second proviso to clause (1) of Article 31A and that Article 31 B should not protect it from inval idation.
If such had been the intention of the Parliament, it would have been expressed in clear and unambiguous terms by providing that an acquisition made under any enactment included in the Ninth Schedule, in contraven 808 tion of the second proviso to clause (1) of Article 31A shall, to the extent of the contravention, be void.
Parlia ment would not have resorted to the device of picking out one legislation from the enactments specified in the Ninth Schedule and declared only in relation to that legislation that any acquisition made under it in contravention of the second proviso to clause ( 1 ) of Article 31A shall be void.
The Explanation, in our view, far from supporting the con struction contended for on behalf of the appellants, mili tates against it.
We may also in the passing refer to the view taken by the Allahabad High Court in regard to the true meaning and effect of Article 31 B in relation to the second proviso to clause (1 ) of Article 31A.
The Alla habad High Court took the view in a decision given on 14th November, 1975 which is the subject matter of Civil Appeal No. 1307 of 1976 in this Court that the second proviso to clause (1) of Article 31A places restriction only on executive action and not on legislative action and since Article 31 B validates merely enactments specified in the Ninth Schedule: and not the executive action taken under those enactments, the placing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acqui sition under the Act should conform to.
the restriction set out in the second proviso to clause (1) of Article 31A.
This view taken by the Allahabad High Court is a little difficult to understand.
The protection afforded by the second proviso to clause (1) of Article 31A is undoubtedly against acquisition by the.
State but this protection is secured by imposing limitation on exercise of legislative power and it is the law under the authority of which the acquisition is made which has to conform to the requirement of this proviso.
If the law authorising acquisition does not conform with this requirement, it would be void and the acquisition made under it would be unlawful, but for Article 31 B.
It is indeed difficult to see how the law authorising acquisition can be valid and yet acquisition mane under it can be void as offending the second proviso to clause (1) of Article 31A.
The view taken by the Allahabad High Court is plainly erroneous and must be rejected.
We are, therefore, of the view that even if the Act, in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (1) of Article 31A, it is protected by Article 31 B by reason of its inclusion in the Ninth Schedule.
We may point out that the same view has been taken by this Court in a decision given in regard to the constitutional validity of the Gujarat Agricultural Land Ceiling Act (27 of 1961) in Hasmukhlal Dayabhai vs State of Gujarat(1).
This view taken by us in regard to the applicability of Article 31 B renders it unnecessary to consider whether in fact the Act is violative of the second proviso, to clause (1) of Article 31A.
But (1) ; 809 since full and detailed arguments were advanced before us on this question, we do not think it would be right if we refrain from expressing our opinion upon it.
We fail to see how any violation of the seconded proviso.
to clause (1) of Article 31A is at all involved in so far as the Act creates an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit.
The inhibition imposed by the second proviso.
to clause (1) of Article 31A is against acquisition by the.
State of any portion of land held by a person under his personal cultiva tion which is within the ceiling limit applicable to; him, unless the law relating to such acquisition provides for payment of full market value as compensation.
There are two basic conditions which must exist before this inhibition is attracted.
One is that land must be.
held by a person under his personal cultivation and the other is that there must be a ceiling limit applicable to such person.
Where these two conditions are satisfied, the State is prohibited from acquiring any portion of the land within the ceiling limit unless the law authorising such acquisition provides for payment of compensation at a rate not less than the market value.
Now in the present case, the Act has created an artificial concept of a family unit and aggregated the land held by each member of the family unit for the purpose of applying the limitation of ceiling areas.
It could not be disputed by the appellants that the State Legislature had legislative competence to do so.
The only argument advanced on behalf of the appellants was that this device adopted by the State Legislature of clubbing together the land held by each member of the family unit and supplying the limitation of ceiling area to the aggregation of such land, would in many cases have the effect of taking away without payment of full market value as compensation the land held by the wife or minor son minor unmarried daughter, even though it is within the ceiling area applicable to the wife or minor son or minor was married daughter and hence the Act, in so far as it adopted this device, falls foul of the second proviso to clause (1) of Article 31A.
But this argument ignores the scheme determination of ceiling area adopted in the Act.
There are, as already pointed out by us, two units recognised by the Act for the purpose of fixing ceil ing on holding of agricultural land.
One is 'person ' and the other is 'family unit '.
Where there is a family unit as defined in the Explanation to clauses (1) to section 4., it has to be taken as a unit for the purpose of determining whether land is held in excess of the ceiling area and for this purpose all land held by each member of the family unit, whether jointly or separately, is required to be aggregated and it is deemed to be held by the family unit.
There, an individual member of the family unit is not re garded as a unit for the purposes of applying the limitation of ceiling area.
The ceiling limit in such a case is ap plicable only to the family unit and not to an individual member of the family unit.
It would not, therefore, be possible to.
say in the case of an individual member of the family unit that, when any land held by him under his per sonal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit, the acquisition is of any land "within the ceiling limit 810 applicable to him" and hence in such a case there would be no question of any violation of the provision enacted in the second proviso to clause (1) of Articles 31A in so far ' as the land held by him is concerned.
It may be that by reason of the creation of an artificial concept of a family unit and the clubbing together of the land held by each member of the family unit, one or more of the members of the family unit may lose the land held by them, but that cannot be helped because, having regard to the social and economic realities of our rural life and with a view to nullifying transfers affected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area.
It is possible that by reason of this provision some genuine holders of land may suffer, some women and minors may lose the land legitimately belonging to them, but that is inevitable when major schemes of agrarian reform are adopted for wiping out socio economic injustice.
It must be remembered that the legislature can only deal with the generality of cases and it cannot possibly make provision for every kind of exceptional situation.
Otherwise the law would be as loaded with qualifications and exceptions that it will cases to be intelligible and become of fertile source of mischief.
Moreover, it is entirely for the legis lature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court cannot assume the role of an economic adviser or censor competent to pronounce upon the wisdom of such policy.
That would be a matter outside the orbit of judicial review, being a blend of policy, politics and economics ordinarily beyond the expertise and proper function of the Court.
We must accord ingly hold that the Act does not conflict with the second proviso to clause (1) of Article 31A and cannot be held to be bad on that account.
The result is that the appeals fail and are dismissed with costs.
There is to be only one set of costs.
There is also a batch of special leave petitions before us and since they raise only one question, namely that relating to the constitutional validity of the Act, they too must be reject ed.
C.A. 1307 of 1976.
BHAGWATI, J.
This appeal by the State of Uttar Pradesh is directed against a judgment delivered bY a Division Bench of the High Court of Allahabad answering four questions referred to it for its opinion by a Single Judge of that High Court in Civil Miscellaneous Writ Petition No. 9257 of 1975.
These four questions arise out of challenge to the constitutional validity of certain provisions of U.P. Act No. 1 of 1971 as amended by U.P. Act No. 18 of 1973 and U.P. Act No. 2 of 1975 (hereinafter referred to.
as the amended U.P. Imposition of Ceiling on Land Holdings Act) and they are in the following terms: "1.
Whether the acquisition of land under personal cultivation as surplus after ignoring sale deed under section 5(6) of the U.P. Imposition of Ceiling on Land Holdings Act is violative of second Proviso to Article 31 A( 1 ) of the Constitution ? 811 2.
Whether ignoring transfer made after 24th January, 1971, other than those excepted: under Proviso to section 5(6) of the both in relation to the determination of ceiling and surplus area, would amount to acquiring any portion of land under personal cultivation within the ceiling limit applicable to a person under the ceiling law for the time being in force ? 3.
Whether, in spite of the protection afforded by Article 31 B of the Constitution by virtue of inclusion of U.P. Act 1 of 1971 and the two amending Acts, namely, U.P. Act No. 18 of 1973 and U.P. Act No. 2 of 1975, in the IX SCHEDULE to the Constitution, compli ance would still be necessary of the provi sions of second proviso to Article 31 A(1) of the Constitution ? 4.
Whether, in spite of protection having been given under Article 31 C of the Consti tution to U.P. Act No. 18 of 1973 and U.P. No. 2 of 1975 by virtue of a declaration made in section 2 of each of these Acts that these Acts are for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution, is it still necessary to comply with the provisions of the second proviso to Article 31 A( 1 ) of the Constitu tion ? The first two questions were answered by the High Court against the State by holding that section 5, sub section (6.) of the amended U.P. Imposition of Ceiling of Land Holdings Act is violative of the second proviso to clause (1 ) of Article 31A of the Constitution, inasmuch as it provides for ignoring all transfers of land made after 24th January, 1971 save those excepted under the proviso to that sub section and thereby authorises acquisition of land held by a person under personal cultivation within the ceiling limit applicable to him.
The High Court also an swered the third .question against the State on the view that article 31 B does not dispense with the requirement that an acquisition made by the State even if it be under an enactment specified in the Ninth Schedule, should conform with the second proviso to clause (1) of Article 31A and if the acquisition is violative of that proviso, it would be void, notwithstanding that the enactment under which it is made is included in the Ninth Schedule.
The fourth question was also answered in the same way by holding that the protection given under Article 31C of the Constitution does not extend to violation of the second proviso to clause (1) of Article 31A.
The answer given by the High Court to the fourth question is not challenged in the present appeal but the correctness of the answers given to the first three questions is seriously assailed before us by the State.
We will first deal with the third question since it is obvious that if the answer to that question is in favour of the State and it is 4 206SCI/77 812 held that Act.
31 B protects an enactment included in the Ninth Schedule even from attack on the ground of violation of the second proviso to clause (1) of article 31A, it would become unnecessary to consider the first two questions which raise the issue whether section 5, subsection (6) of the amended U.P. Imposition of Ceiling on Land Holdings Act is violative of that proviso, for even if it is, it would be protected by article 31 B in view of the fact that U.P. Act No. 1 of 1971 as also.
the two subsequent amending Acts, namely, U.P. Act No. 18 of 1973 and U.P. Act No. 2 of 1975, are '.included in the Ninth Schedule to the Constitution.
Now, so far as the third question is concerned, we have already held, in a judgment delivered today in Civil Appeals 1132 1164 of 1976 arising under the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961, that article 31 B affords complete immunity to an enactment included in the Ninth Schedule against violation of the second proviso to clause (1) of article 31A and such an enactment is protected from invalidation on that ground.
Having regard to this decision, the answer to the third question must be given in favour of the State and it must be held that section 5, sub section (6) of the amended U.P. Imposition of Ceiling on Land Holdings Act, even if it contravenes the second proviso to clause (1) of Article 31A a matter on which we do not wish to express any opinion since it is unnecessary to do so in validated.
under Article 31 B. We accordingly allow the appeal, set aside the order of the High Court in so far as it answers the first three questions against the State and hold that section 5, sub section (6) of the U.P. Imposition of Ceiling on Land Hold ings Act iS valid and its constitutionality cannot be assailed by reason of the immunity enacted in Article 31 B. The respondent will pay the costs of the appeal to the State.
1040 of 1975 etc.
BHAGWATI,.
These appeals by the State of Punjab are directed against a judgment of the High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972 unconstitutional on the ground that they violate the second proviso to clause (1 ) of Article 31A of the Constitution.
The constitutional validi ty of the whole Act was challenged in the writ petitions giving rise to these two appeals, but the High Court nega tived the challenge and upheld the constitutional validity of the Act save in regard to those provisions which create an artificial concept of a family and provide for clubbing together of land held by each member of the family for the purpose of applying the limitation of permissible area.
We will briefly refer to these provisions which have been struck down by the High Court as constitutionally in valid.
Section 3 is the definition section and clause (10) of that section define 'person ' to include inter alia a family.
The expression 'family ' is defined in clause (4) of section 3 by saying that 'family ' in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her minor children, other than a married minor daughter.
It is obviously an artifi cial definition of family because family, as known in ordi nary parlance, would include not only minor children but also major sons and unmarried daughters, whereas 813 'Family ' as defined here excludes major sons and unmarried daughters.
Section 4, sub section (1) provides that subject to the provisions of section 5, no person shall own or hold land as landowner or tenant or partly as land owner and partly as tenant in excess of the permissible area and sub section (2) of that section lays down what shall be the permissible area in respect of different classes of land.
There is proviso.
(ii) to sub section (2) of section 4 which says that where the number of members of a family exceeds five, the permissible area shah be increased by one fifth of the permissible area for each member in excess of five, subject to the condition that additional land shall be allowed for not more than three such members.
Sub sec tion 4 of Sec. 4 has two clauses which reads as fol lows: "(a) Where a person is a member of a registered cooperative farming society, his share in the land held by such society togeth er with his other land, if any, or if such person is a member of a family, together with the land held by every member of the family shall be taken into account for determining the permissible area; (b) where a person is a member of a fami ly, the land held by such person together with the land held by every other member of the family, whether individually or jointly, shall be taken into account for determining the permissible area.
" It will thus be seen that under the provisions of the Act the land held by each member of a family as defined in section 3, clause (4), whether individually or jointly, is required to be pooled together and taken into account for determining the applicability of the permissible area.
The argument of the respondents, which found favour with the High 'Court, was that these provisions are violative of the second proviso to clause (1) of Article 31A inasmuch as they permit acquisition of land held by a member of a family under his personal cultivation, though it might be within the permissible area for an individual, without payment of full market value as compensation and.
hence they are constitutionally invalid.
This view taken by the High Court is assailed.
in the present appeals before this Court.
Now, it may be pointed out straightaway that when the High Court delivered its judgment on 14th February, 1974 the Punjab Land Reforms Act, 1972 was not included in the Ninth Schedule and hence it was not possible for the State to invoke the protection of Article 31 B.
But subsequently the Act has been included in the Ninth Schedule as Entry 78 by the Constitution (Thirty fourth Amendment) Act, 1974 and hence it is now entitled to the immunity conferred by Article 31 B. We had occasion to consider a similar ques tion arising under the Maharashtra Agricultural Lands ' (Ceiling of Holdings) Act, 1961 where also an artificial concept of a family unit is created and lands held by each member of the family unit are aggregated together for the purpose of applying the limitation of 814 ceiling area.
The relevant provisions of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 are in fact almost identical with the impugned provisions of the Punjab Land Reforms Act, 1972 While dealing with the constitutional validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 in Civil Appeals Nos. 1132 1164 of 1976, we have pointed out in a judgment delivered today that these provisions introducing the con cept of a family unit and clubbing together lands held by each member of the family unit and applying the limitation of ceiling area in reference to the aggregation of such lands are not violative of the second proviso to clause (1) of Article 31A and even if they were, they are protected by Article 31 B.
The reasoning which has prevailed with us for sustaining the validity of the provisions of the Maharash tra Agricultural Lands (Ceiling of Holdings) Act, 1961 must apply equally in the present cases arising under the Punjab Land Reforms Act, 1972 and we must hold that the impugned provisions of the Punjab Land Reforms Act, 1972 are not in conflict with the second proviso to clause (1) of Article 31A and in any event, they are protected from inval idation under Article 31 B. We may point out that the same view has been taken by this Court in regard to the constitutional validity of the relevant provisions of the Gujarat Agricultural Land Ceil ing Act (27 of 1961) in Hansmukhlal vs State of Gujarat.(1) The relevant provisions of the Punjab Land Reforms Act, 1972 are almost the same as those of the Gujarat Agricultural Land Ceiling Act (27 of 1961) which were upheld as constitu tionally valid in Hansmukhlal 's case (supra).
We accordingly negative the challenge to the constitu tional validity of the Punjab Land Reforms Act, 1972 and hold that it does not suffer from any of the constitutional infirmities alleged in the writ petitions.
The appeals are accordingly allowed with costs in favour of the appel lant.
There will be only one set of costs.
KRISHNA IYER, J. Legal challenges to the constitution ality of agrarian transformation through legislation die hard in our divided society, as is evidenced by this ava lanche of appeals, by special leave, from the High Courts of Maharashtra, Punjab and Allahabad.
The naive expectation that new incarnations in court of dead confrontations be tween land legislation and the Constitution may be finally laid to rest by a larger than legal discussion has pressured me into writing a separate opinion where concurrence with my learned brethren should have spared this seemingly otiose exercise.
Although the majuscule argumentation, which has marked the formidable forensics of this litigation at the High Court level, has ranged over large issues, Shri Tarkunde, who led the main arguments for one side, has discriminating ly dwindled down his submissions before us to two minuscule issues which, nevertheless, arm of lethal moment, if accept ed.
The recurrence of attacks on the vires of land reform laws, even.after being impregnably barricaded by the Ninth (1) ; 815 Schedule, constrains me to set out at some length the broad perspective which courts must possess in such confrontation situations.
Our Constitution is tryst with destiny, pream bled with Inscent solemnity in the words 'Justice social, economic and political '.
The three great branches of Gov ernment, as creatures of the Constitution, must remember this promise in their functional role and forget it at their peril, for to do so will be a betrayal of those high values and goals which this nation set for itself in its objectives Resolution and whose elaborate summation is in Part IV of the paramount parchment.
The history of our country 's struggle for independence was the story of a battle between the forces of socio economic exploitation and the masses of deprived people of varying degrees and the Constitution sets the new sights of the nation.
To miss the burning economics and imperative politics of the Fundamental Law and to focus fatuously on legal logomachy and pettifogging casuistry is to play truant with its messiahnism and to defeat the sweep of its humanism.
Once we grasp the dharma of the Constitution, the new orientation for the karma of adjudica tion becomes clear.
Our rounding fathers, aware of our social realities and the inner workings of history and human relations, forged our fighting faith, integrating justice in its social, economic and political aspects.
While contem plating the meaning of the Articles of the Organic law, the Supreme Court shall not disown Social Justice.
We must realise the vital role in Indian economic inde pendence that the land question plays before approaching the constitutional issues urged before us.
The caste system and religious bigotry seek sanctuary in the land system.
Social status syndrome, resisting the egalitarian recipe of the Constitution, is the result of the hierarchi cal agrarian organisation.
The harijan serfdom or dalit proletarianism can never be dissolved without a radical redistribution of land ownership.
Development strategies, income diffusion programmes and employment opportunities, why, even the full realisation of the social and economic potential of the 'green revolution ' demand agrarian reform.
Michael Cepede, Professor and Independent Chairman of the FAO Council, after studying the link between the green revolution and land reforms has concluded: " . land reform, far from being incompatible with the Green Revolution, is essential to its successful continuation.
In any case, unless the new techniques are quickly made available to peasant farmers, the social situation will before.
long become explosive.
If land workers are thwarted in their expectation of jobs under the Green Revolution, they will have no alternative but to migrate to a hopeless existence in the suburban shanty towns.
As an Indian friend once said to me, unless the peasant is allowed to participate fairly soon in the Green Revolution, it will quickly change colour.
If it is to remain green, 816 workers on the land must no longer be exploit ed as they are now; there must be a structural reform, which means first and foremost land reform." (The Green Revolution and Employment by Michael CEPEDE International Labour Review, Vol.
105, 1972 P. 1) The intimate bond between poverty and hierarchy in agrarian societies, the impact of the social framework of agriculture on the castesystem, the inhibition of feudal tenures on the productive energies of the peasantry, are subjects which have been studied by cultural anthropologists, sociologists and economists and, in consequence, the Constitution has included agrarian reform as a crucial component of the New Order.
In a recent publication by the Institute of Economic Growth, the inter connection between land reform, class structure and the powerelite has been high lighted: "The significance of land reform is obvious if one keeps in view the predominantly agrarian character of most Asian Countries.
The majority of populations in the Asian region live in villages where land constitutes not only the main source of livelihood but also the basis of social stratification power 'structure, family organisation and belief systems.
Land reform which is intended to promote changes in inland relations is bound to exercise a far reaching influence not only on the pattern of agricultural trans formation but of rural transformation as a whole.
It should be borne in mind that changes in land relations are not only propellers of socio economic change, they are also recipro cally influenced by changes in the economic, technological, social, political and ideologi cal spheres.
Analysis of the impact of land reforms, therefore, has to be attempted with an awareness of development in the total social situation.
Further, countries in Asia exihibit many points of similarity as well as of divergence in respect of land reform pro grammes and their impact on socio economic changes." (Studies in Asian Social Development McGraw Hill Publishing Co., Ltd., p. 5).
Small wonder that the framers of the Constitution were stirred by the proposition that freedom in village India become 's 'free ' only when the agrarian community comes into its own and this necessitates radically re drawing the rural real estate map.
A sensitied awareness of this background is essential while assessing the legal merit of the submis sions made by Shri Tarkunde which has fatal potential vis a vis the three impugned legislations in question.
We are directly concerned, in considering the crowd of appeals from the three High Courts, with articles 31A(1)* and 31 B which * In its present shape, it was recast by the Constitution (Fourth) Amendment Act.
817 came into the Constitution shortly after and as the very First Amendment to the Constitution.
The relevance of land reforms and their forensic inviolability was then stressed in Parliament by the Prime Minister who moved the Bill in this behalf.
He explained the quintessential aspect of the problem.
I quote it here because the voice of Parliament belights, when played back, the words of the Articles to better appreciate their import and amplitude: "Shri Jawaharlal Nehru :.
When I think of this Article.
(article 31) the whole gamut of pictures comes up before my mind, because this article deals with the abolition of the za mindari system, with land laws and agrarian reform . .
Now, . a survey of the world today, a survey of Asia today will lead any intelligent person to see that the basic and the primary problem is the land .problem today in Asia, as in India.
And every day of delay adds to the difficulties and dangers apart from being an injustice in itself .
I am not going into the justice or injustice of but am looking at it purely from the point of view of stability.
Of course, it you go into the justice or injustice, you have to take a longer view, not the justice of today, but the justice of yesterday also.
We do not, want anyone to suffer.
But, inevitably in big social changes some people have to suffer.
We have to think in term 's of large schemes of social engineering, not petty reforms but of big schemes.
like that . .
Even in the last three years or so some very important measures passed by State Assemblies and the rest have been held up.
No doubt, as I said, the interpretation of the Court must be accepted as right but you, I and the country has to wait with social and economic condi tions sOcial and economic upheavals and we are responsible for them.
How are we to meet them ? How are we to meet this challenge of the times ? Therefore, we have to think in terms of these big changes, land changes and the like and therefore we thought it best to propose additional articles 31A and 3lB and ' in addition to that there is a Schedule at tached of a number of Acts passed by State Legislatures, same of which have been chal lenged or might be challenged and we thought it best to save them from long delays and these difficulties, so that this process of change which has been initiated by the States should go ahead." (Constitution First Amendment Bill Debates, d/16 5 51).
We now know the high seriousness and wide sweep of the constitutional provisions falling for construction.
The purpose of article 3lB is conferment of total immunity from challenge on the score of violation of Part III.
The words used are as comprehensive as English 818 language permits.
And there is no justification.
to narrow down the pervasive operation of the protection, once we agree that the legislation relates to agrarian reforms.
I have, right at the outset, hammered home the strategic significance of land reforms in the planned development .of our resources, the restoration of the dignity and equality of the individual and the consolidation of our economic freedom.
No land reforms, no social justice.
And so, the framers of the Constitution, finding the fearful prospect of agrarian re structuring being threatened by fundamental rights ' archery, decided to armour such reform programmes with the sheath of invulnerability viz., the Ninth Schedule plus article 3lB. Once included in this Schedule, no land reform law shah be arrowed down by use of Part III.
A complete protection was the object of the 1st Amendment, and to blunt the edge of this purpose by interpretative tinker ing with legalistic skills is to cave in or assist unwit tingly the slowing down of the process which is the key to social transformation.
The listening posts of the constitu tional court are located, not in little grammar nor in lexicography nor even in pedantic reading of Provisos and Explanations based on vintage rules but in the profound forces which have led to the provision and in the compre hensive concern expressed in the wide language used.
While any argument in Court has .to be decided on a study of the meaning of the words of the statute vis a vis the constitu tional provisions, the very great stakes of the country in agrarian legislation, which we have been at pains to emphasize, enjoin upon the Judges the need to bestow the closest circumspection in evaluating invalidatory conten tions.
Every presumption in favour of validity, seman tics permitting, every interpretation upholding vires, possibility existing, must meet with the approval of the Court.
Of course, if any of the provisions of the Act, tested by the relevant constitutional clause, admits of no reconciliation, the Act must fail though, since the Court has its functional limitation in rescuing a legislature out of its linguistic folly.
I may here briefly set out the circumstances which account for these appeals.
Maybe, I may also state pithily the nature of the attempted constitutional invasion on the legislative provisions.
The appellants have arrived in three batches.
The first set of appeals is by landlords from Maharashtra whose challenge of the Maharashtra Agricul tural Lands (Ceiling on Holdings) Act, 1961 (Act No. 27 of 1961 ) as amended, (especially sections 4 and 5) proved ineffec tual in the High Court and they seek better fortune by urging some of the same arguments more sharply in this Court.
The next bunch of appeals is by the State of Punjab which complains about the High Court 's conclusion of unconstitutionality of section 5(1) of the Punjab Land Reforms Act, 1972.
The third group is by the State of U.P. some of the provision 's of whose land.
reform law have been declared ultra vires by the High Court, and the aggrieved State contests that ratiocination as horrendously wrong.
For easy reference hereafter, I will abbreviate the three statutes as the Maharashtra Act, the Punjab Act and the U.P. Act.
The provisions under attack are substantially 819 similar in nature, and the arguments before us likewise have been more or less identical.
One common feature of all the three enactments is that they are all included in the Ninth Schedule to the Constitution, although it must be stated that the Punjab Act, at the time the High Court decided the case, had not been so included.
Since the three Acts enjoy the immunity ensured by article 31 B, the examina tion by this Court of the questions mooted has to be on that footing.
That Chinese Wall of protection still leaves vulnerable chinks, according to Shri Tarkunde, and his major offensive is based on the second proviso to article 31 A(1).
He derives from the proviso thereto a legislative incompe tency if some mandated conditions implied therein are not fulfilled and the failure to comply with this requirement by all three Acts spells their invalidity.
The broad spectrum attack in the High Courts, based on many grounds, having been given up, we may focus first on the relevant portions of articles 31 A and 31 B and the Ninth schedule, before coming to the specific sections of the Acts which allegedly violate, with fatal impact, the constitu tional prescriptions or prohibitions.
Shri Tarkunde himself followed this line in his argument.
Speaking generally, the gravamen of the charge, in all the three instances, is in creating an ersatz 'person ' or artificial family for the purposes of the Acts, contrary to the implicit requirement of the 2nd proviso to article 31A(1), and in presenting a curious ceiling limit for such a 'fami ly ' regarding lands in personal cultivation.
We will con sider this principal argument closely.
Article 31 B reads thus: "31 B. Validation of certain Acts and Regula tions Without prejudice tO the generality of the provisions contained in Article 31 'A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the con trary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
" Its obvious object is to save land reform laws from being shot down by the constitutional missiles of Part III.
Conceding this, counsel argues that what is repulsed is attack based on rights under Part III but other infirmities are not cured by article 3lB.
One such infirmity, legislative incompetency, is the foundation of hiss argument.
Before critically appraising a contention, one must sympathise with the submission.
So we may read article 31A(1) to the extent relevant: 820 "31A. Saving of laws providing for acquisition of estates, etc : (1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extin guishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corpo rations either in the public interest or in order to secure the proper management of any of the corporation, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting fights of shareholders thereof, or (e) the extinguishment or modifications of any rights accruing by virtue of any agree ment, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or taken away or abridges any of the rights conferred by Arti cle 14, Article 19 or Article 31; Provided that where 'such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent: Provided further that where any law ,makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
" All the Acts relate to the acquisition by the State of estates, in the sense that surplus lands above the ceiling limit are taken away 821 by the State.
While this is permissible, notwithstanding any violation of articles 14, 19 and 31, the second proviso to article 31A(1) by a negative prescription, imposes legislative incompetence in certain circumstances.
Shri Tarkunde reads the proviso in a manner not so easy to follow.
Even so, to understand the argument one has to follow counsel 's chain of reasoning.
Firstly, he persuades us that where any land is held by a person in hi 's actual cultivation, the State cannot acquire any portion of such land as.
is within the ceiling limit applicable to him under any law unless the law relating to the acquisition of such land provides for pay ment of compensation at a rate not less than the ,market value thereof.
He is right.
In none of these Acts is compensation on that scale payable.
The next question is whether the acquisition of land is below the ceiling limit.
To make good this part of his argument, he calls in aid article 367.
That Article im ports the application of the , for the interpretation of the words used in the Constitu tion and so the expression 'person ' used in article 31A (Second Proviso) must bear the meaning assigned to it by section 2(12) of the .
Counsel states that the Acts in question define 'family ' and 'family unit ' in a bizarre manner, by providing for ceiling limit for 'family unit ' incongruously with the natural concept of family but fabricated in the foundry of the statutes, the laws have violated the ceiling for the individuals comprising the family.
By reading sections 4(1) and 5 of the Maharashtra Act and section 4(1) and section 5 read with r. 5(4) of the Punjab Act, counsel tried to make good his contention that there was a flagrant departure from the concept of 'person ' as defined in section 2(12) of the .
By doing this, the legislature treated one person 's separate land as land of the family unit and deprived the wife and minor child of the right to hold lands within the ceiling limit.
By this recondite reasoning, Shri Tarkunde urged that the legislature had transgressed the limits of their competency which rendered the legislations void, not because any funda mental right in had been flouted but because the limitation on legislative competency written into the second proviso to article 31 A had been breached.
Counsel fought shy of reading into the 2nd proviso to article 31A(1) a fundamental right conferred on persons holding lands below the ceiling limit in personal cultivation.
This legalist dexterity became necessary because article 3lB, on its plain and plenary terms, was a sovereign remedy against all abridgement of or inconsistencies with fundamen tal rights under The sweep of this provision, the paramount purpose it was designed to serve and the.
ampli tude of its language versus the narrowness of the construc tion put, the desperate interpretative crevices created, frustrative of its main object, and the reliance on the structure of article 13 to understand the anatomy of article 31B this was the gut issue on which most of the debate centred.
Equally importantly, whether the prescription in the said 2nd proviso was a guaranteed fundamental right expressed in emphatic negative and as an exception to an exception or was it solely a limitation on legislative power without creating a corresponding right in any person this too occupied the centre of the stage.
822 The Punjab and Haryana High Court, in the judgment under appeal, has ventured the view that the provision relating to 'family ' and fixation of land ceiling for such units is not agrarian reform.
This extreme dictum discloses the easy possibility of judicial solecism when courts wear legal blinkers while adjudging questions of agronomics, national reconstruction arid sociological programmes in the setting of developing countries.
Professional innocence of current economics, anthropology and sociology, in essen tials, while rendering constitutional verdicts on develop mental law 's, is forensic guilt.
In State of Kerala & Anr.
vs Silk Manufacturing (Wvg.
) Co. Ltd. etc.(1) the considerable amplitude of agrarian reform in developing countries has been explained.
If India lives in her villages, if a huge majority of its people live or starve on agriculture and under agrestic sub culture, every thing that promotes rural regeneration and the welfare of the agricultural community is agrarian reform.
This being the conceptual sweep of the expression, all reasonable strategies for the limitation of holdings and maximization of surplus lands for distribution to the land less and designing a hopeful rural future obviously fall within the expanding projects of agrarian reform.
To argue more is to labour the obvious and to interpret liberally is an obligation to the Constitution.
Assuming that the legislations in question are measures of agrarian reform and they are We have to dissect and discover the nature of the objection based on the 2nd provi so to article 31 (1) and decide whether the protective wings of article 3lB are wide enough to take in these legislations and repel the imputed infirmity.
article 3lB categorically states that ' none of the Acts specified in the Ninth Schedule nor any of the provisions thereof, shall be deemed to be void on any conceivable ground rooted in Part III.
Even if such Act or provision is inconsistent with any provision of Part 111 it shall not be invalidated.
Even if such Act or provision takes away or abridges any of the rights conferred by any provisions of Part III it shah continue in force.
In short, no matter what the grounds are, if they are traceable to Part Iii in whatever form, they fail in the presence of article 3lB.
No master of English legal diction could have used, so tersely, such protean words which in their potent totality bang, bar and bolt the door against every possible invalidatory sally based on Part III.
And Article 31A(1) being in Part III, Shri Tarkunde 's '2nd proviso ' bullet cannot hit the target.
Nor are we impressed with the cute argument that the phrase ology of article 3lB must be correlated to article 13 and read with a truncated connotation.
Legal legerdemain is of no avail where larger constitutional interests are at stake.
Shri Tarkunde concedes that if we read the 2nd proviso to article 31A(1) as conferring a fundamental right on every person in personal cultivation of land below the ceiling limit.
article 3lB is an effective answer to his contention.
And so he has striven to make the point that what the said proviso does is not to confer a right but to clamp down a limitation on legislative competence.
The proviso, (1) [1974] 1 S.C.R.67|.
823 according to counsel, imposes an embargo.
on the legislature against enacting for acquisition of lands below the ceiling limit without providing for payment of compensation at a rate which shall not be less than the market value thereof.
The fallacy of this submission lies in its being a half truth confounded for the whole truth.
Every fundamental right, from the view point of the individual, gives a right and from the Standpoint of the State, is a restraint.
Whether the manner of expression used is in positive terms or negatively, whether the statutory technique of a proviso, saving clause, exception or explanation, is used or a direct interdict is imposed, the substantive content is what matters.
So studied, many of the Articles in Part III, worded in a variety of ways, arm the affected individual with a right and, pro tanto, prohibit the legislature and the executive from enacting or acting contra.
Every right of A is a limitation on B, in a universe of law and order.
The learned Attorney General expanded on the functional plurality of a proviso and on what is a fundamental right from the individual 's angle being a limitation on power from the legislative angle.
Cases were cited, passages were blue pencilled and text books were relied on.
Even self evident propositions wear perplexingly erudite looks when learned precedents and excerpts from classics play 'upon them.
It is Simple enough to say that there may be singular situations where legislative incompetence may exist without a corresponding individual right but in the generality of cases it is otherwise.
Jurisprudential possibilities apart, in the concrete case before us there is a clearly enunciated fundamental right, garbed as an exception to an exception or as a proviso carved cut of a general saving provision.
It needs no subtlety to see that under the rubric 'Right to Property ' a skein of rights and limitations on rights has been wound in articles 31 to 31C.
Together they are the meas ure of the fundamental right to property in its macro form and micro notes.
So understood, the scheme is plain.
A large right to property protected by law against depriva tion, compulsory acquisition only on constitutional condi tions, saving of agrarian and some other laws from these constitutional constraints, followed by creation, through a proviso, of an oasis where acquisition can be made only by payment of compensation at or above market value such is the pattern woven by the complex of clauses.
A great right is created in favour of owners to get compensation at not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State.
This is a fundamental right and is a creature of the 2nd provi so to article 31A(1).
An independent provision may occasion ally incarnate as a humble proviso.
I am not, therefore, inclined to pursue Shri Tarkunde 's trail in reading the rulings which set out the proper office of a proviso, although it is absolutely plain that in the context, setting and purpose of a provision, even a proviso may function as an independent clause.
Likewise, the artificiality imputed to 'family unit ' and 'family ' in the two statutes and the anomalies and injus tices which may possibly flow from them also do not arise for consideration since we have 824 taken the scope of article 3lB to be Wider than contended for.
Moreover, in any land reform measure, where the maximum surplus pool of land for social distribution is the aim, drastic interference with the existing rights and room for real individual grievances are inevitable.
The new order claims a .high price from the old and pragmatic strategies to organise land reforms may involve definitional unortho doxy if the target group is to be reached.
Socio economic legislation is social realism in action, not bookish perfec tion, as social scientists will attest.
I hold that the Maharashtra, the Punjab and the U.P. Acts are not unconstitutional, taking the constructive view that article 31 B, vis a vis agrarian reforms, is a larger testament of vision and values in action and a bridge be tween individual right and collective good.
The Nagpur Bench has spurred with counsel 's many submis sions most of which have been wisely abandoned here and has ultimately upheld the legislation.
The Punjab High Court has ventured to hold that the law is bad for reasons repeat ed before us and repelled by us unanimously.
The Allahabad judgment has shown noetic naivete and novel legal logic in condemning the provisions to death on grounds which the counsel cared to espouse before us.
The reason for this lies in the womb of obvious surmise.
While interpretative opportunities are still open for courts in the application of land legislation.
the requiem of the unconstitutionality of agrarian reform laws has, by now, been sung.
Nevertheless, the crowing event of egalitarian legisla tion is not so much constitutional success as effective emacation.
The distance between the statute book and the landless tiller is tantalisingly long and for this implemen tation hiatus the executive, not the judicative, wing will hold itself socially accountable hereafter.
May be it will be spurred with responsible spread trasucending reform rhetoric.
I agree that the Maharashtra appeals be dismissed, and the other two batches be allowed.
S.R. Maharashtra appeals dismissed, U.P. & Punjab appeals allowed.
| IN-Abs | Punjab Land Reforms Act, 1972 included in the protec tive umbrella of the Ninth Schedule, subsequent to the decision of the High Court declaring certain provisions thereof as unconstitutional article 3lB being retrospective is entitled to the immunity conferred by it.
U.P. Imposition of Ceiling on Land Holdings Act (Act No. 1) 1971 as amended by Act No. 18 of 1973 and Act No. 2 of 1975, all included in the, Ninth Schedule The question, whether section 5(6) is violative of second proviso to clause (1) of article 31A of the Constitution cannot be assailed by reason immunity enacted in article 31B. The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 which was enacted in implementation of the Direc tive Principles of State Policy contained in clauses (b) and (c) of article 39 of the Constitution imposed a maximum ceiling on the holding of agricultural land in the State of Maha rashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons with a view to securing the distribution of agricultural land in a manner which would best observe the common good of the people.
Maharashtra Amendment Act 21 of 1975 effected radical amend ments in the principal Act by lowering the ceiling on agri cultural holding and created a concept of artificial family unit for fixing ceiling on holdings of agricultural land.
The person as defined in s.2(22) r/w. s.2(11) and his spouse and their minor daughters were clubbed together for the purpose of constituting a family unit as defined in the Explanation to s.4 sub section (1) and all lands held by each member of the family unit whether jointly or separately were aggregated together, and by a fiction of law deemed to be held by the family unit.
The appellant landlords in the State of Maharashtra preferred writ petitions in the High Court of Bombay chal lenging the constitutional validity of the Principal .Act, as amended on various grounds since the effect of the provi sions of the principal Act as amended by the three Maharash tra Acts, viz. 21 of 1975, 47 of 1975 and 2 of 1976 was to expropriate a part of the lands belonging to concept of family unit and fixed a ceiling 'on holding of land by such family unit, it was violative of the second proviso to clause (1) article 31A and was not saved by the immunising provision enacted in article 3lB.
The High Court dismissed them.
The main contention was that in so far as the Act created an artificial 791 the petition holding that article 3lB afforded complete immunity to the provisions of the principal Act.
In appeal by special leave to this Court, the appellant contended: (1) On a true construction of article 31B a post constitution enactment such as the Act is protected from invalidation only when it merely transgresses a restriction on legislative competence imposed by any provision of that Part and is therefore inconsistent with such provision.
The larger ground of validation curing generally any incon sistency with any provision of Part III is available only in case of pre constitution legislation.
(ii) The second proviso to clause (1) of article 37A does not confer any Funda mental Right but merely imposes a limitation,on the legisla tive competence of the legislature and, therefore, article 3lB does not exonerate the Act from its obligation to conform with the requirements of the second proviso to clause (1) of article 31.
(iii) To interpret the second proviso as conferring a Fundamental Right would convert the second proviso into a substantive provision and that would be contrary to the well recognised canon of construction that a proviso must be read so as to carve out from the main provision something which would otherwise fall with it and (iv) The Explanation to s.3 of the Constitution (Seven teenth Amendment) Act, 1964 shows that an acquisition made in contravention of the second proviso to clause (i) of Act.
31A is void and does not have the protection of article 3lB. even if the law under which such acquisition is made is included in the Ninth Schedule.
Dismissing the appeals, the Court, Held: Per Bhagwati J. (for himself and on behalf of Ray, C.J., Beg and Shinghal, JJ.) (1) The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 as amended by Maharashtra Acts 21 of 1975, Maha rashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 in so far as it creates an artificial concept of family unit and fixes a ceiling on holding of land by such family unit, does not conflict with the second proviso to clause (1) of article 31A. [810 E] (2) It would not be possible to say in the ease of an individual member of the family unit that when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit, the acquisition is of any land "within the ceiling limit applicable to him" and hence in such a ease there would be no question of any violation of the provision enacted in the second proviso to clause (1) of article 31A in so far as the land held by him is concerned.
It may be that by reason of the creation of an artificial concept of a family unit, one or more members of the family unit may lose the land held by them, but that cannot be helped, because having regard to the social and economic realities of our rural life and with a view to nullifying transfers effected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area.
[809 H, 810 A B] (3) Even if the Act, in so far as it introduces an arti ficial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (1) of article 31A it is protected by article 31B, by reason of its inclusion in the Ninth Schedule.
[808 F G] Hasmukhlal Dayabhai vs State of Gujarat ; followed.
(4) It is an elementary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation.
Our Constitution has a social purpose and an economic mission and every Article of the Constitution must, therefore.
be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomplish.
[803 F G] (5) The aim and objective of article 3lB is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part III and it must therefore be so inter preted as to have the necessary sweep and coverage.
An expansive interpretation must be placed on the language of article 31B so to carry out the object and purpose of enacting that Article.
[803 F H] 792 (6) Article 3lB is sufficiently wide to protect legisla tion not only where it takes away or abridges any of the rights conferred by any provisions of Part but also where it is inconsistent with any such provisions.
[803 H, 804 A] (7) The words "such Act, Regulation or provision is incon sistent with or takes away or abridges any of the rights conferred by any provision of this Part" in article 31B are clearly an echo of the language of clauses (1) and (2) of article 13 and they have obviously been employed because the enactments Specified in the Ninth Schedule may be pre con stitution as well as post constitution laws.
But, it would not be right to introduce an artificial dichotomy in article 3lB by correlating the first part of the expression namely, "is inconsistent with . any provisions of this Part" and confining its applicability to pre constitution legislation and correlating and confining the applicability of the other Part of the expression namely "takes away or abridges any of the rights conferred by; any provisions of this Part" to post constitution legislation.
Both the parts of the expression, on a plain natural construction of the language of article 3lB apply equally to post constitution legislation as well as pre constitution legislation.
[803 D F] (8) The Second Proviso to clause (1) of article 31A does confer a Fundamental Right.
The second proviso to article 31A confers a right higher than the one under clause (2) of article 31 on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applica ble to him and if the Act by creating an artificial concept of a family unit and fixing ceiling on holding of agricul tural lands by such family unit enables land within the ceiling limit to be acquired without payment of full market value, it would be taking away or abridging the right conferred by the second proviso, but it would be protected by article 31 B. [804.
B, 806 E] (9) The second proviso to clause (1) of article 31A is also couched in the negative language like clauses (1) and (2) of article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment, of compensation at a rate not less than the market value.
This limitation on the legislative power of the State is the measure of the fundamental right conferred on the owner of the land.
It is by imposing limi tation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit.
[805 D E] State of Bihar vs Kameshwar Singh .@ 986; R.C. Cooper vs Union of India ; @ 569, reiter ated.
(10) Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other.
They are merely two different facets of the same provision.
What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of holder of land within the ceiling limit.
The former secures the latter.
The second proviso in effect guarantees protection to the holder against acquisition of that portion of the land which is within the ceiling limit except on payment of the market value of such land.
The second proviso clearly con fers a right to property on a person holding land under his personal cultivation.
[805F G] (11) The Explanation to section 3 of the Constitution (Seventeenth Amendment) Act 1964 does no 'more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of . article 31A, it shall, to the extent of contravention be void.
Obviously this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Act, 1955, even if in contravention of thee second proviso to clause (.1) of article 31A would have been valid under article 31B and that result the parliament did not wish to produce.
It was manifestly not the intention of Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where if conflicts with the second proviso to clause (I) of article 31A and that article 3lB should not protect it from invalida tion.
[806 G, 807 F H] 793 (12) It is true that the orthodox function of 'an expla nation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it, but ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention.
[807 D E] (13) It is true that the proper function of a proviso is to except or qualify something enacted in the substantive clause, which, but for the proviso would be within that clause.
The question is one of interpretation of the proviso and there is no rule that the proviso must always be restricted to the ambit of the main enactment.
[805 H, 806A] Ishwarlal Thakarlal Almania vs Motabhai Nagjibhai [1966] 1 SCR 367 @373, followed.
C.A. 1040/76.
(14) The inclusion of the Punjab Land Reforms Act, 1972, in the Ninth Schedule as entry 78 by the Constitution.(Thirty Fourth Amendment) Act, 1974 subsequent to the decision of the High Court entitles it to the immuni ty conferred by article 3lB.
It does not suffer from any of the constitutional infirmities alleged in the writ petition.
[814 C E] Hasmukhlal vs State of Gujarat ; , applied.
C.A. 1307/76.
(15) Section 5, sub section (6)of the U.P. Imposition.of Ceiling on Land Holdings Act is valid and its constitutional validity cannot be assailed by reason of the immunity enact ed in article 3lB. Section 5(6), even if it contravenes second proviso to clause (1) of article 31A is validated under article 3lB by virtue of inclusion under the protective umbrel la of the Ninth Schedule.[812 C E] Per Krishna Iyer, J. (concurring) (1) The Maharashtra, the Punjab and the U.P. Acts are not unconstitutional taking the constructive view that article 31 B vis a vis agrarian reforms, is a larger testament of vision and values in action and a bridge between individual right and collective good.
[824 B C] (2) The purpose of article 31 B is conferment of total immunity from challenge on the score of violation of Part HI.
The words used are as comprehensive as English lan guage permits.
No land reform law shall be narrowed down by use of Part III, once included in the Ninth Schedule.
No matter what the grounds are, if they are traceable to Part III in whatever form, they fail in the presence of article 3lB.
No master of English legal diction could have used, so tersely, such protean words which in their potent totality bang, bar and bolt the door against every possible invalida tory sally based on Part III.
It is not correct to argue that the phraseology of article 3lB must be correlated to article 13 and read with a truncated connotation.
[817 H, 822 E F, G] (3) Every Fundamental Right, from the point of view of the individual, gives a right and from the stand point of the State is a restraint.
Whether the manner of expression used is in positive terms or negatively, whether the statu tory technique of a proviso, saving clause, exception or explanation, is used of ' 1 direct interdict is imposed, the substantive content is what matters.
Many of the Articles in Part III worded in a variety of ways, arm the affected individual with a right and pro tanto prohibit the legisla ture and the executive from enacting or acting contra.
[823 A B] (4) A great right is created in favour of owners to get compensation at not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State.
This is a fundamental right and is a creature of the 2nd proviso to article 31 A(1).
An independ ent provision may occasionally incarnate as a humble provi so.
[823 F G] (5) It is absolutely plain that in the context setting and purpose of a provision even a proviso may function as an independent clause.
[823 G]
|
Appeal No. 1888/68.
Appeal by Special Leave from the Judgment and Order dated 10 1 1968 of the Madhya Pradesh High Court (Indore Bench) in Civil Revision No. 76/67.
D.V. Patel and S.K. Gambhir for the Appellant.
V.P. Raman, Addl.
, Y.S. Chitale and D.N. Mishra for the Respondent.
The judgment of the Court was delivered by KAILASAM, J.
This .appeal is by special leave against the judgment and order of the High; Court of Madhya.
Pradesh, Bench at Indore revising the order of the Additional Dis trict Judge and holding that the appellant is liable to pay tax from April .1, 1954 and not from April 1, 1965 only as held by the District Judge.
The appellant is the owner of a factory at No. 1, Shivaji Nagar, Indore.
On January 8, 1954.
the rental of the factory was assessed at Rs.564 per month and the house tax payable at Rs.475/14/ with effect from April 1, 1951.
The dispute is whether tax is payable from April 1, 1954.
By an order dated March 20, 1956 the house tax was determined at Rs. 891/1/ per annum by the Municipal Corpo ration with effect from April 1, 1954.
Against the said assessment the appellant preferred an appeal before the Municipal Appeal Committee, Indore.
Appeal Committee allowed the appeal and remanded the case for deciding it on merits after giving a hearing to the appellant.
After re mand, the Municipal Corporation again inquired into the matter and determined the rental value at Rs.940/ per month and reduced the tax to Rs.793/2/ per year by an order dated 11th February 1957, as payable from April 1, 1954.
The appellant objected to the assessment and gave notice of objection under section 147(1) of the Madhya Pradesh Munici pal .Corporation Act, 1.956, but the objection was summarily rejected by the Municipal Commissioner.
The appellant preferred an appeal being Miscellaneous Appeal No. 41 of 1957 to the 1st Additional District Judge, Indore.
By an order dated March 10, 1960, the Additional District Judge 873 allowed the appeal and remanded the case for decision afresh after proper inquiry.
On remand, a notice dated February 11, 1963, was issued to the appellant under section 144(1) of the ' Madhya Pradesh Municipal Corporation Act, ' 1956, as amended by Act 13 of 1961 calling upon him to.
furnish the required information.
The COrporation also, issued another notice to the appellant on May 7, 1964, informing the appellant that the Junior Overseer had submitted a report that considerable changes have been effected in the factory and calling upon him to.
submit a detailed plan.
The appel lant replied asking for details.
Subsequently, the appel lant received a notice dated October 12, 1965, under section 146 of the Madhya Pradesh Municipal Corporation Act whereby he was informed that the annual valuation of the property was assessed at Rs.10,870.20 and Rs.764.18 was fixed as the annual property tax with effect from April 1, 1954.
He was also informed that if he had any objection he could file his objections under section 147(1) within 30 days from the receipt of the said notice.
The 'appellant filed his objections on November 11, 1965.
The Commissioner rejected the objections by his order dated May 26, 1966, and confirmed the valuation of the property and tax imposed by it on October 12, 1965.
The appellant was informed by the Corporation by its letter dated June 1, 1966, that ' the amount of Rs.764.18 as tax has been fixed with effect from April 1, 1954, on the basis of the valuation of the annual income of Rs.10,870.20.
Aggrieved by the order of the Commissioner the appellant filed Civil Miscellaneous Appeal No. 70 of 1966 before the 2nd Additional District Judge, Indore.
The learned Judge by his order dated December 21, 1966, partly allowed the appeal and held that the appellant would be liable to pay the property tax of Rs.764.18 with effect from April 1, 1965, only, and not from April 1, 1954.
The respondent Municipality then filed a Revision Petition before the High Court and the High Court by its order dated January 10, 1968, in Civil Revision No. 76 of 1967 allowed the Revision Petition and held that levy of the house tax at Rs.764.18 would be payable from April, 1, 1954 itself.
Against the order of the High Court the appellant filed a petition under Article 136 of the Constitution and on the grant of a special leave by this Court on August 23,1968, this appeal has come up before us for final hearing.
The learned counsel for the appellant raised two conten tions.
He submitted that as a fresh notice was issued under section 144 of the amended Act on October 12, 1965 no tax could be imposed with retrospective effect and the order of the High Court directing payment of tax from April 1, 1954, is against law.
It was next contended that the decision_ of the 2nd Additional District Judge is final and the High Court had no jurisdiction to interfere with it.
In any event it had exceeded its powers under section 115 of the Civil Procedure Code.
874 From the facts set out it will be apparent that the order fixing the tax at Rs.891/1/ per annum with effect from April 1, 1954 was made on March 20, 1956.
That order was challenged before various forums.
The Municipal Appeal Committee had first allowed an appeal preferred by the appellant and remanded the case to the Municipal Corporation.
After remand the Municipal Corporation re duced the tax to Rs.793/2/ by its order dated February 11, 1957.
But again the assessment was objected to under section 147(1) of the Madhya Pradesh Municipal Corporation Act.
The Municipal Commissioner dismissed the objections and thereupon there Was an appeal to.
the Additional District Judge who allowed the appeal and remanded the matter for fresh disposal on March 10, 1960.
After remand the Corpo ration reduced the tax further and fixed it at Rs.764.18 with effect from April 1, 1954 by its order dated October 12, 1965.
The appellant filed objections and the objections were rejected by the Commissioner by its order dated May 26, 1966.
Against the order fixing the tax at Rs. 764.18 the appellant filed an appeal to the 2nd Additional District Judge, Indore, who by his order dated December 21, 1966 held that the property tax has to be paid only from April 1, 1965 and not from April 1, 1954.
That order was challenged by the Municipality before the High Court which allowed the Civil Revision and held that the house tax at Rs. 764.18 is payable from April 1, 1954.
It will be thus seen that the proceeding related to the tax payable from April 1, 1954.
The point that is taken by the learned counsel is that after the remand by the learned District Judge by his order dated March 10, 1960, the proceedings started by the Municipality by its notice, dated October 12, 1965 were under section 146 of the Madhya Pradesh Municipal Corporation Act and as the new Act was not retrospective in its effect the tax is payable only from April 1, 1965.
This plea cannot be accepted as from the narration of the facts it can be seen that it was a continuous proceeding relating to the tax payable from April 1, 1954, and there is no substance in the plea that the notice amounted to notice of fresh assessment or re assessment.
Equally untenable is his plea that the notice given by the Municipality on October 12, 1965 cannot have the effect of levying tax for any period earlier than April, 1965.
The notice issued by the Municipal Corporation bearing No. 18000 dated February 11, 1963, runs as follows : "Under section 144(1) of the Madhya Pradesh Municipal Corporation Act, you are hereby informed the necessary particulars in the proforma given below, together with the detailed plan of the building of the abovemen tioned factory may please be furnished within 7 days from the receipt of this letter; for the purpose of assessment.
As the case has been remanded by the court, it is necessary to make assessment again.
" The notice itself specifically states that the assess ment was to be made again in pursuance of the order of remand.
The notice No. 10195 dated October 12, 1965 is under section 146 of the Municipal Act and it stated that on remand of the matter from the District Court 875 regarding the assessment of the property.
No.1, Shivaji Nagar, the annual tax has been assessed at Rs. 764.18 and called upon the appellant to file any objections if he has within 30 days from the receipt of the notice under section 147(1) of the Act.
The notice itself makes it clear that the Commissioner was proceeding to fix the value in pursu ance of the remand and called upon him to file his objec tions under section 147.
The plea of the learned counsel for the appellant is that the Commissioner is not authorised to determine the value and impose a tax for any period before the date of issue of the notice.
This contention ignores the fact that the valuation and determination of the tax from the year 1954 was pending and the proceedings related to.
that period.
Section 3 of the M.P. Municipal Corporation Act, of 1956, amongst other things provides under sub section (3) that "All rates, taxes and sums of money due to the Municipalities of such city when this Act is made applicable shall be deemed to be due to the Corporation," and under subsection (4) of section 3 "All suits or other Legal proceedings, civil or criminal, insti tuted by or against the Municipality of such city may be continued by or against the Corporation.
" The proceedings were originally taken under the Madhya Bharat Municipalities Act, 1954 and the proceedings regarding the levy of the house tax were not concluded when under the new Act the Corporation became entitled to pursue the proceedings.
We do not see any basis for the contention that under the new Act the Municipality had no power to pursue the proceedings regarding the levy of the tax for an earlier period.
We therefore reject the first contention as being without any substance.
The second contention is based on section 149 of the Madhya Pradesh Municipal Corporation Act, 1956.
It pro vides that any appeal shall lie from the decision of the Municipal Commissioner to the District Court, when any dispute arises as to the liability of any land or building to assessment.
Sub section (1) of section 149 provides that the decision of the District Court shall be final.
It was submitted that the decision of the District Court was therefore final and that the High Court was in error in entertaining a Revision Petition.
This plea cannot be accepted for, under section 115 of the Civil Procedure Code the High Court has got a power to.
revise the order passed by courts subordinate to it.
It cannot be disputed that the District Court is a subordinate court and is liable to the revisional jurisdiction of the High Court.
That leaves us with the last contention of the appellant that the High Court acted beyond its power as a court of revision.
This point will have to be summarily dismissed as the question of want of jurisdiction of the High Court was not raised before the High Court and therefore cannot be allowed to be raised in this Court for the first time.
The learned counsel for the appellant pleaded that the question involves total lack of powers of the High Court and this Court should hold that the order of the High Court is without jurisdiction.
This Court has laid down the principles governing interfer ence under section 115 of the Civil Procedure Code is Bal devdas Shivlal & Anr.
vs Filmistan Distributors (India) (P) Ltd. & Ors.,, (1) M/s. D.L.F. Housing and Construction Co. (P) Ltd. vs (1) ; 8 206SCI/77 876 Sarup singh and Ors.,(1) and The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hyderabad and Anr.
vs Ajit Prasad Tarway, Manager (Purchase and Stores) Hindu stan Aeronautics Ltd. Balangar Hyderabad.(2) These cases have been referred to in the recent decision of this Court in The Municipal Corporation of Delhi vs Suresh Chandra Jaipuria and Anr. (3) and the attention of the learned Judges of the High Court was drawn to the law declared by this Court.
We consider it unnecessary to discuss the law on the subject over again as this appeal is liable to be dismissed on the ground that the point was not taken before the High Court and the discretion of this Court to interfere or not is beyond question.
In the result we find that there is no substance in this appeal and dismiss the same with costs.
P.B.R. Appeal dis missed.
(1) A.I.R. 1971 S.C. 2324.
(2) (3) A.I.R. 1976 S.C. 2621.
| IN-Abs | Under the Madhya Bharat Municipalities Act, 1954, the Municipal Corporation determined the house lax payable by the appellant in respect of his house with effect from April 1, 1954.
On appeal by the appellant regarding assessment, the Additional District Judge remanded the case to the Corporation for a fresh decision after due enquiry.
Ulti mately, by a notice dated October 12, 1965 issued under section 146 of the Madhya Pradesh Municipal Corporation Act, 1956 (as amended in 1961) the Corporation revised the amount of tax payable but maintained the date of liability for payment of tax as April 1, 1954.
On appeal by the appellant, the additional District Judge held that the tax was payable with effect from April 1, 1965 and not April 1, 1954 for the reason that the tax was finally fixed after the notice dated October 12, 1965.
The Revision Petition of the Corporation was allowed by the High Court holding that tax was payable from April 1, 1954 because the proceedings were started even before the 1956 Act came into force.
In appeal to this Court the appellant contended that (1 ) as the fresh notice was issued under section 146 of the 1956 Act on October 12, 1965 after remand of the case by the District Judge, house lax could be imposed only with effect from April 1, 1965 and not retrospectively and (2) the order of the District Judge being final under section 149(2) of the 1956 Act the High Court had no jurisdiction to interfere with that order and in any event the High Court exceeded its power under section 115, C.P.C. Dismissing the appeal.
HELD: The proceeding relating to the house tax was a continuous proceeding relating to the tax payable from April 1, 1954 and the notice issued by the Corporation after remand by the District Judge did not amount to notice of fresh assessment or re assessment.
[874 E F] 1.
There is no force in the contention .that under the 1956 Act the municipality had no power to pursue the pro ceedings regarding the levy of tax for an earlier period.
The notice issued by the Corporation to the appellant made it clear that the Commissioner was proceeding to fix the value in pursuance of the remand.
The appellant 's plea that the Commissioner was not authorised to determine the value and impose the tax for any period before the date of issue of the notice ignores the fact that the valuation and deter mination of tax from 1954 was pending and the proceedings related to that period.
Section 3(3) of the 1956 Act pro vides that all rates, taxes and sums of money due to the Municipalities when this Act was made applicable shall be deemed to be due to the Corporation and sub section
(4.) states that all suits and other legal proceedings instituted by or against a Municipality may be continued by or against the Corporation.
The proceedings in the instant case were originally taken under the Madhya Bharat Municipalities Act, 1954 and the proceedings regarding the levy of the house tax were not concluded when under the new Act the Corporation became entitled to pursue the proceedings.
[874F C, 875A D] 2.
(a) Under section 115, C.P.C. the High Court has power to revise the order passed by Courts subordinate to it.
The District Court being subordinate to 872 the High Court, is liable to the revisional jurisdiction of the High Court.
Moreover, the question of want of jurisdic tion of the High Court was not raised before that Court and cannot be allowed to be raised in this Court for the first time.
[875 F G] (b) The principles governing interference by the High Court trader section 115, C.I.C. have been laid down by this Court in a catena of decisions, the last of which is The Municipal Corporation of Delhi vs Suresh Chandra Jaipuria & Anr.
(A.I.R. [875H, 876A B] Baldevdas Shivlal & Anr.
vs Filmistan Distributors (India) (P) Ltd. & Ors. ; , M/s. D.L.F. Housing and Construction Co. (P) Ltd. vs Sarup Singh and Ors.
A.I.R. 1971 S.C. 2324, The Managing, Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Ant.
vs Ajit Prasad Tarway, Manager (Purchase and Stores) Hindu stan Aeronautics Ltd. Balanagar, Hyderabad, A.I.R. 1973 S.C. 76 and The Municipal Corporation of Delhi vs Suresh Chan dra Jaipuria and Anr.
A.I.R. 1976 S.C. 2621 referred to.
|
Appeal No. 527 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 26 3 1976 of the Allahabad High Court in Civil Misc.
Writ No. 6277 of 1974.
866 L.N. Sinha, Sol.
General, S.C. Agarwala and V.J. Francis for the Appellant.
Yogeshwar Prasad and (Miss) Rani Arora for Respondent No. 1.
O.P. Rana for Respondent No. 2.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court dated March 26, 1976.
It relates to the validity of the imposition of octroi with effect from July 15, 1950, on certain goods brought within the Maunath Bhanjan Municipality, hereinaf ter referred to as the Board.
The challenge to the imposition was made by the Swa deshi Cotton Mills Company Ltd., hereinafter referred to, as the Company.
The Company started constructing a textile factory, a part of which, at any rate, fell within the area of the Board.
It applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern.
It however started bringing more articles within its premises, and the Octroi Superin tendent made a demand for a payment octroi on June 25, 1969.
The Company tried to avoid the levy on the basis of the order of exemption, but the Executive Officer of the Board repeated the demand on May 30, 1970 and June 16, 1970.
The Board also wrote to the State Government for permission to realise octroi from the Company.
The Government gave the permission to realise the tax.
The Company thereupon challenged the levy of the octroi in the High Court by a writ petition.
The High Court took the view that the initial imposition of the octroi was illegal, allowed the writ petition, and issued a mandamus directing the Board not to realise the tax.
The Board feels aggrieved and has come up in appeal to this Court.
It appears that the Company took four grounds for challenging the levy of octroi, but the High Court examined only the following ground, as it took the view that it was enough for the Company 's success in the petition, and did not examine the other grounds, "that the procedure prescribed for the imposition of taxes by municipal boards under sections 131 to 135 of the U.P. Municipalities Act, 1916, was not fol lowed by the Municipal Board.
" Counsel for the parties have accordingly confined their arguments to the finding of the High Court in favour of the Company on this ground.
As the ground on which the Company has succeeded is quite general and vague, we asked counsel for the parties to refer to.
the precise plea in that respect, in the writ petition.
They could however only invite our attention to3 ground No. 6 of the writ petition where the Company has merely stated that the imposition of octroi was void and illegal "because mandatory provisions for imposition of octroi tax as provid ed in the U.P. Municipalities Act has not been followed.
" It is therefore obvious, and has not been disputed before us, that the 867 Company took a very vague ground to challenge the validity of the imposition of octroi, and left it to the High Court to embark on a roving and fishing inquiry, on the off chance of finding some violation of the so called "mandatory provi sions for the imposition of octroi.
" It has not been disput ed before us that the High Court undertook such an inquiry and struck down the imposition on the following ground, (1) The draft rules for the levy of the tax were not published, and only the rates of octroi were published, so that there was violation of the provisions of section 23 of the General Clauses Act and sections 134(1) and 300 of the Act.
(2) The order of the District Magistrate, which was equivalent to the special resolution of the Board under sub section (2) of section 134 was invalid as it was passed on June 20, 1950, while the rules were finalised and pub lished on July 15, 1950.
(3) There was no "foundation or basis" of the notification under section 135(2) and no such notification was published.
Counsel for the Company however strenuously argued that there was no compliance with the provisions of sections 131 to 133 also, and made a reference to the decisions in Munic ipal Board, Hapur vs Raghuvendra Kripal and others(1) and Raza Buland Sugar Co. Ltd. vs Municipal Board, Ratnpur(2), for the purpose of showing that parts of sections 131 to 134 were mandatory, and had to be followed.
We find that the High Court has.categorically stated that the Company did not assert that sub sections (2) and (3) of section 131 had not been complied with, and that there was "no dispute regarding compliance with the provisions of section 131.
" The High Court has also stated that the COmpany "has not asserted.
that any of the provisions of section 132 has not been followed.
" It has further stated that there was "no complaint of non compliance with the provisions of section 133 also.
" There was thus no challenge to the validity of the imposition of octroi on the, ground that there was no compliance with the provisions of sections 131, 132 and 133 and we are not called upon to examine the argument that there was non compliance with the provisions of those sec tions.
There was also no dispute in the High Court that "the Municipal Board was competent to impose octroi tax.
" We shall accordingly examine the three grounds, on which the High Court has held the imposition of octroi as invalid, in this background.
Ground No. 1.
The High Court has held that there was no previous publication of the draft rules for the levy of octroi and that only the rates of octroi were published.
So that there was breach of the provisions of sections 134(1)and 300 of the United (1) ; (2) ; 868 Provinces Municipalities Act, 1916, hereinafter referred to as the Act, and section 23 of the General Clauses Act.
It will be recalled that the High Court has found that the Company had not challenged the imposition of octroi on the ground that there was non compliance with the provisions of sections 131 to 133.
It cannot therefore be disputed that the draft rules were published as required by sub section(3) of section 131.
Moreover we find from the affidavit which has been filed on behalf of the Board that its Officer incharge wrote to the prescribed Authority on January 9, 1950, that the draft rules had been published in the "San sar" on November 1, 1949, and may be sanctioned.
A copy of that letter has been placed on the record.
It may also be mentioned that the Officer Incharge wrote to the Commission er intimating that only two objections had been received which were for reduction of the tax, and that after consid ering them the rate of the tax had been reduced from Rs.1/8/ to Re. 1/ per maund, and the necessary amendment had been made in the rate chart.
An objection was also received from the Shoe Makers ' Association, and the Commis sioner directed that if the Board wanted to make any modification, it may again publish the modified proposals.
This was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it was not necessary to republish the draft rules.
The Pre scribed Authority accordingly sanctioned the same on April 1, 1950, under section 133.
The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950.
It was stated in the notification that the rules were published under section 300 of the Act, which required their previ ous publication, but there can be no doubt that it was a notification under sub section (2) of section 135 as it was issued after receipt of the Board 's special resolution in pursuance of the sanction of the Prescribed Authority, and it was directed that the rules shall take effect from July 15, 1950.
It is therefore futile to contend that the rules were not made in accordance with the provisions of sections 134(1) and 300 of the Act and section 23 of the General Clauses Act which requires certain conditions to be ob served in regard to the making of rules after previous publication.
Ground No. 2.
It is not in dispute that the special resolution for the imposition of the tax was sent by the Officer Incharge of the Municipal Board on June 20, 1950, stating that July 15, 1950.
had been fixed for the levy of the tax.
It is true that the rules were published under the notification dated July 7, 1950, but that would not neces sarily lead to the conclusion that the resolution dated June 20, 1950, was rendered nugatory, or that it was necessary for the Board to pass another resolution.
The notification shows that the authority concerned not only published the resolution by its notification dated July 7, 1950, but also stated that they shall take effect from July 15, 1950, which was the date fixed by the resolution dated June 20, 1950, for the imposition of the tax.
There was therefore no justification for taking the view that the resolution dated June 20, 1950 could not authorise the= imposition of the tax from July 15, 1950, merely because it was passed before the publication of the rules.
At any rate any techni cal defect in the date of the resolution could not have 869 the effect of making the imposition void in the facts and circumstances of this case.
Ground No. 3.
As has been shown, the notification dated July 7, 1950, which was published under section 300 of the Act, was, in fact and substance, issued under the authori ty of sub section (2) of section 133, and it would not matter if it did not make a specific reference to that sub section and made a reference to section 300 instead.
The High Court therefore erred in thinking that there was no notification under sub section (2) of section 135 at all.
It is the nature of the notification which is decisive of the section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub section (2) of section 135.
We have thus no doubt that the notification had really been issued in compliance with the requirement of sub sec tion (2) of section 135 of the Act.
That would attract the application of sub section (3) of that section which provides as follows, "135(3) A notification of the imposition of a tax under subsection (2) shall be conclusive proof that the tax has been imposed in accord ance with the provisions of this Act.
" So when a probative effect had been given by law making the notification of the imposition of the tax as "conclusive proof" that the tax had been imposed "in accordance with the provisions of the Act", no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to the law.
It is not disputed that Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950.
The Company started the construction of its factory in 1968 69, and, as has been stated, it applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern.
The Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Company 's letter dated August 18, 1967.
The Company prayed for the continuance of the exemption even after that time limit.
The State Government however granted the exemption for five years.
The Company started "importing" certain other articles, and the State Government ultimately gave permis sion to the Board on April 2, 1973 to realise octroi from the Company with effect from May, 1974.
The Company once again applied for further exemption on August 14, 1973, but without success.
It is thus clear that, far from having any doubts about the validity of the imposition and levy of octroi, the.
Company accepted the validity thereof and prayed for exemption.
It availed of that exemption, for some years, and applied for its extension until as late as August 14, 1973.
It was only when further exemption was refused, that the Company thought of filing the writ peti tion.
As has been shown, the Company did not, even then venture to point out any reason why the imposition could be said to be invalid, and merely stated that the 870 "procedure" prescribed under sections 131 135 had not been followed.
That was far too vague a plea to justify investi gation and interference in the exercise of the extraordinary jurisdiction of the High Court under article 226 of the Constitution.
The appeal is allowed, the impugned judgment of the High Court dated March 26, 1976, is set aside, and the writ petition is dismissed with costs.
M.R. Appeal allowed.
| IN-Abs | In 1968 69 the respondent was constructing a textile factory within the area of the appellant Board, and obtained exemption from the levy of octroi on its incoming building material on the ground that it was a new concern.
It then started bringing more articles within its premises with the result that octroi was demanded from it.
The Board got permission from the State Government for realising the same.
In a writ petition by the respondent to challenge the levy, the High Court struck down the imposition of octroi on three grounds: I.
The provisions of Ss. 134(1) and 300 of the Act and section 23 of the General Clauses Act were violated owing to publication only of the tax rates and not the draft rules for the levy of octroi.
The resolution of the Board u/s 134(2) could not authorise the imposition of tax as it was passed before the publication of the rules.
No notification was published as required u/s 135 (2).
Allowing the appeal by special leave, the Court HELD: 1.
The draft rules were once published as required by sub section
(3) of section 131, and as only the rates had been reduced and the rules had not been modified, it was not necessary to re publish them.
[868 A F] Municipal Board, Hapur vs Raghuvendra Kripal & Ors. ; and Raza Butand Sugar Co. Ltd. vs Municipal Board, Ramput, ; , referred to.
The Resolution dated June 20, 1950, could authorise the imposition of the tax from July 15, 1950, although it was passed before the publication of the rules.
The resolu tion was not rendered nugatory and it was not necessary for the Board to pass another one.
[868 G H] 3.
It is the nature of the notification which is deci sive of the section under which it has been issued and it would not matter if it did not make a specific reference to sub section (2) of section 135 and made a reference to Section 300 instead.
[869 B]
|
Appeal No. 312 of 1955.
On appeal by special leave from the judgment and order dated the 19th October 1955 of the Andhra High Court at Guntur in 0.
section Appeal No. I of 1955 1068 arising out of the Order dated the 26th day of September 1955 of the said High Court in its Ordinary Original Civil Jurisdiction in O.P. No. 3 of 1955.
M. section K. Sastri, for the appellant.
D. Narasaraju, Advocate General, Andhra (T. Anantha Babu and T. V. R. Tatachari with him), for respondent No. 1. D. Narasaraju, Advocate General, Andhra (A. Krishnaswami and K. B. Chowdhry, with him) for respondents Nos. 2 and 3. 1955.
December 16.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal arises out of an application filed by the first respondent under section 162, clauses (v) and (vi) of the Indian Companies Act for an order that the Rajahmundry Electric Supply Corporation Ltd., be wound up.
The grounds on which the relief was claimed were that the affairs of the Company were being grossly mis managed, that large amounts were owing to the Government for charges for electric energy supplied by them, that the directors had misappropriated the funds of the Company, and that the directorate which had the majority in voting strength was "riding roughshod" over the rights of the shareholders.
In the alternative, it was prayed that action might be taken under section 153 C and appropriate orders passed to protect the rights of the shareholders.
The only effective opposition to the application came from the Chairman of the Company, Appanna Ranga Rao, who contested it on the ground that it was the Vice Chairman, Devata Ramamobanrao, who was responsible for the maladministration of the Company, that he had been removed from the directorate, and steps were being taken to call him to account, and that there was accordingly no ground either for passing an order under section 162, or for taking action under section 153 C.
The learned Judge of the Andhra High Court before whom the application came up for hearing, held that 1069 the charges set out therein had been substantially proved, and that it was a fit case for an order for winding up being made under section 162(vi).
He also held that under the circumstances action could be taken under section 153 C, and accordingly appointed two administrators for the management of the Company for a period of six months vesting in them all the powers of the directorate and authorising them to take the necessary steps for recovering the amounts due, paying the debts and for convening a meeting of the shareholders for the purpose of ascertaining their wishes whether the administration should continue, or whether a new Board of Directors should be constituted for the management of the Company.
Against this order, the Chairman, Appanna Ranga Rao, acting in the name of the Company preferred an appeal to a Bench of the Andhra High Court.
The learned Judges agreed with the trial Judge that the affairs of the Company, as they stood, justified action being taken under section 153 C, and dis missed the appeal.
Against this order, the Company has preferred this appeal by special leave.
On behalf of the appellant, it was firstly contended that the application in so far as it was laid under section 153 C was not maintainable, as there was no proof that the applicant bad obtained the consent of the requisite number of shareholders as provided in sub clause (3)(a)(i) to section 153 C.
That clause provides that a member is entitled to apply for relief only if he has obtained the consent in writing of not less than one hundred in number of the members of the company or not less than one tenth in number of the members, whichever is less.
The first respondent stated in his application that he bad obtained the consent of 80 shareholders, which was more than onetenth of the total number of members, and had thus satisfied the condition laid down in section 153 C, sub clause (3) (a) (i).
To this, an objection was taken in one of the written statements filed on behalf of the respondents that out of the 80 persons who had consented to the institution of the application, 13 were not share holders at all, and that two members 1070 had signed twice.
It was further alleged that 13 of the persons who had given their consent to the filing of the application had subsequently withdrawn their consent.
In the result, excluding these 28 members, it was pleaded, the number of persons who had consented would be reduced to 52, and therefore the condition laid down in section 153 C, sub clause (3) (a) (i) was not satisfied.
This point is not dealt with in the judgment of the trial court, and the argument before us is that as the objection went to the root of the matter and struck at the very maintainability of the application, evidence should have been taken on the matter and a finding, recorded thereon.
We do not find any substance in this contention.
Though the objection was raised in the written statement, the respondents did not press the same at the trial, and the question was never argued before the trial Judge.
The learned Judges before whom this contention was raised on appeal declined to entertain it, as it was not pressed in the trial court, and there are no grounds for permitting the appellant to raise it in this appeal.
Even otherwise, we are of opinion that this contention must, on the allegations in the statement, assuming them to be true, fail on the merits.
Excluding the names of the 13 persons who are stated to be not members and the two who are stated to have signed twice, the number of members who had given consent to the institution of the application was 65.
The number of members of the Company is stated to be 603.
If, therefore, 65 members consented to the application in writing, that would be sufficient to satisfy the condition laid down in section 153 C, subclause (3)(a) (i).
But it is argued that as 13 of the members who had consented to the filing of the application bad, subsequent to its presentation, withdrawn their consent, it thereafter ceased to satisfy the requirements of the statute, and was no longer maintainable.
We have no hesitation in rejecting this contention.
The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when 1071 presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation.
In our opinion, the withdrawal of consent by 13 of the members, even if true, cannot affect either the right of the applicant to proceed with the application or the jurisdiction of the court to dispose of it on its own merits.
It was next contended that the allegations in the application were not sufficient to support a winding up order under section 162, and that therefore no action could be taken under section 153 C.
We agree with the appellant that before taking action under section 153 C, the court must be satisfied that circumstances exist on which an order for winding up could be made under section 162.
The true scope of section 153 C is that whereas prior to its enactment the court had no option but to pass an order for winding up when the conditions mentioned in section 162 were satisfied, it could now in exercise of the powers conferred by that section make an order for its management by the court with a view to its being ultimately salvaged.
Where, therefore, the facts proved do not make out a case for winding up under section 162, no order could be passed under section 153 C.
The question therefore to be determined is whether the facts found make out a case for passing a winding up order under section 162.
In his application the first respondent relied on section 162, clauses (v) and (vi) for an order for winding up.
Under section 162(v), such an order could be made if the company is unable to pay its debts.
It was.
alleged in the application that the arrears due to the Government on 25 6 1955 by way of charges for energy supplied by them amounted to Rs. 3,10,175 3 6.
But there was no evidence that the Company was unable to pay the amount and was commercially insolvent, and the learned trial Judge rightly held that section 162(v) was inapplicable.
But he was of the opinion that on the facts established it was just and equitable to make an order for winding up under section 162(vi), and that view has been affirmed by the learned Judges on appeal.
1072 It was argued for the appellant that the evidence only established that the Vice Chairman, Devata Ramamohan Rao, who had been ineffective management was guilty of misconduct, and that by itself was not a sufficient ground for making an order for winding up.
It was further argued that the words "just and equitable" in clause (vi) must be construed ejusdem generis with the matters mentioned in clauses (i) to (v), that mere misconduct of the directors was not a ground on which a winding up order could be made, and that it was a matter of internal management for which resort must be bad to the other remedies provided in the Act.
The decisions in In re Anglo Greek Steam Company(1) and In re Diamond Fuel Company(2) were relied on in support of this position.
In In re Anglo Greek Steam Company(1), it was held that the misconduct of the directors of a company was not a ground on which the court could order winding up under the just and equitable clause, unless it was established that by reason of such mismanagement the company bad become insolvent.
In In re Diamond Fuel Company(2), it was observed by Baggallay, L.J. that, ". mere misconduct or mismanagement on the part of the directors, even although it might be such as to justify a suit against them in respect of such misconduct or mismanagement, is not of itself sufficient to justify a winding up order".
The contention of the appellant is that as all the charges made in the application amounted only to misconduct on the part of the directors, and as there was no proof that the Company was unable to pay its debts, an order for winding up under section 162 could not be made.
The authorities relied on by the appellant reflect the view which was at one time held in England as to the true meaning and scope of the words "just and equitable" in the provisions corresponding to section 162(vi) of the Indian Act.
In Spackman 's Case(3), Lord Cottenham, L.C. construed them as ejusdem (1) [1866] L.R. 2 Eq.
(2) , 408.
(3) [1849) 1 M. & G. 170; ; , 1230.
1073 generis with the matters mentioned in the other clauses to the section, and that construction was followed in a number of cases.
Vide Re Suburban Hotel Co.(1), In re Anglo Greek Steam Company(2), Re European Life Assurance Society(3) and In re Diamond Fuel Company(4).
But a different view came to be adopted in later decisions (vide In re Amalgamated Syndicate(5)), and the question must now be taken to be settled by the pronouncement of the Judicial Committee in Loch vs John Blackwood Ld.(6), where after an elaborate review of the authorities, Lord Shaw observed that, ". . it is in accordance with the laws of England, of Scotland and of Ireland that the ejusdem generis doctrine (as supposed to have been laid by Lord Cottenham) does not operate so as to confine the cases of winding up to those strictly analogous to the instances of the first five sub sections of section 129 of the British Act '.
The law is thus stated in Halsbury 's Laws of England, Third Edition, Volume 6, page 534, para 1035: "The words 'just and equitable ' in the enactment specifying the grounds for winding up by the court are not to be read as being ejusdem generis with the preceding words of the enactment".
When once it is held that the words "just and equitable" are not to be construed ejusdem generis, then whether mismanagement of directors is a ground for a winding up order under section 162(vi) becomes a question to be decided on the facts of each case.
Where nothing more is established than that the directors have misappropriated the funds of the Company, an order for winding up would not be just or equitable, because if it is a sound concern, such an order must operate harshly on the rights of the share holders.
But if, in addition to such misconduct, circumstances exist which render it desirable in the interests of the shareholders that the Company should be wound up, there is nothing in section 162(vi) (1) (3) (5) (2) [1866] L.R. 2 Eq.
(4) , 408.
(6) ; , 790.
1074 which bars the jurisdiction of the court to make such an order.
Loch vs
John Blackwood.(1)was itself a case in which the order for winding up was asked for on the ground of mismanagement by the directors, and the law was thus stated at page 788: "It is undoubtedly true that at the foundation of applications for winding up, on the 'just and equitable ' rule, there must lie a justifiable lack of confidence in the conduct and management of the company 's affairs.
But this lack of confidence must be grounded on conduct of the directors, not in regard to their private life or affairs, but in regard to the company 's business.
Further more the lack of confidence must spring not from dissatisfaction at being outvoted on the business affairs or on what is called the domestic policy of the company.
On the other hand, wherever the lack of confidence is rested on a lack of probity in the conduct of the company 's affairs, then the former is justified by the latter, and it is under the statute just and equitable that the company be wound up".
Now, the facts as found by the courts below are that the Vice Chairman grossly mismanaged the affairs of the Company, and had drawn considerable amounts for his personal purposes, that arrears due to the Government for supply of electric energy as on 25 6 1955 was Rs. 3,10,175 3 6, that large collections had to be made that the machinery was in a state of disrepair, that by reason of death and other causes the directorate had become greatly attenuated and "a powerful local junta was ruling the roost", and that the shareholders outside the group of the Chairman were apathetic and powerless to set matters right.
On these findings, the courts below had the power to direct the winding up of the Company under section 162(vi), and no grounds have been shown for our interfering with their order.
It was urged on behalf of the appellant that as the Vice Chairman who was responsible for the mismanagement had been removed, and the present (1) ; , 790.
1075 management was taking steps to set things right and to put an end to the matters complained of, there was no need to take action under section 153 C.
But the findings of the courts below are that the Chairman himself either actively co operated with the ViceChairman in various acts of misconduct and maladministration or that he had, at any rate, on his own showing abdicated the entire management to him, and that as the affairs of the Company where in a state of confusion and embarrassment, it was necessary to take action under section 153 C.
We are of opinion that the learned Judges were justified on the above findings in passing the order which they did.
It was also contended that the appointment of administrators in supersession of the directorate and vesting power in them to manage the Company was an interference with its internal management.
It is no doubt the law that courts will not, in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with the management of a company by its directors, so long as they are acting within the power conferred on them under the Articles of Association.
But this rule can by its very nature apply only when the company is a running concern, and it is sought to interfere with its affairs as a running concern.
But when an application is presented to wind up a company, its very object is to put an end to its existence, and for that purpose to terminate its management in accordance with the Articles of Association and to vest it in the court.
, In that situation, there is no scope for the rule that the court should not interfere in matters of internal management.
And where accordingly a case had been made out for an order for winding up under section 162, the appointment of administrators under section 153 C cannot be attacked on the ground that it is an interference with the internal management of the affairs of the Company.
If a Liquidator can be appointed to manage the affairs of a company when an order for winding up is made under section 162, administrators could also be 136 1076 appointed to manage its affairs, when action is taken under section 153 C.
This contention must accordingly be rejected.
In the result, the appeal fails and is dismissed with costs, of the first respondent.
The costs of the administrator will come out of the estate.
| IN-Abs | An application was filed by the first respondent under section 162 clauses (v) and (vi) of the Indian Companies Act for the winding up of the Company on the grounds, inter alia, that the affairs of the Company were being mismanaged and that the directors had misappropriated the funds of the Company.
In the alternative it was prayed that action might be taken under section 153 C and appropriate orders be passed to protect the interests of the shareholders.
The High Court held (i) that the charges set out in the application bad been substantially proved and that it was a fit case for an order for winding up being made under section 162(vi) and (ii) that under the circumstances action could be taken under section 153 C and accordingly it appointed two administrators with all the powers of directors to look after the affairs of the Company.
On appeal by special leave to the Supreme Court by the Company it was contended that the 1067 application under section 153 C was not maintainable inasmuch as there was no proof that the applicant had obtained the consent of requisite number of shareholders as provided in sub clause (3)(a)(i) to section 153 C, that clause providing that a member applying for relief must obtain the consent in writing of not less than one hundred members of the Company or not less than one tenth of the members of the Company whichever is less.
It was alleged that thirteen members who had given their consent to the filing of the application had subsequently withdrawn their consent.
Held that the validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation.
The withdrawal of consent by thirteen of the members, even if true, could not affect either the right of the applicant to proceed with the application or the juris diction of the court to dispose of it on its own merits.
Held further that before taking action under section 153 C the court must be satisfied that circumstances exist on which an order for winding up could be made under section 162 and where therefore the facts proved do not make out a case for winding up under section 162, no order can be passed under section 153 C.
The words "just and equitable" in section 162(vi) are not to be construed ejusdem generis with the matters mentioned in clauses (i) to (v) of the section.
If there is merely a misconduct of the directors in misappropriating the funds of the Company an order for winding up would not be just and equitable but if in addition to such misconduct, circumstances exist which render it desirable in the interests of the shareholders that the Company should be wound up, section 162(vi) would be no bar to the jurisdiction of the court to make such an order.
The order for winding up was just and equitable in the cir cumstances of the present case.
In re Anglo Greek Steam Company ([1866] L.R. 2 Eq. 1), In re Diamond Fuel Company ([1879] , Spackman 's Case ([1849] 1 M. & G. 170), Be Suburban Hotel Company ([1867] , Be European Life Assurance Society ([1869] I,.
R. , In re Amalgamated Syndicate ([1897] 2 Ch.
600) and Loch vs John Blackwood Ltd. ([1924] A. C. 783, 790), referred to.
|
: Criminal Appeal No. 193 of 1971.
Appeal by Special Leave from the Judgment and Order dated 11 5 71 of the Orissa High Court in Criminal Appeal No. 14/70.
Gobind Das, Mrs. Sunanda Bhandare, ,A. K. Mathur, A. K. Sharma and M.S. Bhandare, for the Appellant.
S.C. Agarwal and G.S. Chatterjee, for the Respondent.
The Judgment of the Court was delivered FAZAL ALl, J.
In this appeal by special leave, the appellant has been convicted for criminal misconduct under s.5(2) read with S.5(1) (c) of the Prevention of Corruption Act, 1947 and sentenced to rigorous imprisonment for three years.
He has also been convicted under section 5(1)(d) of the Prevention of Corruption Act but no separate sentence has been passed thereunder.
The appellant preferred an .appeal to the High Court of Orissa against the order of the Special Judge which was, however, dismissed, and the convic tions and sentences imposed on him were confirmed by the High Court.
Thereafter an application for leave to appeal to this Court was made before the High Court, which having been refused the appellant obtained special leave from this Court, and hence this appeal.
After going through the judgments of the Courts below, we are constrained to observe that the High Court as well as the Trial Court have made a wholly wrong approach in apply ing the provisions of the Prevention of Corruption Act in the case of the appellant.
Put briefly, the prosecution case was as follows: The appellant was the Additional District Magistrate, Cuttack from September 1964 to June 1966 and in that capaci ty he was in 442 overall charge of the Nizarat and land acquisition sections of the Collectorate.
Sayad Allamuddian Ahmed P.W. 8 was the District Land Acquisition Officer and one A. Ballav Pradhan P.W. 9 was the Nizarat Officer, whereas Prahalad Mahapatra P.W. 1 was the Nazir and Rajkishore Das P.W. 2 was the Assistant Nazir under P.W. 1 P.W. 3 Bhakta Charan Mohanti was the Land Acquisition Inspector.
It appears that a number of lands had been acquired by the Government for certain public projects in various villages particularly Mauza Balichandrapur with which we are concerned in the present case.
A huge compensation amount to be given to land owners had been deposited in the treasury for payment to them.
It appears that a sum of Rs. 31,793.85 had been disbursed by July 24, 1964 leaving a balance of Rs. 11,650 61 but no disbursement could be made between July 24, 1964 and January 20, 1965 as the villagers refused to accept the payments and wanted the Land Acquisition proceedings to be withdrawn.
The prosecution case further is that the appellant as Addi tional District Magistrate attended a meeting at the Secre tariat in the office of the Secretary of Works Department at Bhubaneswar on September 25, 1964 where certain decisions were taken.
There appears to be some divergence of opinion between the appellant and the prosecution on the delibera tions of the aforesaid meeting which we shall consider later.
It is further alleged that on January 9, 1965 the appellant directed the Nazir to pay him a sum of Rs. 10,000/from the cash which remained with the Nazir P.W. 1 for the purpose of distributing the amount to the land owners of the village Balichandrapur.
As, however, the A.D.M. 's visit to Balichandrapur could not materialise because the Executive Engineer with whom he was to go there was not available, the visit was postponed and the A.D.M. went to some other place.
On January 20, 1965 the appellant again took a sum of Rs. 10,000/ from the Nazir and decided to visit the village Balichandrapur along with the Executive Engineer and the Land Acquisition Inspector.
It is said that the S.D.O., P.W.D., also accompanied the party to the village Balichandrapur, and the case of the appellant is that the Land Acquisition Inspector also travelled to Bali chandrapur with the appellant, though this fact is disputed by the Land Acquisition Inspector.
It is, however, the admitted case of the prosecution that there ,was no dis bursement in village Balichandrapur and thereafter the amount of Rs. 10,000/ was not deposited with the Nazir but remained in the personal custody of the appellant who ap pears to have retained it dishonestly for about six months.
This is the gravamen of the charges against the appellant.
We may also mention that the amount was paid to the Nazir towards the end of September 1965 when it was deposited in the treasury.
On receiving certain applications, the Vigi lance Organisation of the State of Orissa instituted an inquiry against the appellant and after completing the same lodged a formal F.I.R. on May 13, 1966.
The appellant thereafter was challaned under various sections of the Prevention of Corruption Act and ultimately convicted as indicated above.
The case of the appellant was that he had no doubt withdrawn a sum of Rs. 10,000/ from the Nazir on January 9, 1965 but on his return from tour as he could not disburse the money to the 443 villagers he had returned it to the Nazir at Cuttack on January 13, 1965.
When, however, he again decided to go to the village with the Executive Engineer and others on Janu ary 20, 1965 he again directed the Nazir to pay him the amount for disbursement.
He went to the village Balichan drapur and tried to persuade the villagers to accept the compensation amount so that the Government project may be started as soon as possible.
The villagers wanted some other alignment to be made or the compensatioion to be increased, and the appellant persuaded them to accept part payment and assured them that he will try to get the amount increased.
It was also the definite case of the appellant that in the meeting held in the secretariat on September 25, 1964, the appellant was expressly directed to proceed to the spot and persuade the villagers to accept the compensation money and it was in consequence of this mandate from the Secretary of works Department that the A.D.M. proceeded to the village Balichandrapur and made all possible efforts to persuade the tenants to accept compensation even by holding out promises to them.
Unfortunately, however, the villagers refused to accept the compensation and the party had to come back to Cuttack disappointed.
The appellant further seemed to suggest that although he had failed to persuade the villagers to accept the money he had not com pletely lost all hopes and that there was a possibility of the villagers coming round to his point of view and ulti mately decide to accept the compensation and for this reason the appellant returned the sum of Rs. 10,000/ to the Nazir on his return from the village but directed him not to deposit the same in the treasury or to make any entry in the Cash Register so that if the villagers came to Cuttuck to demand the money they could be given the same immediately without any formality of a fresh withdrawal.
The appellant further averred that because of some personal jealousies, a false complaint was made against him which necessitated an inquiry.
The Courts below accepted the prosecution case and disbelieved the version of the defence completely.
The High Court has found that as the entrustment was proved and admitted by the appellant himself and the explanation given by him was absolutely false, this would lead to the irre sistible inference that the appellant had temporarily misap propriated the money.
It was also suggested by the prosecu tion that at the relevant time the appellant was building a house and he had already applied for loans from the Govern ment and it may be that for this purpose he might have been in need of the money to build his house.
One of the essential peculiarities of this case is that as many as three witnesses examined by the prosecution to prove its case, namely, P.Ws. 6, 7 and 8, had been declared hostile and the Public Prosecutor sought permission of the Court to cross examine those witnesses which was readily allowed.
According to the prosecution these witnesses tried to help the accused and made certain statements which sup ported the case of the appellant and, therefore, had to be crossexamined by the prosecution.
Having regard to the stand taken by the parties, the matter lies within a very narrow compass.
So far as the entrustment of Rs. 444 10,000/ is concerned that is undoubtedly admitted by the appellant, and the only explanation given by him is that he had returned the money to the Nazir after his return from the village Balichandrapur and he had also directed the Nazir not to deposit the money in the treasury.
If once the explanation of the accused is disbelieved, or proved to be absolutely false, then it is quite natural that he must be presumed to have retained the money with himself for a period of six months.
Although the Onus lies on the prose cution to prove the charge against the accused, yet where the entrustment is proved or admitted it will be difficult.
for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused.
In Jaikrishnadas Manohar das Desai and Anr.
vs State of Bombay(1) this Court observed as follows: "The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation on conversion.
Convic tion of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrust ed to him, of over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an infer ence of misappropriation with dishonest intent may readily be made.
" The Courts below appear to have convicted the appellant on the basis of the decision referred to above and have held that since the explanation given by the appellant was false, an inference of misappropriation could reasonably be drawn against him.
This proposition cannot be doubted.
But the question is whether the explanation given by the appellant in this case can be said to be absolutely false ? Another question that arises is what are the standards to be em ployed in order to judge the truth or falsity of the version given by the defence ? Should the accused prove his case with the same amount of rigour and certainty, as the prose cution is required, to prove a criminal charge, or it is sufficient if the accused puts forward a probable or reason able explanation which is sufficient to throw doubt on the prosecution case ? In our opinion three cardinal prin ciples of criminal jurisprudence are well settled, namely: (1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weak ness or falsity of the defence version while prov ing its case; (1) , 324. 445 (2) that in a criminal trial the accused must be presumed to be innocent unless he is.
proved to.
be guilty; and (3) that the onus of the prosecution never shifts.
It is true that under section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and .standard of proof required.
The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge.
In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabil ities as envisaged by section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established .the charge beyond reasonable doubt.
In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely.
It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court.
This aspect of the matter is no longer res integra but is concluded by several authorities of this Court.
In Harbha jan Singh vs State of Punjab (1) this Court observed as follows: "But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not re quired to discharge that burden by leading evidence to prove his case beyond a reasonable doubt.
That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception.
Where an accused person is called upon to prove that his case fails under an Exception, law treats the onus as dis charged if the accused person succeeds "in proving a preponderance of probability.
" As soon as the preponderance of probability is proved, the burden shifts to.
the prosecution which has still to discharge its original onus.
It must be remembered that basically, the original onus (1) ; , 241 446 never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.
" The same view was taken in a later case in State of U.P. vs Ram Swarup & Anr.(1) where this Court observed as follows: "That is to say, an accused may fail to establish affirmatively the existence of circum stances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecu tion, in which event he would be entitled to an acquittal.
The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt.
It is enough for the accused to show, as in a civil case, that the preponderence of probabilities is in favour of his plea." While the Courts below have enunciated the law correct ly, they seem to have applied it wrongly by overlooking the mode and nature of proof that is required of the appellant.
A perusal of the oral and documentary evidence led by the parties goes to show that the Courts not only sought the strictest possible proof from the appellant regarding the explanation given by him, but went to.
the extent of mis placing the onus on.the accused to prove even the prosecu tion case by rejecting the admissions made by the prosecu tion witnesses and by not relying on the documents which were in power and possession of the prosecution itself on the speculative assumption that they were brought into existence by the accused through the aid of the officers.
Further more, the Courts below have failed to consider that once the appellant gives a reasonable and probable explana tion, it is for the prosecution to prove affirmatively that the explanation is absolutely false.
In a criminal trial, it is not at all obligatory on the accused to produce evi dence in support of his defence and for the purpose of proving his version he can rely on the admissions made by the prosecution witnesses or on the documents field by the prosecution.
In these circumstances, the Court has to probe and consider the materials relied upon by the de fence instead of raising an adverse inference against the accused, for not producing evidence in support of his defence, because as we have already stated that the prosecu tion can not derive any strength or support from the weak ness of the defence case.
The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.
Thus it would appear to us that both the Courts below have made an absolutely wrong approach in deciding the truth of the defence version and have not followed principles laid down by this Court in judging the case of the accused.
The Courts below have based the conviction of the appel lant on the sole testimony of P.W. 1 the Nazir who has categorically stated (1) [1975] 1.S.C.R. 409, 416 17. 447 in the Court that the appellant had taken a sum of Rs. 10,000/ on January 9, 1965 and thereafter he never returned this amount to the Nazir until September 30, 1965.
The Courts below have chosen to place implicit reliance on the evidence of P.W. 1 completely ignoring the important admis sions made in favour of the accused by other prosecution witnesses some of whom were declared hostile and some of whom were not.
Before analysing the evidence, it may be necessary to describe the exact allegation made by the prosecution against the accused.
The starting point of the case is a meeting which is said to have taken place in the Secretariat on September 25, 1964 in which according to the appellant he was positively directed to visit the villages and persuade the land owners to receive the compensation and this formed the occasion for the A.D.M. to have withdrawn the money to visit the spot with the money.
According to the prosecution no such decision was at all taken in the meeting and the visit to the village Balichandrapur might have been for some other purpose and the question of distri bution was only a pretext invented by the accused to shield his guilt.
We would, therefore, now take up the evidence regarding the meeting said to have taken place on September 25, 1964.
We might also mention that the learned Special Judge has believed the statement of the accused that he did attend the meeting in the Secretariat on September 25, 1964, as would appear from the finding given by him at p. 79 of the Paper Book.
What the Special Judge has not accepted is the assertion of the accused that he had been directed to visit the village personally and distribute the amounts to the villagers.
The meeting is said to have been called by the Secretary Works Department and therefore the Secretary Works Department was the best person who would have thrown light on the subject and would have clinched the issue.
The Secretary, Works Department, was a Government servant and it was not at all difficult for the prosecution to have examined him to settle the controversy on this matter.
For the reasons best known to the prosecution, the Secretary, Works Department, was not at all examined and we have to decide this question on the basis of oral and documentary evidence produced by the prosecution.
The Special Judge, instead of drawing an adverse inference against the prosecu tion, has placed the onus on the accused for not having summoned the Secretary, Works Department, as a witness in defence forgetting that it was part of the prosecution case itself that no decision to distribute the amount was taken in the meeting and therefore, the money was not taken for distribution to tenants in the village but was misappropri ated.
It was not for the defence to prove the prosecution case which formed the bulwark of the charge of misappro priation.
Further more, the Secretary, Works Department, was a high Officer of the Government and he could have thrown a flood of light on this question.
Now coming first to the oral evidence, P.W. 8 Sayad Allamuddin who was the Land Acquisition Officer Cuttack has testified to the fact that in the meeting held on September 25, 1964 the appellant had been asked to take early action for payment of compensation money by going personally to persuade the tenants.
Perhaps, it was because of this statement, that this witness was declared hostile, and the prosecution 448 sought permission to cross examine him.
The actual state ment made by him in the Court may be quoted thus: "The accused had been asked to take early action for payment of the compensation money, by going personally and by persuading the tenants.
It was the duty of the accused to see that compensa tion amounts were paid for land acquisition.
" When the witness was declared hostile, all that was elicited from him was as follows: "It is not a fact that I had not stated to Investigating Officer that the accused and the Executive Engineer persuaded the tenants to receive the compensation amount.
It is not a fact that I had stated to the Investigating Officer that while we were returning, some people wanted to take part payments for the lands already acquired, but no payment was made by the accused as we were then leaving.
" Thus the prosecution even in cross examination did not give any suggestion that the witness who was present in the meeting held on September 25, 1964 had stated on earlier occasions that no decision was taken in the meeting direct ing the accused to visit the village and persuade the ten ants to receive the compensation amounts.
He merely did not state to the police that when the accused and the Executive Engineer visited the spot they did not persuade the tenants to receive the compensation amounts.
This was a case of a mere omission of a broad detail and not a case of contra diction.
In these circumstances, therefore, the evidence of this witness on the question as to what transpired in the meeting and the nature of the directions given to the appel lant remains unchallenged, and even if he was declared to be a hostile witness, he does not cease to be a reliable witness.
if the Court chooses to accept his testimony.
Before proceeding further we might like to state the law on the subject at this stage.
Section 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross examine them.
The section runs thus: "The Court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross examination by the adverse party.
" The section confers a judicial discretion on the Court to permit crossexamination and does not contain any conditions or principles which may govern the exercise of discretion.
It is, however, well settled that the discretion must be judiciously and properly exercised in the interests of justice.
The law on the subject is well settled that a party will not normally be allowed to cross examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has 449 resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross examine him to get out the truth.
One of the glaring instances in which this Court sustained the order of the Court in allowing cross examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence.
In Dahyabhai Chaganbhai Thakker vs State of Gujarat(1) this Court made the following observations: "Section 154 does not in terms, or by neces sary implication confine the exercise of the power by the court before the examination in chief is concluded or to any particular stage of the exami nation of the witness.
It is wide in scope and the discretion is entirely left to the court to exer cise the power when the circumstances demand.
To confine this power to the stage of examination in chief is to make it ineffective in practice.
A clever witness in his examination in chief faith fully conforms to what he stated earlier to.
the police or in the committing court, but in the cross examination introduces statements.
in a subtle way contradicting in effect what he ;stated in the examination in chief.
If his design is obvious, we do not see why the court cannot, during the course of his cross examination, permit the person calling him as a witness to put ques tions to him which might be put in cross examina tion by the adverse party." "Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and, therefore, he committed the murder.
" A perusal of the above observations will clearly indicate that the permission to cross examination was upheld by this Court because the witnesses had categorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the Court that the accused was insane.
Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an ele ment of hostility to the party for whom he is deposing.
Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion allow the party concerned to cross examine its own witnesses cannot be allowed.
In other words a witness should be regarded as adverse and liable to be cross examined by the party calling him only when the Court is satisfied that the witness bears hostile animals against the party for whom he is deposing or that he does not appear (1) ; ,368, 369 70.
450 to be willing to tell the truth.
In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most mate rial point with the one which he gave before the i previous authorities.
The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile inten tion.
It may be rather difficult to lay down a rule of univer sal application as to when and in what circumstances the Court will be entitled to exercise its discretion under section 154 of the Evidence Act and the matter will largely depend on the facts and circumstances of such case and on the satisfaction of the Court on the basis of those circum stances.
Broadly, however, this much is clear that the contingency of cross examining the witness by the party calling him is an extra ordinary phenomenon and permission should be given only in special cases.
It seems to us that before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the wit ness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides and transferred his loyalty to the adversary.
Further more, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion.
The Court, before permitting the party calling the witness to cross examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner.
It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be crossexamined does not make him an unreliable witness so as to exclude his evidence from consideration altogether.
In Bhagwan Singh vs State of Haryana(1), Bhag wati, J., speaking for this Court observed as follows: "The prosecution could have been avoided requesting for permission to cross examine the witness under Section 154 of the Evidence Act.
But the fact that the court gave permission to the prosecutor to cross examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence.
The evidence remains admissible in the trial and there is no legal bar to base a convic tion upon his testimony if corroborated by other reliabIe evidence.
" Applying these principles, we would now examine the position.
So far as P.W. Sayad Allamuddin was concerned, he was the Land Acquisition Officer and merely because he happened to be working ; , 391 92. 451 under the accused, there was no reason for him to depose falsely at a time when the appellant had been suspended and was facing a trial before the Special Judge.
Further more, on the basic point that the accused had been asked in the meeting to go personally to the village and persuade the tenants to receive compensation money nothing has been elicited from him even in cross examination to show that this statement was an after thought or was in any event incorrect or false.
We shall presently show that this statement is supported by documents of an unimpeachable nature which have been produced by the prosecution itself and whose genuineness cannot be doubted.
Exhibit 2 which is a note by this witness dated January 9, 1965 long before an inquiry started against the accused contains categorically a statement which runs as follows: "In the last meeting held in the Secretariat the Secretary, Works Department suggested that the A.D.M. and the Executive Engineer (R & B) should .try to persuade the villagers and make payment of the compensation.
" This note further shows that the appellant proposed to pay a visit to the area along with the Executive Engineer and he had suggested that the A.D.M. should take an amount of Rs. 10,000/ for disbursement if the villagers agreed to receive compensation.
This document, according to P.W. 1, the Nazir, who is the star witness of the prosecution, was received by him as far back as January 9, 1965 along with Ext. 1 the order of the appellant directing the Nazir to pay him Rs. 10,000/ .
It would be impossible to suggest that as early as January 9, 1965 the witness Sayad Allamuddin Ahmed P.W. 8 was fabricating this document regarding an event which had taken three or four months ago without any rhyme or reason.
Thus Ext.
2 fully corroborates the evidence of P.W. 8 on the point as to what transpired at the meeting held in the Secretariat and demolishes the prosecution case that no instructions were given to the appellant on Septem ber 25, 1964 in the meeting for visiting the spot and per suade the tenants to accept compensation money.
In these circumstances, therefore, we feel that the Trial Court was not at all justified in declaring P.W. 8 as a hostile wit ness or in allowing the prosecution to cross examine him.
Even if he was cross examined his evidence appears to be fully acceptable and worthy of credence.
He is a person of status and responsibility and there is nothing to show why he should depose falsely merely to help the accused knowing full well that being a Government servant he might be harmed if he made a false statement in order to support the appellant.
This fact is further supported by another official docu ment which is Ext.
10, namely, the tour diary of the appel lant dated January 7, 1965 to January 31, 1965.
In this diary the appellant, as far back as January 7, 1965, made a clear mention of the facts that transpired at the meeting and stated thus: "Discussed with Revenue Secretary regarding various allegations of Kanika Tahasil pending for enquiry.
He also wanted that I should visit the spot and enquire into the matter 452 personally and also make a thorough enquiry into the various encroachments in different forest blocks of Kanika Tahasil." This statement which is made in an official document in the discharge of his duties has been made even before the money was sought to be withdrawn from the treasury and at a time when there was no dispute at all regarding the question of misappropriation.
This document also fully corroborates the evidence of P.W. 8.
Thus from the evidence of the prosecu tion itself, the fact that in the meeting held in the Secre tariat a decision was taken by Which the appellant was directed to visit the village Balichandrapur and persuade the tenants to accept the compensation has been amply proved.
The only person who could have contradicted this fact or falsified the same would have been the Secretary, Works Department, in whose presence the meeting took place whom the prosecution did not choose to examine.
On the materials produced by the prosecution itself, it is manifest that the prosecution has miserably failed to prove that the visit of the A.D.M. to the village Balichandrapur on Janu ary 9, 1965 was not in connection with the payment of com pensation to the villagers as no such decision was taken in the meeting.
The next question that arises is whether the appellant had actually taken the money for disbursement to the vil lage Balichandrapur.
On this point also oral and documen tary evidence led by the prosecution clearly proves the version given by the appellant.
To begin with, P.W. 7 who was an Executive Engineer at the relevant.
time has categor ically stated that he had accompanied the appellant to village Balichandrapur and the appellant did try to persuade the tenants to receive the compensation but they refused to accept the same.
In this connection the witness deposed as follows: "The accused thereafter enquired from the parties as to on what terms they were willing to give up possession of their lands which had already been selected for acquisition.
The parties stated that if they were paid compen sation at the rate of Rs. 200/ per gunth, they would part with their lands.
The accused stated that he did not have sanction for payment of Rs. 200/ per gunth and could not pay them off hand, but if the parties wanted payment at the rate of Rs. 150/ per gunth he was willing to pay them cash at the spot.
The parties did not agree.
The accused said that they would be paid Rs. 200/ .
when that rate would be sanctioned and he was going to write about it.
" This witness was also declared hostile and that too not because he had not made the statement referred to above before the police, but because of certain minor omissions in his statement before the police.
These omissions consisted of the facts that there is no mention about the previous visit to Balichandrapur or that he had stated that while he was returning to Cuttuck he remained sitting in the car and the accused asked P.W. 3 to follow him with the bag 453 and things like that.
It has, however, not been elicited from him in cross examination nor has it been argued that the witness had told the Investigating Officer that the accused had not met or had not talked at all with the ten ants in his presence in order to persuade them to accept the compensation.
P.W. 6 Udaynath Parida who is a villager of Balichandra pur has categorically supported the statement of P.W. 7 that the accused had agreed to pay compensation at the rate of Rs. 200/ per gunth and persuaded them to give up possession but the villagers refused.
In this connection, the witness stated thus: "On hearing of the arrival of the accused we met him in Balichandrapur near the market place.
We demanded payment of compensation money at a rate higher than what was proposed by Government.
The accused and his party agreed to pay us compensation at the rate of RS.
200/per gunth and persuaded us to give up possession so that Government may not be forced to take possession forcibly with the help of police.
" "The accused had informed the villagers in cluding me that if we would be willing to accept the rate already fixed by Government, at Rs. 150/ per gunth, he would pay us at the spot;" This witness was also declared hostile, merely because of certain facts which he had omitted to state before the police.
Thus it would appear that all the prosecution witnesses P.Ws. 6, 7 and 8 had been allowed to be declared hostile without any justification and the Trial Court appear to have exercised its discretion mechanically in readily accepting the prayer of the prosecution without making any probe into the reasons for allowing the cross examination.
Indeed if suck a discretion is freely exercised, then the accused will suffer serious prejudice and will be deprived of taking advantage of any damaging admission made by the prosecution witnesses, merely because the prosecution is allowed to cross examine them by declaring them hostile.
Such a course of action would have serious repercussion on the fairness of the trial.
After going through the evidence of P.Ws. 6 and 7 we see absolutely no reason to distrust their evidence.
So far as P.W. 7 is concerned he is a very high officer being an Executive Engineer at the relevant time and in no way subor dinate to the appellant.
He has admitted in his cross examination by the prosecution that even his confidential reports are not written by the accused.
There is also nothing to show that he was in any way interested in the accused or was his great friend and supporter.
In these circumstances, he had no reason to make a false statement that the accused had visited the village and persuaded the tenants to accept the compensation.
The evidence of the villager P.W. 6 Udayanath Parida who is an independent wit ness also proves that the accused had taken the money to the village and made efforts to persuade the tenants to accept the money.
In fact the evidence of these two witnesses on this point follows as a logical corollary from the decision taken at the meeting held by the Secretary, Works Depart ment, where the appellant was 454 directed to visit the spot and persuade the tenants to accept compensation.
The evidence of P.W. 7 is fully cor roborated by Ext.
B a letter written by P.W. 7 Executive Engineer dated July 6, 1966, a copy of which was sent to the appellant and other officers.
In this letter which is addressed to the Assistant Engineer, Road, Office of the Chief Engineer, Bhubaneswar, P.W. 7 as Executive Engineer had clearly mentioned that he along with the appellant had visited the site at Balichandrapur and persuaded the tenants to accept the money by enhancing the amount to Rs. 200/ per gunth to which the tenants.
agreed but for this the sanction had to be taken.
It was, however, submitted by counsel for the State that this letter appears to have been brought into existence after the inquiry against the accused was launched in order to help him.
This was an official letter and we do not see any reason why such a high officer as the Executive Engineer should have gone to the extent of fabricating an unnecessary letter to help the appellant against whom an inquiry had been ordered.
Even if this letter be excluded from consideration, the other evidence both oral and docu mentary clearly show that the appellant had visited the spot in village Balichandrapur on January 20, 1965 with a view to distribute the compensation money and did make an attempt to persuade the tenants to accept the compensation but they refused to accept the same unless the compensation was raised to Rs. 200/ per gunth.
As against this the prosecution relied merely on the fact that in the tour diary of the accused Ext.
8 of the even date, viz. January 20, 1965, as also in the office report there is no clear mention that the appellant tried to persuade the tenants to accept the money or that he had taken the money with him to the spot.
These documents undoubtedly contain the statement regarding the visit of the appellant to the spot and some other matters.
The question of actual distribution or persuasion of the tenants being a matter of detail does not appear to have been mentioned in those documents.
It would have been necessary to be men tioned in the documents, if the tenants had agreed to accept the money and if the money was actually disbursed to them.
As the proposal suggested by the appellant did not materia lise, there was no occasion for mentioning these facts in those documents.
As we have already indicated, it was not for the accused but for the prosecution to prove, before raising an adverse inference against the accused, that the visit of the appel lant to Balichandrapur was merely a hoax.
On the materials placed before us, not only the prosecution has miserably failed to prove this fact, but the explanation given by the accused appears to be not only probable but proved by the accused, even applying the standard of benefit of doubt.
For these reasons, therefore, we do not agree with the finding of the Courts below that the accused did not take the money with him to Balichandrapur or made any attempt to distribute it to the tenants but has misappropriated and retained it dishonestly.
We might mention here that P.W. 3 Bhakta Charan Mohanti is another Witness who has supported the case of the ac cused.
But as 455 the witness has made inconsistent statements which sometimes go to support the prosecution and sometimes the accused and is further, contradicted by his own tour diary and T.A. Bills, we do not choose any reliance on the evidence of this witness.
The next and the last question that falls for determina tion is as to whether or not the accused after returning from Balichandrapur handed over the money to the Nazir.
It may be mentioned that the appellant had made no secret of the fact that after returning the money to the Nazir he had instructed him not to deposit the same in the treasury but to keep it out of cash for the reason which we have already indicated.
In this connection we have only the word of P.W. 1 the Nazir as against the word of the appellant.
The Nazir also does not appear to be a witness who is completely above suspicion.
Crossexamination of this witness clearly re vealed that the manner in which he had kept the accounts was not at all satisfactory and he was in the habit of allowing huge amounts to remain with him without depositing them in the treasury and that he was also building a house for which he had taken some loans.
Instead of applying a very strict standard to test the testimony of such a witness, the High Court seems to have explained the irregularities committed by the Nazir P.W. 1 thus: "Heavy cash remaining with the Nazir that Ext.
D discloses and the facts of the Nazir having secured housebuilding advance during September 1965 may raise speculations and surmises against the Nazir.
" There are, however, important circumstances to indicate that the explanation given by the appellant is both probable and reasonable.
P.W. 9 who was the Nizarat Officer and who had not been declared hostile (emphasis ours) has clearly stated that the amount was taken by the appellant for dis bursement.
The witness further deposes that in March 1965 he had a discussion with the appellant regarding the amount of Rs. 10,000/ taken by him and the appellant had then told him that the amount could not be disbursed as the tenants did not agree to take the amounts and that he had kept the amount with the Nazir.
In this connection his statement is as follows: "In March, 1965, I had a discussion with the accused regarding the amount of Rs. 10,000/ taken by him and the accused then told me that the amount could not be disbursed as the tenants did not agree to take the amounts and that he had kept the amount with the Nazir.
I did not make any enquiry from the Nazir regarding this as the balance amount as shown in the cash Book was the same in the cash sheet.
The accused had told me that the Nazir had kept the amount of Rs. 10,000/ outside the cash as per his instructions.
" It is, therefore, clear from the admission made by this witness that the case of the accused t,hat he had given money to the Nazir is fully supported by him because he has referred to the statement made to him by the appellant as far back as March 1965 when there was absolutely no dispute, no inquiry and no allegation of misappropriation against the appellant.
Much was made by the learned counsel for the 13 1104SCI/76 456 State out of the fact that the accused had directed the Nazir to keep the amount outside the cash which betrayed the falsity of his explanation.
A careful study of the circum stances in which the accused was placed would show that the accused was very much anxious to disburse the payments to the villagers, he had tried to persuade them to accept the money, but the villagers wanted more compensation and he had already taken steps to move the Government for increasing the amount of compensation to Rs. 200/ per gunth.
In these circumstances, therefore, there may be some justification in his thinking that the money should be readily available to be paid as soon as the villagers decided to accept the same.
It is possible that he may have made an error of judgment or calculation or he was rather too optimistic but this conduct by itself does not lead to the inference of dishonest inten tion to misappropriate the money.
At any rate, in view of the evidence of P.W. 9 the Nizarat Officer that the amount was given to the Nazir by the appellant which fact was disclosed to him as far back as March 1965, it will be difficult to accept the uncorroborated evidence and testimo ny of P.W. 1 the Nazir, that he did not receive the money from the appellant after January 9, 1965.
Further more there were other important circumstances why no reliance should be placed on the evidence of the Nazir P.W. 1.
It would appear from the evidence of the Nazir himself that on September 15, 1965 the cash in the hands of the Nazir was Rs. 11,16,066.57 out of which Rs. 7,36,810.86 were for land acquisition proceedings.
Admit tedly he did not deposit this amount until October 20, 1965.
He has given no explanation as to why he had kept such a huge amount with him without depositing the same in the Treasury.
This was undoubtedly a grave lapse on the part of the Nazir and should have been taken notice by the Courts below.
Exhibit D is the order of the appellant dated Septem ber 27, 1965 by which the Nazir was directed to deposit the amount in the treasury and it was only on October 20, 1965 as would appear from Ext.
D/4 that the Nazir deposited this amount in the treasury.
The Nazir has given no explanation for this delay.
Again it appears that the Nazir was also building a house and he had received advances from the Government which he had not repaid and the possibility that he might have himself misappropriated the money handed over to him by the appellant for the purpose of returning the advances cannot safely be excluded.
It would appear that the Nazir had taken a loan of Rs. 4,500/ on September 8, 1965 and another loan of Rs. 4,500/ was taken by him on Septem ber 27, 1965, total being Rs. 9,000/ , and it is quite possible that the Nazir may have paid these amounts of the loans from out of the money given to him by the appellant.
Finally even if the accused had not given any money to the Nazir P.W. 1 right from January 9, 1965 he should have at least approached him and should have drawn the attention of the appellant to the fact that the money paid to him for the purpose of disbursement had not so far been deposited with him.
No such thing was done by the Nazir.
It was suggested by the prosecution that as the appellant was in charge of the Treasury, the Nazir did not think it proper to interrogate him.
It was, however, not a question of inter rogation.
It was 457 only a question of a subordinate officer pointing out some thing of very great importance to a superior officer which a superior officer would never misunderstand.
In view of these circumstances, therefore, we are not in a position to place implicit reliance on P.W. 1.
There is yet another very important document which has been brought on record by the appellant which is Ext.
A dated December 8, 1965.
This is a statement by P.W. 3 which to a very great extent supports the case of the accused, but as we do not propose to rely on the evidence of P.W. 3, we would exclude this document from consideration.
Another document Ext.
H is a statement of the Accountant Ghansham Das which appears at p. 215 of the Paper Book wherein Mr. Ghansham Das clearly mentions that when he found that Rs. 10,000/ were not traceable, be brought the matter to the notice of the officer in charge and he was told by the Nazir that the amount of Rs. 10,000/ had been left with him by the appellant with instructions not to refund in the treas ury.
TIffs statement clinches the issue so far as the defence case is concerned and fully proves that the explana tion given by the appellant was correct.
This document would also have falsified the evidence of P.W. 1 who has tried to put the entire blame on the shoulders of the appel lant.
Unfortunately, however, the prosecution did not choose to examine Ghansham Das the Accountant who was a very material witness in order to unfold the prosecution narra tive itself, because once a reasonable explanation is given by the appellant that he had entrusted the money to the Nazir on his return from Balichandrapur on January 20, 1965 which is supported by one of the prosecution witnesses, P.W. 9, as referred to above, then it was for the prosecution to have affirmatively disproved the truth of that explanation.
If Ghansham Das would have been examined as a witness for the prosecution, he might have thrown a flood of light on the question.
In his absence, however, Ext.
H cannot be relied upon, because the document is inadmissible.
At any rate, the Court is entitled to draw an inference adverse to the prosecution for not examining Ghansham Das Accountant as a result of which the explanation given by the appellant is not only reasonable but stands unrebutted by the prosecution evidence produced before the Trial Court.
Having regard to these circumstances.
it is not neces sary for us to consider the other documents, like Exts.
F, G and E produced by the appellant because they do not throw much light on the question and the facts contained therein have been seriously disputed by the prosecution.
Similarly we have not referred to the other documents produced by the prosecution which show the entry of the money received by the appellant and 50 on because these facts are not disputed by the appellant at all.
On a consideration of the evidence and the circumstances we are satisfied that the appellant has been able to prove that the explanation given by him was both probable.and reason.able judged by the standard of the preponderance of probabilities This being the position, it was for the prosecution to prove affirmatively m what manner the amount was misappropriated after it had been transferred from the custody of 458 the appellant to the custody of the Nazir.
Such proof is wholly lacking in this case.
As the accused has given a reasonable explanation, the High Court was in error in drawing an adverse inference against him to the effect that he had misappropriated the money.
For these reasons, the appeal is allowed, the judgments of the Courts below are set aside, the convictions and sentences imposed on the appellant are quashed and he is acquitted of the charges framed against him.
P.H.P. Appeal allowed.
| IN-Abs | The appellant ,who was the Additional District Magis trate in overall charge ,of the Nizarat and the Land Acqui sition sections of the Collectorate was charged for criminal misconduct under section 5(2) read with section 5(1)(c) and 5(1 ) (d) of the Prevention of Corruption Act, 1947.
The allegation against the appellant was that he withdrew a sum of Rs. 10,000/ on 9 1 1965 on the ground that he wanted to distribute the said amount amongst the villagers whose land was acquired as the compensation; that in fact the appellant never wanted to distribute the said amount and that he retained,the money with him for about 6 months dishonestly and only after that the money was deposited in the Treasury.
The defence of the appellant was that the Secretary of the Works Department called a meeting in the Secretariat on 25 9 1964 and that the appellant was expressly directed to proceed to the spot and persuade the villagers to accept the compensation money; that it was pursuant to that mandate that the appellant withdrew the money on 9 1 1965; that he could not go to the village in question in that day because one of the officers who was to accompany him was not avail able; that he, therefore, again deposited the money back with the Nazir and collected the money from him again on 20 1 1975; that he went there along with several officials; that the villagers, however, refused to accept the compensa tion.
The appellant was, however, hopeful of getting the compensation increased and to persuade the villagers to accept the increased compensation.
He, therefore, on his return handed over the money to the Nazir, however, asked him not to deposit the same in the Treasury so that cash would be readily available as soon as needed.
Nazir was examined by the prosecution and he denied having received the money as suggested by the appellant.
Secretary of the Works Department was not examined by the prosecution.
The Land Acquisition Officer PW 8 deposed that the Secretary directed the appellant to take action for payment of the compensation money to the villagers and that the appellant should personally persuade the villagers to accept the compensation.
The said witness was, however, declared hostile on the ground that he did not state to the Police that when the appellant and the Executive Engineer visited the village they did not persuade the villagers to receive the compensation amount.
PW 7 the Executive Engi neer deposed that he accompanied the appellant to the vil lage and that the appellant tried to persuade the villagers to receive the compensation but that they refused to accept the same.
This witness was also declared hostile because of certain minor omissions in his statement before the Police.
PW 6, one of the villagers also deposed that the appellant persuaded them to give up possession but the villagers did not agree.
This witness was also declared hostile because he omitted state some facts before the Police.
The Trial Court and the High Court relying on the evi dence of Nazir and certain documents convicted the appellant under section 5(1)(c) and 5(1)(d) read with section 5(2)of the Prevention of Corruption Act, 1947.
12 1104SCI/76 440 Allowing the appeal by Special Leave, HELD: 1.
In a charge of misappropriation once the en trustment of money is proved and although the onus to prove the entrustment is on the prosecution.
if the explanation of the accused is found to be false he must be presumed to have retained the money with himself.
[444 A B] Jaikrishnadas Manohardas Desai and Anr.
vs State of Bombay, 324; followed.
Three principles of criminal jurisprudence which are well settled are as under: (i) that the onus ties affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weak ness or falsity of the defence version while prov ing its case; (ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and (iii) that the onus of the prosecution never shifts.
[444 G H, 445 A] 3.
Under section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused but the said section does not at all indicate the nature and the standard of proof required.
It is suffi cient if the, accused is able to prove his case by the standard of preponderance of probabilities as envisaged by section 5 of the Evidence Act.
[445 A B] Harbhajan Singh vs State of Punjab, ; , 241 and State of U.P. vs Ram Swarup & Anr.
[1975] 1 S.C.R. 409, 416 17, followed.
The accused succeeds if the probability of his version throws doubt on the presecution case.
He need not prove his case to the hilt.
It is sufficient for the defence to give a version which competes in probability with the prosecution version for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the court.
[445 B C] 4.
In a criminal trial it is not at all obligatory on the accused to produce evidence in support of his defence and for the purpose of proving his version he can rely on the admissions made by prosecution witnesses or on the documents filed by the prosecution.
The courts below were not justified in drawing adverse inference against the accused for not producing evidence in support his defence.
The prosecution cannot derive any strength or support from the weakness of the defence case.
[446 E G] 5.
The courts below erred in basing conviction of the appellant on the sole testimony of the Nazir completely ignoring the important admissions made in favour of the accused by other prosecution witnesses, some of whom were declared hostile and some were .not.
[446 H, 447 A] 6.
No explanation is coming forth why the Secretary, Works Department Who was a Government servant, has not been examined.
It was a part of the prosecution case that in the said meeting the Secretary did not direct the appellant to go to the village for making payment.
The prosecution ought to have examined the Accountant who was a material witness in order to unfold the prosecution narrative itself.
The court drew adverse inference for his non examination.
[447 D:E] 7.
Section 154 of the Evidence Act confers.
a discretion on the court to permit a witness to be cross examined by a party calling him.
The section confers a judicial discretion and must be exercised judiciously and properly in the inter est of justice.
The court will not nor.m.
ally allow a party to cross examine his own witness and declare the same hostile unless the court is Satisfied that the statement of the witness exhibits an element of hostility.
or that he has resiled from a material statement which he made before an earlier authority.
[448 G H, 449 A] 441 Dahyabhai Chhaganbhai Thakker vs State of Gujarat, ; , 368.
69. 70 followed.
Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross examine his own witnesses cannot be allowed.
The contingency _of permitting the cross examina tion of the witness by the party calling him is an extra ordinary phenomenon and permission should be given only in special cases.
[449 G H, 450 C] 8.
On the facts the court found that the Trial Court wrongly exercised its discretion in permitting the prosecu tion to cross examine its own witnesses.
[451 F] 9.
Merely because a witness is declared hostile it does not make him unreliable so as to exclude his evidence from consideration altogether.
[450 E F] Bhagwn Singh vs State of Haryana, ; , 391 92 followed.
The court found that the defence version was ren dered probable by the testimony of witnesses as well as documents.
[457 A D] 11.
The Court found that the Nazir was not a reliable witness and that the courts below ought not to have acted on his sole testimony.
[455 C]
|
: Criminal Appeal No. 149 of 1976.
Appeal by Special Leave from the Judgment and Order dated 19 7 1975 of the Punjab & Haryana High Court in Crimi nal Appeal No. 1205 of 1974 and Murder Reference No. 60 of 1974.
902 Frank Anthony, Hatbans Singh and Harjender Singh for Appellants Nos. 1, 2 and 4.
A.N. Mulla, and Harbans Singh for Appellants Nos. 3 and 5.
R.L. Kohli for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
After having gone through the entire evidence on the record and the judgment of the courts below and after hearing counsel for the parties and for the rea sons that we have already given, we are fully satisfied and convinced .that the prosecution case against the appellants has been proved beyond reasonable doubt and that the appel lants were rightly convicted by the Sessions Judge and the High Court.
This, however, does not dispose of the matter completely, because it appears that the commitment inquiry was held under the Code of Criminal Procedure, 1973 and the Sessions Judge after delivering the judgment of conviction has not given any opportunity to the accused of being heard on the question of sentence separately.
In Santa Singh vs State of Punjab(1) this Court has taken the that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accused on the question of sentence and give him an opportunity to ,lead evidence which may also be allowed to be rebutted by the prosecution.
This procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh cannot be sustained although the convictions recorded against them are confirmed by us and will not be reopened under any circumstance whatsoever.
Counsel for the State has drawn our attention to the fact that in some cases the accused have raised the question that once the case is remitted to the Sessions Judge, then the accused is entitled to claim a de novo trial on the question of conviction also.
In this connection, reliance was placed on Pyare Lal vs State of Punjab(2).
In the first place, this case was based on an interpretation of sections 251 to 259 of the Code of Criminal Procedure, 1898, and the reason why this Court held that the proceedings by a succes sor Judge cannot be started from the stage left out by his predecessor was that a Judge who had heard the whole of the evidence before had the advantage of watching the demea nour of the witnesses which would be lost if the successor Judge was to proceed from the stage left by his predecessor.
It is true that under section 326 of the Code of Criminal Proce *Only pages 33 to 36 of the Judgment are reported as .per directions of the Court.
(1) [1976] s.c.c. 190.
(1) 903 dure, 1973, there is a discretion given to the successor Magistrate to act on the evidence already recorded and not to hold a de novo trial and no such provision is made in case of a trial by the Sessions Judge or a Special Judge.
The ratio of Pyare Lal 's case (supra), however, is not applicable to the present case.
Once the judge who hears the evidence delivers a judgment of conviction, one part of the trial comes to an end.
The second part of the trial is restricted only to the question of sentence and so far as that is concerned, when a case is remitted by us to the Sessions Court for giving a hearing on the question of sentence under section 235(2) of the Code of Criminal Procedure, 1973, there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before his predecessor and must conduct a de novo trial would not be violated.
In these circumstances, therefore, the ratio of Pyare Lal 's case mentioned above cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the Trial Court for hearing the case only on the question of sentence.
So far as the case of Devinder Singh and Maha Singh are concerned as they have already been given sentences of life imprisonment and this is the minimum sentence that could be passed under section 302 I.P.C. it is not necessary to remit their cases to the Sessions Judge.
The convictions and sentences of these two accused are, therefore, confirmed and their appeals are dismissed.
As regards the appeals by the three other appellants, namely, Narpal Singh, Jagmohan Singh and Gurdev Singh, we confirm their convictions which would not be reopened under any circumstances, but set aside the sentence of death passed on them and remit their cases to the Trial Court for passing sentences on them afresh after hearing the accused in the light of the observations made by us and to this extent only the appeals of the three appellants are allowed so far as their sen tences are concerned.
S.R. Appeals partly allowed.
| IN-Abs | Appellants Nirpal Singh, Gurdev Singh and Jagmohan Singh were convicted under section 302 J.P.C. and sentenced to death while the appellants Devinder Singh, and Maha Singh were convicted under section 302 but sentenced to imprisonment for life by the Sessions Judge.
The High Court upheld the convictions as also the sentences while accepting the refer ence under section 366 made by the Sessions Judge and dismissing the appeals by the accused.
On appeal by special leave, the appellants contended inter alia, that the sentence passed against them was bad as the Sessions Judge, after delivering the judgment of conviction has not given any opportunity to them of being heard on the question of sentence separately.
Dismissing the appeals of Devinder Singh and Maha Singh and partly allowing the appeals of the other three appel lants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their cases to the trial Court for passing sentences on them afresh under section 235(2) of the Criminal Procedure Code.
The Court HELD: (1) Though the commitment inquiry was held under the Code of Criminal Procedure, 1973, since the procedure under section 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the appellants, Narpal Singh, Gurdev Singh and Jagmohan Singh in the instant case cannot be sustained.
Since Devinder Singh and Maha Singh have already been given sentences of life imprisonment which is the minimum sentence that could be passed under section 302, remetting their cases to the Sessions Judge was not neces sary.
[902 F G, 903 E] Santa Singh vs State of Punjab [1977] 1 S.C.R. 229, reiter ated.
(2) When a case is remitted by this Court to the Ses sions Court for giving a hearing on the question of sentence under section 235(2) of the Code of Criminal Procedure 1973.
there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before his predecessor and must conduct de novo trial would not be violated.
The ratio of Pyare Lal 's case cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the trial Court for hearing the case only on the question of sentence.
[903 A D] Pyare Lal vs State of Punjab , distin guished.
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Appeal No. 696 of 1971.
Appeal from the Judgment and Decree dated the 20 4 1970 of the Allahabad High Court in First Appeal No.15 of 1966.
A.K. Sen, S.T. Desai and P.P. Juneja for the Appellant.
S.V.Gupte and M.V. Goswami for Respondents.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is filed by the plaintiff against the judgment of the Allahabad High Court on a cer tificate dismissing the suit for specific performance of a contract of sale dated 24th March, 1964.
878 The facts of the case are briefly as follows : The suit property was owned by one Shri Aditya Narain and the plaintiff/appellant became a tenant of the suit property under Aditya Narain in the year 1942.
On 2nd January, 1961 the respondents, the two defendants in the suit purchased the suit property for Rs. 19,000 from Aditya Narain and the appellant became tenant of the respondents.
Soon after the purchase of the property by the respondents they sought to evict the appellant by filing a petition under section 3 of the U.P. Rent and Eviction Act.
The appellant resisted and the Rent Control and Eviction Officer rejected the petition holding that the respondents ' require ment of the premises was not genuine.
On the mediation of Sri Chand Doneria the parties entered into the suit agree ment on 24th March, 1964.
In pursuance of the agreement the appellant handed over Rs. 4,000 as earnest money to the respondents.
The terms of the agreement will be set out in due course but suffice it at this stage to state that it provided that the appellant should get the sale deed execut ed within two months i.e. upto 24th May, 1964 and in case the appellant did not get the sale registered within two months the earnest money of Rs. 4,000 shall stand forfeited.
From the 5th May, 1964 letters and telegrams were exchanged between the parties but the sale deed was not executed on or before the 24th or on the 25th May as the parties had agreed.
The appellant filed a suit, Civil Suit No. 122 of 1964, in the court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respond ents failed to execute the sale deed as agreed and therefore committed breach of the contract.
The plaintiff prayed for a decree of specific performance of the contract of sale dated 24th March, 1964 against the respondents and for direction to the respondents to execute the sale deed of the property and get it registered and in default the sale deed may be executed by the court according to law.
The respond ents filed a written statement denying the various allega tions made in the plaint and pleaded that the appellant did not perform his part of the contract within the stipulated time and the contract thereafter did not subsist and there fore the suit was misconceived.
On these pleadings the trial court framed five issues of which it is relevant to note only two which are issues 1 and 3.
They are as under : Issue No. 3.
"Whether the contract did not subsist on the date the to perform his part of the contract as alleged in the plaint ?" Issue No. 3.
"Whether the contract did not subsist on the.
date the suit was field ? The trial court found that it was proved beyond a shadow of any doubt that the appellant was always ready and willing to perform his pan of the contract and the respondents were not at all anxious to execute the sale deed in his favour and that the respondents were guilty of breach of contract.
On issue No. 3 it found that even though the time for getting the sale deed executed expired after the 24th May, 1964 the 879 appellant would not be disentitled to the relief of specific performance of the contract for sale on the.
ground of delay as the respondents themselves were responsible for it.
The respondents preferred an appeal to the Allahabad High Court and a Bench of the court on the arguments set out two points for determination in the appeal.
They are: ' (1) whether the appellant or the respondents committed the breach of con tract entered into between the parties on 24th March, 1964; and (2) whether the time was of the essence of the contract.
If not, its effect.
The High :Court found that the respond ents were always ready and willing to perform their part of the contract in terms of the agreement dated 24th March, 1964 and it was the appellant who committed the breach of the contract by not getting the sale deed executed by 25th May, 1964 in terms of the agreement dated 24th March, 1964.
The High Court on the issue as to whether time was of the essence of the contract held that in the circumstances of the ease and in view of the conduct of the parties of serv ing on each other notices, counter notices and telegrams they expressed their intention to treat time as of the essence of the contract and that once the time is held to be the essence of the.
contract the appellant 's suit for spe cific performance must fail.
The High Court also held that even if time is not held to be of the essence of the con tract it was of the opinion that the appellant is not enti tled to a decree for specific performance as he had failed to prove that he was ready to perform his part of the con tract.
The appellant applied for a certificate and the High Court by its order dated 22nd February, 1971 granted the certificate under clause (a) of Article 133(1) of the Con stitution.
In this appeal before us the learned counsel for the appellant submitted that the High Court was in error in holding that the time was of the essence of the contract and that the High Court 's finding that the appellant was not ready and willing to perform his part of the contract while the respondents were always ready to perform their part of the contract is opposed to oral and documentary evidence and the probabilities of the case.
The first question that arises for consideration is whether time is of the essence of the contract.
In order to.
determine this question it is necessary to set out the suit agreement which is marked as exhibit 23 at page 137 of the papers.
It runs as follows : "Dear Pandit Govind Prasad Ji Chaturvedi, Sir, A litigation has been going on between you and us with respect to the Kothi of Bima Nagar, of which you are a tenant on behalf of us.
The said dispute has been decided today through the mediation of Sri Shri Chand Done riya, on the terms and conditions given below which shall be.
fully binding on you as well as us.
That you are agreeable to purchase our Kothi of which you are a tenant and a transaction between you and 880 us has been finally settled today; at Rs. 24,000 (rupees twenty four thousand), with respect to the said Kothi.
2.That you are paying us, at present, a sum of Rs. 4000 in cash, as earnest money, the receipt where,of has been acknowledged by us by affixing a revenue stamp at the foot of this letter, and that the remaining sum of Rs. 20,000 shall be paid by you to us at the time of registration.
That the expenses relating registra tion and cost of stamps etc.
shall be borne by you and we shall be entitled to get a sum of Rs. 24,000 (rupees twenty four thousand) net.
That you must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case you do not get the sale deed registered within two months then the earnest money amounting to rupees four thousand, paid by you shall stand forfeited without serving any notice.
But in cane we in some way evade the execution of the sale deed, then you will be entitled to compel us to execute.
the sale deed legally and we shall be liable to pay the costs and damages incurred by you.
That we shall furnish you a guarantee of good title in respect of the property which is free and immune from all sorts of disputes.
That you shall be liable to pay the rent till the date you get the sale deed registered and you shall clear off all amount due to us before registration.
That both the parties shall withdraw their respective cases or get the same dis missed and shall bear their own costs.
That neither party shall take any fresh legal steps during this period of two months by which any hindrance may be caused in execution of our sale deed.
In confirmation of the agreement which has been made between you and me through this letter, you too have affixed your signature on this letter.
Your s, Signature of Hari Dutt Shastri 24 3 1964 Signature of Bhavbhooti Sharma 24 3 1964 X X X X X The relevant clause is clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case the appellant did not get the sale deed registered within 881 two months then the earnest money amounting to Rs. 4000 paid by the appellant shall stand forfeited without serving any notice.
The clause further provides that in case the re spondents in some way evade the execution of the sale deed then the appellant will be entitled to compel them to exe cute the sale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appel lant.
It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract.
When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract.
(vide Gomathinayagam, Pillai & Ors.
vs Palaniswami Nadar)(1).
It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract.
The intention to treat time as the essence of the contract may be evidenced by circumstances which are suffi ciently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.
Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract ' and the fact that the terms of the agreement do not unmiStakably state that the time was under stood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract.
In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement while the respondents committed breach of the contract.
The respond ents did not set up the plea that the time was of the es sence of the contract.
In paragraph 32 of the Written Statement all that was stated was that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not.
subsist and the suit is consequently misconceived.
The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract.
Neither is there any discussion in the judgment of the trial court regarding this point.
The trial court after considering the evidence came to the conclusion that appellant was always ready and willing to perform his part of the contract while the respondents were not in the circumstances therefore the High Court was in error setting as one of the points for determination wheth er time was of the essence of the contract.
The High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the course of a litigation between the appellant and the re spondents and in pursuance of the agreement the parties were directed, to withdraw their cases and were directed further not to take fresh legal steps during the period of two.
months within which the sale deed was to be executed.
On taking (1) ; , 233. 882 into, account the circumstances of the case and. the con duct of the parties of serving on each other notices, coun ter notices and telegrams the High Court inferred an inten tion on the part of the parties to treat the time as of essence, of the contract.
We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the terms of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract.
In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25th May.
On the question whether the time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to: raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondents in the trial court.
Apart from the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract.
The decision on this issue would be sufficient to allow this appeal and to grant the appellant the decree for spe cific performance which he has prayed for but as on the question whether the appellant was always ready and willing to perform his part of the contract the courts below have given contrary finding and the High Court ,has recorded a finding that the appellant was not ready and willing to.
perform his part of the contract while the respondents were always ready and willing with which finding we are unable to agree we will discuss the evidence at some length.
The background to the suit agreement dated 24th March, 1964 is that there was litigation between the parties.
The appellant was a tenant under the previous owner, Aditya Narain, from 1942.
The respondents purchased the property in 1961 and in 1963 filed.
a petition to evict the appel lant.
That petition was resisted and the Rent Control and Eviction Officer dismissed the petition of the respondents.
While the matters stood thus the compromise was entered into.
The appellant having been a tenant of the" premises from 1942 would have been naturally anxious to, continue in possession while the respondents who. had purchased the property in 1961 were anxious to.
get into possession.
As they wanted to settle their dispute the respondents agreed to.
sell the property for which the appellant was willing and.
which they had purchased on 2 1 1961 for Rs. 19,000 to the appellant for Rs. 24,000.
Of this Rs. 24,000 the tenant paid Rs. 4000 in cash as earnest money.
This would indicate that the tenant was keen on purchasing the property in which he was living since 1942.
The agreement provided that the appellant must get the sale deed executed within two, months after 24th March, 1964 and, if the appellant failed to get the sale deed registered within two months the earnest money of Rs. 4000 shall stand forfeited.
Normally one would not expect the appellant to.
forfeit his earnest money.
As the period stipulated was 24th May, 1964 the appellant started prepara 883 tions for getting the sale deed executed.
According to the appellant he wrote exhibit 24 on 5th.
May, 1964 calling upon the respondents to come to Agra on the 18th May, 1964 for exe cuting and making registration in pursuance of the contract and to complete the sale deed.
According to the appellant no reply was received to this letter and he sent a notice through his advocate, exhibit 35, on 13th May, 1964 in which he stated that he was ready to pay the balance of the consider ation of Rs. 24,000 along with the entire arrears of rent and requested the respondents to.
execute the sale deed by 18th May and latest by 24th May, 1964.
The lawyer 's notice ,,iso.
referred to the letter of the 5th May. Another lawyer 's notice.
was sent, exhibit 36, on 20th May, 1964 by registered post complaining that the respondents had not replied to his letter dated 5th May, 1964 and to his law yer 's notice dated 13th May, 1964 and called upon them to.
get the sale deed registered by 25th May, 1964 as 24th May is Sunday.
Along with the lawyer 's notice a draft sale deed was endorsed.
These three letters were followed by tele grams which were sent by the appellant to both the respond ents on 20th May, On the 22nd.
May the appel lant attended the office of the Sub Registrar, Agra and presented an application to the Registrar to the effect that he was at the Registrar 's office between the hours 3 and 4 p.m. on that day.
On 22nd May, 1964 the appellant received a reply from the respondents acknowledging the registered notices given on 13th and 20th May by the appellant 's coun sel.
According to the reply by the advocate on behalf of the respondents the two letters of the 13th and 20th May were received by the respondents only on the 22nil May, 1964.
In this reply of 22nd May, 1964 the advocate of the respondents denied the allegation in the notice dated 20th May, 1964 of the.
appellant that the draft sale deed has been put in the cover.
It also complained that the draft sale deed has not been sent.
The respondents stated that they were ready to execute the sale deed but the appellant was wanting postponement for reasons best known to him.
It may be noted that the two complaints that are made in the advocate 's notice on behalf of the respondents.
do not bear scrutiny.
The notice complains that the draft sale deed has not been enclosed.
It has been proved that in one of the notices sent to the son and which was opened in the court the draft sale deed was found enclosed.
Further without the cooperation of the respondents it is difficult to prepare a draft sale deed as the date.of sale by Aditya Narain in favour of the respondents would not have been available to.
the appellant.
In fact Mr. Gupte the learned counsel for the respondents submitted that the letter stating that a copy of the draft sale deed was enclosed cannot be true as the appellant could not have got particulars about the earlier document of title of the respondents.
The respond ents ' plea that the draft sale deed was not received does not show that they were willing or cooperating in the execu tion of the sale deed.
We are unable to, give any weight to the contention of the learned counsel that their plea that they sent a draft sale deed cannot be true as they could not have been in possession of particulars about the title deed of the respondents.
In fact no question was asked of the appellant when he was in the box as to how they got information as to the sale deed, by Aditya Narain in favour of the respondents.
The letter of the 884 5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyer 's notices on behalf of the appellant, exhibit P 35 and P 36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale deed.
There can be no doubt that they had basis for suspecting that the respond ents were not willing to perform their part of the contract.
A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub Registrar 's office on 25th May, 1964.
It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub Registrar to prove their presence.
Though both the parties would assert their presence it is common ground that they did not meet each other.
It is difficult for us to.
comprehend as to how if both the parties were present at the Sub Registrar 's office they did not meet each other.
It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation.
But on the facts the conclusion is irresistible that it was the appel lant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the prem ises for over 25 years.
It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.
On a consideration of the letters and telegrams that passed between the parties the trial court held that it was proved beyond a shadow of doubt that the appellant was always ready and willing to perform his part of the contract and that the respondents were not anxious to execute the sale deed.
The trial court accepted the evidence on behalf of the appellant that the appellant was possessed of suffi cient funds and in fact he withdrew a sum of Rs. 20,500 from the Central Bank of India Ltd. As the appellant had paid the respondents Rs. 4000 he had to pay them only Rs. 20,000 towards the balance of sale consideration.
The arrears of Rs. 956 due towards rent and a sum of Rs. 2000 was to be spent on getting the sale deed executed.
In all a sum of Rs. 22,956 was required.
He had withdrawn Rs. 20,500 from the Central Bank of India Ltd. The trial court accepted the evidence adduced by the appellant.
The trial court also accepted the evidence that the appellant had Rs. 5,000 with him at home and about Rs. 30,000 in deposit with a firm.
This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath. P.W.2, Manira of M/s. Chhitar Mal Ram Dayal and the trial court accepted the evidence and found that the appellant had sufficient funds for getting the sale deed executed.
This conclusion which we consider is irresistible was not accepted by the High Court.
The High Court while ac cepting the evidence that the appellant had a sum of Rs.4,500 in deposit in the bank upto 20th May, 1964 and subsequently on 21st May, 1964 he deposited a sum of Rs.14,000 and again a sum of Rs. 2,500 on 22nd May, 885 1964 and that thus the appellant had Rs. 21,000 in bank on 22nd May, 1964 found the case of the appellant unworthy of credit.
The High Court further observed that after the appellant had raised his deposit in the bank to Rs. 21,000 he did not deposit any further amount and therefore the amount fell short of the needed amount by Rs. 2,000.
Con scious of the weakness in his story, the appellant asserted in his statement that he had Rs. 7,000 or 8,000 with him at his house.
We are at a loss to follow the reasoning of the High Court.
The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him.
The Court does not suspect that he did not have Rs. 20,500.
The shortage at the most is of Rs. 2,000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable.
Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30,000 belonging to the appellant was lying in deposit with them.
We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed.
In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed.
In fact the respondents set up.
a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time.
This evidence cannot be accepted taking into account the relationship between the parties.
We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility.
The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.
In the result we allow the appeal on the ground that the respondents have failed to establish that the time is of the essence.
of the contract and that the appellant has succeed ed in establishing that he was always ready and willing to perform his part of the contract and, the respondents evaded their responsibility.
The judgment of the High Court is set aside and that of the trial court is restored, The. appeal is allowed with costs.
The appellant will deposit Rs.20,000/and the sale documents in the court of the Civil Judge, Agra within six weeks from today and the parties will take further direction in the matter from the Civil Judge, Agra.
M. P,,.
Appeal allowed.
| IN-Abs | The appellants entered into an agreement with the re spondents on March 24, 1964, for purchasing the suit proper ty belonging to the latter.
The terms of the agreement provided that the appellant would get the sale deed executed upto May 24, 1964, and in case of his failure to do so, the earnest money paid by him to the respondent would stand forfeited.
The sale deed was not executed within the pre scribed time, and the appellant filed a suit against the respondents for breach of contract.
The trial court granted him the relief of specific performance of the contract.
The respondents succeeded in an appeal before the High Court on the ground that time was of the essence of the contract and therefore the relief of ' specific performance could not be granted, and also that the appellant had not been ready to perform his part of the contract.
Allowing the appeal by certificate, the Court, HELD: (1) Fixation of the period within which the con tract has to be performed does not make the stipulation as to time, the essence of the contract.
When a contract re lates to sale of immovable property it will normally be presumed that the time is not the essence of the contract.
The intention to treat time as the essence may be evidenced by circumstances which are sufficiently strong to displace the normal presumption.
[881 A C] Gomathinarayana Pillai & Ors.
vs Palaniswamy Nadar ; , 233, applied.
(2) In the absence of specific pleadings or issues raised before the trial court, the question whether the time is of the essence of the contract or not.
cannot be raised before the High Court in appeal.
[882 B C] (3) A careful consideration of the evidence and the correspondence between the parties shows that the appellant was always ready to perform his part of the contract and that the respondents were evading their responsibilities.
[885F G]
|
n No. 43 of 1976.
S.C. Agarwal for the Petitioners.
912 L.N. Sinha, Sol Genl.
and B. Datta for Respondents.
The Judgment of the Court was delivered by BEG, C.J.
The petitioners before us are employees of the Forest Research Institute and Colleges Dehra Dun in the posts designated as Computers.
Their grievance is that they should be treated as Research Assistants Grade II and given the same scale of pay and other conditions of service as are applicable to Research Assistants Grade II.
The respondents, Union of India and the President of the Forest Research Institute deny that the petitioners are entitled to be treated as Research Assistants Grade II.
The petitioners rely upon certain alleged admissions on behalf of the oppo site parties, on certain classifications of Computers in the past, prior to the recommendations the Third Pay Commission 1973 as well as on the last mentioned report of the Central Pay Commission.
Furthermore, learned counsel has invited Union of India and another whereupon a Writ Petition by Computers, they were shown as having been given identical scales of pay with the Research Assistants Grade II.
This decision however, does not deal with any controversy as to the correct classification of computers in comparison with Research Assistants Grade II.
All we need say is that this case deals with the position under the Report of 1959 of ' the Second Pay Commission which has no bearing on the position which follows from the Report of the Third Pay Commission of 1973.
Moreover, it is evident that even at that time Research Assistants Grade II and Computer were shown as separate classes even though their pay scales and the revised pay scales were shown as identical.
Thus the claim of the petitioners is that this Court should not only include the Computers amongst Research Assistants Grade II, which is not borne out even from the Report of the Second Pay Commission, but go further and equate their pays, so that.
even though they belong to different classes, their scales of pay may be identical.
We are afraid this is a matter which lay entirely within the sphere of the func tions of the Pay Commission.
This Court cannot satisfactori ly decide such disputed questions on the salender material on which the learned counsel for the petitioner relies in order to displace what appears to us to be, prima facie, the effect of the Report of the Third Pay Commission of 1973.
This report shows that Computers not only belong to a separate class of their own but received less pay than Research Assistants of Grade II.
Learned Counsel for the petitioner 's tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, which deals with "Scientific Services" (specifi cally mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and Colleges are mentioned in paragraphs 58 onwards.
It seems to us to be erroneous to attempt to place Computers in Chapter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Corn 913 puters at all.
Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with the Forest Research Institute in Chapter XXI do not mention Computers.
It does not follow from this that Computers necessarily belong to the class into which the petitioners want to get in without showing what the criteria and func tions of persons entitled to be treated as Research Assist ants of Grade II are as compared with the Computers who, prima facie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions.
Indeed, everyone working in a research institute could, in some way, be said to be assisting in research.
We think that these are questions entirely unfit for determination upon a peti tion for a Writ for the enforcement of fundamental rights.
It requires: firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifica tions for each class.
The Pay Commission had done this elaborately.
The learned Solicitor General has invited our attention to the case of Union of India vs G.R. Prabhavalkar & Ors.
reported in ; , where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226.
We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercis ing its writ issuing jurisdiction.
The learned counsel for the petitioners has tried to take us at some length into the material on which he as sails the view taken by the opposite parties.
We are unable to agree that, on the material placed before us, we can accept the petitioners ' interpretation of facts to which our attention was drawn.
We are unable to consider other mate rial also to which our attention was attempted to be drawn because, on the basis of the materials shown to us, we are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed before us.
Finally, learned counsel for the petitioners pleaded that we may permit him to raise this matter before an Admin istrative or Service Tribunal if and when one is constitut ed.
It is not necessary for us to give him any permission to do that.
We may however observe that the petitioners are at liberty to pursue other remedies, including those which may be available to them if any such Tribunal is set up in future.
We want to make it clear that the question whether there is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can, be laid down.
Moreover, a dis crimination, which involves the invocation of Article 14, is not necessary covered by Article 16.
We do not propose to discuss here the differences between Articles 14 and 16, because we think that, even the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately.
The validity of that classification cannot, 914 we think, be displaced by the kind of evidence relied upon on behalf of the petitioners.
And, until that classifica tion is shown to be unjustified, no question of violating Article 16 can arise.
We, therefore, leave the petitioners to other means of redress if they still feel aggrieved.
The result is that we dismiss the Writ Petition, but make no order as to costs.
S.R. Petition dis missed.
| IN-Abs | In the 1959 Second Pay Commission Report, the pay scales and the revised pay scales of the Computers were shown as identical with that of the Research Assistants Grade II, even though the 'two posts were shown as separate classes.
The Third Pay Commission Report, however, showed that the Computers not only belonged to a separate class of their own but received less pay than Research Assistants ' Grade II.
The petitioners assailed this view under article 32 of the Constitution as violative of Articles 14 and 16 of the Constitution on the ground that they had a Fundamental Right to be equated both in status as well as in Day to that of Research Assistants, Grade II.
Dismissing the petition the Court.
HELD: (1) Equation of posts and equation of pay are matters entirely within the sphere of the function of the Pay Commission.
These are questions entirely unfit for determination upon a petition for a writ for the enforcement of Fundamental Rights.
It requires, firstly, formula tion of correct criteria for each classification.
and, secondly.
the application of these criteria to facts relat ing to the functions and the qualifications for each class.
The Pay Commission had done this in the instant case elabo rately,.
B C] (2) The Court, under article 32.
neither has wider powers nor can do it with greater facility than a High Court can not, when exercising its writ issuing jurisdiction.
This Court had already laid down that equation of posts is not a duty which the High Court was competent to carry out in proceedings under article 226.
[913 D] Union of India vs G.R. Prabhavalkar & Co. ; , referred (3) The question, whether there is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can be laid down.
A discrimination which involves the invocation of article 14 is not necessarily covered by article 16.
In the instant case, even the material relied upon by the petition ers shows the Computers and Research Assistants Grade II are classified separately, and, therefore, the validity of that classification cannot be displaced by the kind of evidence relied on.
Until that classification is shown to be unjus tified, no question of violating Article 16 can arise.
[913 G H, 914 A] Purshottam Lal and Ors.
vs Union of India & Anr.
held inapplicable.
|
Appeals No. 632 to 646 of 1976.
(From the Judgment and Order dated the 22/23/26/27th of April, 1976 of the Bombay High Court in S.C.A. Nos.
997, 2128, 2773, 2077, 2065, 2045, 1172, 1193, 1195, 1196, 1199, 1200, 1210/ 75 and 2050 & 2071 of 1976) and CIVIL APPEALS NOS.
655 & 1286 of 1976 (From the Judgment and Order dated the 14 5 1976, 23rd, 24th, 27th April, 1976 of the Bombay High Court in S.C.A. No. 2985 of 1976 and Misc.
Petition 4 of 1976) and WRIT PETITIONS NOS.
98, 102 107, 110 113 & 115 120 1976 Under article 32 of the Constitution of India) B. Sen, (in CA.
632) Y.S. Chitale, (in CA.
633) Sachin Chowdhary, (in CA.
634) F.S. Nariman and R.N. Bennerjee, Adv.
(in CA.
637) H.P. Shah, (in CAs.
632 638) A.J. Rana, (in CA.
635) P.H. Parekh & Miss Manju Jetly, with them, for the appellants in CAs.
632 637 Vallabhadas Mohta, Sardar Bahadur Saharya & Vishnu Bahadur Saharya, for the appellants in CAs.
638 644 & 644.
J.L. Nain, A.J. Rana, Janendra Lal, B.R. Agarwala and Gagras & Co., with him for the appellants in CAs 645 & 646 except for appellant No. 52 in CA.
646 F.S. Nariman, R.N. Banerjee, J.B. Dadachanji " K.J. John with him for the appellant No. 62 in 646/76 Madhukar Soochak, K. Rajendra Chowdhary, K.A. Shah and (Mrs.) Veena Devi Khanna, Advocates for the Appellant in CA.
1286/76 S.K. Dholakia, V.J. Kankaria & R.C. Bhatia, for the petitioners in all the Writ Petitions.
Niren De, Attorney Genl.
(only in CAs.
632, 638 and W.P. No. 98/76 1.
W. Adik, Adv.
of Maharashtra, M.N. Shroff for the Respondents in the appeals and Writ Petitions M.P. Chandrakantral Urs and N. Nettar, for the interven er in CA.
632/76 (State of Karnataka) 832 K. Parasaran, Adv.
Tamil Nadu.
A. V. Rangam, V. Sathiadev and (Miss) A. Subhashini, in the for the inter vener in CA.
632 (State of Tamil Nadu, K. Rajendra Chowdhary, for the interveners/Applicants A Ratnaabhapati and Jayalakshimi & Co. M/s. Jeshtmal, K.R. Chowdhary, Mrs. Veena Devi Khanna, for the intervener/applicant N. Dhanraj.
B.A. Desai, S.C. Agarwala and V.J. Francis, for Re spondents 4 & 5 in CA.
1286/76.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The distance between societal reali ties and constitutional dilettantism often makes for the dillemma of statutory validity and the arguments addressed in the present batch of certificated appeals and writ petitions evidence this forensic quandary.
Likewise, the proximity between rural cum clum economics and sociaL relief legislation makes for veering away from verbal obsessions in legal construction.
A constitution is the documentation of the rounding faiths of a nation and the fundamental direc tions for their fulfilment.
So much so, an organic, not pedantic, approach to interpretation, must guide the judicial process.
The healing art of harmonious construc tion, not the tempting game of hair splitting, promotes the rhythm of the rule of law.
These prologuic observations made.
we proceed to deal with the common subject matter of the appeals and the writ petitions.
A bunch of counsel, led by Shri Nariman and seconded by Shri B. Sen, have lashed out against the vires of the Maharashtra Debt Relief Act, 1976 (for short, the Debt Act).
The former has focused on the fatal flaw in the Act based on article 301 of the Constitution and the latter has concentrated his fire on the incompetency of the State Legislature to enact the Debt Act.
A plurality of submis sions by a procession of lawyers has followed, although the principal points have been comprehensively covered by Shri Nariman and Shri B. Sen.
To encore is not to augment, and yet, some counsel, who had not much to supplement, claimed the right to.
be heard and exercised it ad libiem, essaying what had already been forcefully urged and forget ting that a fine, fresh presentation of a case is apt to be staled by a second version of it and pejorated by a third repetition.
While in constitutional issues of great moment this Court is reluctant to ratio oral submission it is important, by comity of the Bench and the Bar, to conserve judicial time in the name of public justice so that internal allocations avoiding over lapping may be organised among many counsel who may appear in several appeals, substantial ly dealing with the same points.
A happy husbandry of advo cacy is helpful for judge and lawyer alike and to streamline forensic business is the joint responsibility of both the limbs of the institution of justice.
Back to the beginning.
article 301 of the Constitution man dates 833 "301.
Freedom of trade commerce and inter course Subject to the other provisions of this Part, trade, commerce and intercourse through out the territory of India shall be free.
" We may also read the cognate provision viz., article 304 (b): "304 (b).
Restrictions on trade, commerce and among States.
Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law X X X X (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
" The unmincing submission of Shri Nariman is that money ending is very much a trade, that the Debt Act deals drasti cally with moneylenders in defiance of article 301 and, since the manacles on moneylenders and money lending are unreason ably harsh and callously indiscriminate, the 'freedom" which belongs constitutionally to professional money lenders is breached by the 'statutory liquidation of their loans.
Nor can the invalidatory consequence of this violation be obvi ated by article 304(b).
This latter provision salvages stat utes which contravene freedom of trade, commerce and inter course only if they possess the virtues of reasonableness and public interest.
The injustice of wiping out the debts of marginal farmers, rural artisans, rural labour ers and workers as provided in the scheme of the Act was anathematised by Shri Nariman as an unwarrantedly unrea sonable annihilation of the trade and 'its capital.
We will deal with this contention presently but we may merely mention for later discussion another short, lethal objection to a part of the law, put forward by counsel.
He stated that there was legislative incompetency for the State Legislature because it had forfeited the power to legislate on money lending where gold loans were involved, since Parliament had occupied the field under Entry 52 of List I by enacting the Gold Control Act, 1968, and had thereby elbowed out the State Legislature from that field.
Considerable eclectic study of English, Australian and American cases was displayed in the course of arguments, reverberating in Indian precedents dealing with Part XIII of the Constitution.
Of course, we will refer to them with pertinent brevity, although we must administer to our selves the caveat that the same words used in constitutional enactments of various nations may bear different connota tions 834 and when Courts are called upon to interpret them they must acclimatize the expressions to the particular conditions prevailing in the country concerned.
Different lands and life styles, different value systems and economic solu tions, different social milieus and thought ways, different subject matters and human categories these vital variables influence statutory projects and interpretations, although lexicographic aids and understandings in alien jurisdictions may also be looked into for light, but not beyond that.
The constitutional guarantee of the commercial mobility and unity of the country in article 301 is sought to be made the major sanctuary of 'money lenders ' whose 'freedom ' to lend and thereby end the lendee is, by legislative judgment, hand cuffed.
Before unravelling the provisions of the Debt Act, we must first found ourselves on the quintessentials of article 301 and the juristic and economic basics implied in that provision.
We are not construing a petrified legal parchment but reading the luscent lines of a human text with a national mission.
We must never forget that the life of the suprema lex is nourished by the social setting, that juridical abstractions and theoretical conceptions may be fascinating forensics but jejune jurisprudence, if the raw Indian realities are slurred over.
We are expounding the Constitution of a nation whose people hunger for a full life for each, and therefore, a perception of the signature of social justice writ on it is imperative. 'Nothing is more certain in modern society ', declared the American Supreme Court at mid century, 'than the principle that there are not absolutes '.
Legal Einsteinism guides the Court, not doctrinal absolutes, as we will presently discuss.
Since article 301 has loomed large in the debate at the bar, it is pertinent to ask what is its object and design.
For, if the impugned legislation does violate article 301, it must perish unless rescued by article 304(b).
This Court, in Atiabari Tea Co. C), tracing the roots of article 301, observed: "Let us first recall the political and constitutional background of Part X/II.
It is a matter of common knowledge that, before the Constitution was adopted, nearly two thirds of the territory of India was subject to British Rule and was then known as British India, while the remaining part of the territory of India was governed by Indian Princes and it consisted of several Indian States.
A large number of these States claimed sovereign rights within the limitations imposed by the paramount power in that behalf, as they pur ported to exercise their legislative power of imposing taxes in respect of trade and com merce which inevitably led to the erection of customs barriers between themselves and the rest of India.
In the matter of such barriers British India was governed by the provisions of section 297 of the Constitution Act, 1935.
To the provisions of this section we will have occasion later to (1) ; , 843. 835 refer during the course of this judgment.
Thus, prior to 1950 the flow of trade and commerce was impeded at several points which constituted the boundaries of Indian States.
After India attained political freedom in 1947 and before the Constitution was adopted the historical process of the merger and the integration of the several Indian States with the rest of the country was speedily accom plished with the result that when the Consti tution was first passed the territories of India consisted of Part A States which broadly stated represented the Provinces in British India, and Part B States which were made up of Indian States.
This merger or integra tion of Indian States with the Union of India was preceded by the merger and consolidation of some of the States inter se between them selves.
It is with the knowledge of the trade barriers which had been raised by the Indian States in exercise of their legislative powers that the Constitution makers framed the Articles in Part XIII.
"The main object of article 301 obviously was to allow the free flow of the stream of trade, commerce and inter course throughout the territory of India.
" It is fair to realise that article 301 springs from Indian history and hope.
We may recall the political and consti tutional background of Part XIII the divided days of Brit ish rule, the united aspirations of Independent India, the parochial pressures and regional pulls leading inevitably to the erection of fiscal barriers and hampering of economic oneness.
The integration of India was not merely a histor ical process but a political, social and economic necessity.
Gajendragadkar J., in Atiabari Tea Co. (supra) pointed out: "In drafting the relevant Articles of Part XIII the makers of the Constitution were fully conscious that economic unity was absolutely essential for the stablity and progress of the federal polity which had been adopted by the Constitution for the governance of the coun try.
Political freedom which had been won, and political unity which had been accom plished by the Constitution, had to be sustained and strengthened by the bond of economic unity." (p. 843) "Free movement and exchange of goods throughout the territory of India is essential for the economy of the nation and for sustain ing and improving living standards of the country.
The provision contained in article 301 guaranteeing the freedom of trade, commerce and intercourse is not a declaration of a mere platitude, or the expression of a pious hope of a declaratory character; it is not also a mere statement of a directive principle of State policy; it embodies and enshrines a principle of paramount importance that the economic unity of the country will provide the main sustaining force for the stability and progress of the political and cultural unity of the country." (p. 844) 836 Such being the perspective, the judicial sights must be set high ' while reading Article 301.
Social solidarity is a human reality, not mere constitutional piety, and a non exploitative economic order outlined in article 38, is the bedrock of a contented and united society.
Social disorder is the bete noire of commerce and trade.
All this is non controversial ground but the learned Attorney General con tests the very applicability of article 301 to money lenders and moneylending visa vis the humble beneficiaries of the statute, viz., the marginal farmers, rural artisans, rural labourers, workers and small farmers.
It is a cruel legal joke to legitimate as trade this age old bleeding business of agrestic India whereby the little peasant.
the landless tiller, the bonded labourer, the pavement tenant and the slum dweller have been born and buried during the Raj and the Republic in chill penury.
Is trade in human bondage to be dignified legally, betraying the proletarian generation? For whom do the constitutional bells of the socialist Repub lic toll? Therefore, argues the Attorney General, it is juristic blasphemy to call 'unscrupulous moneylending ' a rural spectre which stalks Maharashtra a trade at all.
These chronic operations, socially obnoxious and economical ly inhuman, cannot be recognised as licit and wear the armour of article 301, for this preliminary reason.
Not all systematic economic activity is trade.
Sinister, socially shocking ones, are not.
Shri Nariman has counter asserted, backed by a profusion of precedents, that money lending in the modern complexities of business life is a lubricant for the wheels of commerce and has been treated as trade.
It is the life blood of business.
It needs no argument to say that the topics of legislation, listed in the Seventh Schedule, must receive a large and liberal, yet realistic, interpretation.
So understood, the expression 'trade ' in its wide import, covers not merely 'buying and selling of goods ' but trading facilities like advances, overdrafts, mercantile documents, trading intelligence, telegraphic and telephonic communica tions, banking and insurance and many other sophisticated operations connected with and essential for commerce and intercourse.
Even travel facilities in certain circum stances have a nexus with trade and commerce and are part of them.
Learned counsel referred to Ibrahim(1) wherein this Court has referred to the corresponding provisions in the Australian Constitution and imparted a comprehensive meaning to 'trade '.
American and Australian case law, Halsbury and the Judicial Committee, were read with special emphasis on the amplitude of the expression 'trade '.
An inventory of Indian statutes wherein 'money lending ' as a business was mentioned and licensed, was also brought to our notice.
Indeed, this wealth of legal literature may well be held to make out that money lending, banking, insurance and other financial transactions, commercial credit and mercantile advances may, conceptually, be characterised as 'busi ness '.
Mercantile credit, money lending, pawn broking and advances on pledges are business.
Otherwise, the commerce of our country will grind to a halt.
Can we con ceive of trade without credit, or commerce without mercan tile documents, discounting, lending and (1) 837 negotiable paper? To deny to monetary dealings the status of trade is to push India into the medieval age: Broadly viewed, money lending amongst the commercial community is integral to trade and is trade.
So far we go with Shri Nariman and others who have urged the same point with allomorphic modifications.
The learned Attorney General 's stance is radical and rooted in the rural bondage to break which is the mission of this legislation.
If accepted, it will mean that money lending, in the limited statutory setting and projected on the Indian rural urban screen visa vis the exploited people below the poverty line, cannot be regarded as 'trade '.
It is apt to be reminded of the then famous epigram of Frederick W. Maitland: "A woman can never be outlawed, for a woman is never in law.
" Money lending is it in law at all? No trade, no article 301, and so the baptismal certificate that article 301 insists upon from the economic activity that seeks its 'free ' blessings is that it is 'trade, commerce or intercourse '.
Thus the critical question is as to whether money lending and the class of money lenders who have been preying upon the proletarian and near proletar ian segments of Indian society for generations may be legal ly legitimated as 'traders ' or 'businessmen '.
This is not an abstract legal question turning on semantic exercises but a living economic question of incurable indebtedness.
Blood, sweat and tears animate amelioratory law which exiles literal interpretation.
The heartbeats of the Debt Act, according to the State counsel, cannot be felt without humanistic 'insight by first ostracising, in the name of social order, the die hard, death grip practices which have defied legislative policing in the past and have kept, in chronic servitude, vast numbers of the Indian agrarian community and working class.
But if, as urged by the oppo sition, the law flatly flouts article 301, it fails.
The rule of law, for functional success, must run close to the rule of life.
Therefore, constitutional assays must be on the touchstone of societal factors.
So we cannot embark upon a study of the working of stock exchanges, the dependence of industry and business on credit and key loans, the role of pledges in financing commercial activity, when the challenge is to an economic legislation dealing with the lowliest and the lost, the destitude and the desperate, far from big business and industry, trade and commerce and high finance and sophisticated credit.
We must zero in on the social group the Debt Act seeks to save, the pattern of lending the statute strikes at, the heaviness of the blow and on whom it falls, and the raison detre of the measure.
Does this specific species of deleterious economic activity, masked as moneylending 'trade ', qualify for the .freedom that article 301 confers on trade? The specific social malady and the legislative therapeutics suggested guide the court.
Here again, relativity, not absolutes, rules jurisprudence.
Of course, while interpreting the relevant Articles in Part XIII and pronouncing upon the concept of 'trade ', we must have regard to the general scheme of the Constitution and should not truncate the 838 scope and amplitude of economic unity, free movement, pro tection from discrimination, unhampered financial arrange ments and the like.
Undoubtedly, the freedom, while it is wide, is not absolute.
Our Constitution, framed by those who were sensitive to the massive poverty of the country and determined to extirpate the social and economic backwardness of the masses, could not have envisioned a development where some will be 'free ' to keep many 'unfree ' [See Articles 38 and 39 (c)].
That is why, to make assurance doubly sure, a further provision is made in article 304(b) by adding a rider to the freedom of commerce subjecting it to the requirement of reasonableness and imposition of restrictions in public interest.
Das, J., in Automobile Transport (1) struck the true note, if we may say so with great respect, that while the text of the Articles is a vital consideration in inter preting them, 'we must ' at the same time, remember that we are dealing with the Constitution of a country and the interconnection of the different parts of the Constitution forming part of an integrated whole '.
The learned Judge asks: 'Even textually, we must ascertain the true meaning of the word 'free ' occurring in article 301 From what burdens or restrictions is the freedom assured? This is a question of vital importance even in the matter of construction '.
Later, in the ' judgment, Das J., drives home the point that 'the conception of freedom of trade in a community regulated by law pre supposes some degree of restriction, that freedom must necessarily be delimited by considerations of social orderliness ' (underscoring supplied).
Even the Australian Case (1916 22 CLR 556, 573) conceptulizes freedom as nothing extra legem, lest freedom should be confounded with anarchy. 'We are the slaves of the law ', said Cicero, 'that we may be free '.
Sir Samuel Griffith, C.J. in Duncan vs State of Queensland (22 CLR.556, 573), said: "But the word 'free ' does not mean extra legem any more than freedom means anarchy.
We boast of being an absolutely free peo ple, but that does not mean that we are not subject to.
" The conscience of the commerce clause in India, as elsewhere, is the promotion of an orderly society.
social justice is the core of the constitutional order.
Two inter connected, but different facets of freedom of trade and commerce fall for serious consideration in the light of the above discussion.
Is anti social, usurious, unscrupulous money lending to economically weaker sec tions, eligible for legal recognition as 'trade ' within the meaning of article 30,1 ? Secondly, assuming that even such activities have title to be termed 'trade ' are the provi sions of the Debt Act reasonable, regulatory and in the public interest ? The learned Attorney General argued for the proposition that the narrow, noxious category of money lending with which we are concerned is so oppressive and back breaking so far as the poorest sections of the community are concerned that a sense of social justice forbids the court to legiti mate it as 'trade '.
Not all systematic economic activity, even if not formally banned by the law, can be christened 'trade ', he submits, and relies on Chamorbaughwala to.
reinforce this reason (1) [1963] (1) S.C.R. 491.
(2) ; 839 ing.
In that case the impugned Act was said to offend against article 301.
The Court, therefore, considered whether gambling was not 'trade, commerce or intercourse ' and took a sky view of the numerous decisions in various countries bearing on this branch of sociological jurisprudence.
One of the Australian cases dealing with lotteries (Mansell vs Beck) elicited the observation that lotteries, not conducted under the authority of government, were validly suppressed as pernicious.
Taylor, J. made the trenchant observation: " . whilst asserting the width of the field in which section 92 may operate it is necessary to observe that not every transac tion which employs the forms of trade and commerce will, as trade and commerce, invoke its protection.
The sale of stolen goods, when the transaction is juristically analy sed, is no different from the sale of any other goods but can it be doubted that the Parliament of any State may prohibit the sale of stolen goods without infringing section 92 of the ,Constitution ? The only feature which distinguishes such a transaction from trade and commerce as generally understood is to be found in the subject of the transaction; there is no difference in the means adopted for carrying it out.
Yet it may be said that in essence such a transaction constitutes no part of trade and commerce as that expression is generally understood.
Numerous examples of other transactions may be given, such as the sale of a forged passport, or, the sale of counterfeit money, which provoke the same comment and, although legislation prohibiting such transactions may, possibly, be thought to be legally justifiable pursuant to what has, on occasion, been referred to as a 'police power ', I prefer to think that the subjects of such transactions are not, on any view, the subjects of trade and commerce as that expres sion is used in section 92 and that the protection afforded by that section has nothing to do with such transactions even though they may require for their consummation, the employment of instruments, whereby inter State trade and commerce is commonly carried on." (RMDC Case, pp. 915 916) In the United States of America, operators of gambling sought the protection of the commerce clause.
But the .Court upheld the power of the Congress to regulate and control the same.
Likewise, the Pure Food Act which prohib ited the importation of adulterated food was upheld.
The prohibition of transportation of women for immoral purposes from one State to another or to a foreign land was held valid.
Gambling itself was held in great disfavour by the Supreme Court which roundly stated that 'there is no consti tutional right to gamble '.
Das, C. 1., after making a survey of judicial thought, here and abroad, opined that freedom was unfree when society was exposed to grave risk or held in ransom by the operation of the impugned 840 activities.
The contrary argument that all economic activi ties were entitled to freedom as 'trade ' subject to reasona ble restrictions which the Legislature might impose, was dealt with by the learned Chief Justice in a sharp and forceful presentation: "On this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be pro tected as fundamental rights until they are restricted .by law.
Thus there will be a guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, of housebreaking, of selling obscene pictures, of trafficking in women and so on until the law curbs or stops such activities.
This appears to us to be completely unrealis tic and incongruous.
We have no doubt that there are certain activities which can under no circumstance be regarded as trade or busi ness or commerce although the usual forms and instruments are employed therein.
To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words.
Learned counsel has to concede that there can be no 'trade ' or 'business ' in crime but submits that this principle should not be extended . " We have no hesitation, in our hearts and our heads, to hold that every systematic, profit oriented activity, however sinister, suppressive or socially diabolic, cannot, ipso facto, exalt itself into a trade.
Incorporation of Directive Principles of State Policy casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and politi cal shall inform all the institutions of the national life, is not idle print but command to action.
We can never forget, except at our peril, that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women, are not abused, that exploitation, moral and material, shall be extradited.
In short, State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people, necessarily imply that economic.
activities, attired as trade or business or commerce, can be de recog nized as trade or business.
At this point, the legal cul ture and the public morals of a nation may merge, economic justice and taboo of traumatic.
trade may meet and jurispru dence may frown upon dark and deadly dealings.
The consti tutional refusal to consecrate exploitation as 'trade ' in a socialist Republic like ours argues itself.
The next question then is whether rural and allied money lending is so abominable as to be 'bastardized ' by the law for which the Attorney General pleaded.
Shri Nariman controverted the vulgar generalisation that all money lend ers are vampirish as unveracious imagery.
He argued that many of them were not only licenced but had complied with the conditions of their licences in doing honest lending business and supplying rural credit to those in need.
He 841 pointed out that institutional credit had hardly penetrated rural India and the non institutionalised money lenders had done economic service to a primitive peasantry although several of them had abused.
the situation of helplessness in which the weaker denizens of backward regions found them selves.
His contention was that there was no justification for castigating money lending as non trade not was there valid material to condemn wholesale all those who had served as the financial backbone of agricultural communities in the past.
Reasonable restrictions to obviate abuse were permis sible legislation, but obdurate refusal to treat what in fact was trade as trade was injustice born of hostile hunches.
He had separate arguments on the unreasonableness of the provisions of the Debt Act which we will deal with later.
The bone of contention between the parties, there fore, is as to whether money lenders as a class and money lending as a systematic traditional activity in the special context of the weakest sections of agrarian humanity and the working class, can be called 'trade '.
The legal principles have already been explained by us which we may sum up brief ly by stating that, generally speaking, the systematic business of lending is trade, as understood in the commer cial world and in ordinary monetary dealings.
Moreover, trade cannot be confined to the movement of goods but may extend to transactions linked with merchandise or the flow of goods, the promotion of buying and selling, advances, borrowings, discounting bills and mercantile documents, banking and other forms of supply of funds.
It is possible, however, to project a different view point and this is precisely what the learned Attorney Gener al has done.
Free flow, understood in Article 301, implies some movement from place to place.
Freedom of trade, subject to reasonable restrictions, is guaranteed under article 19.
The special advantage derived by the Trade by virtue of article 301 consists in the interdict on impeding, directly and immediately, movement of goods or money transactions con nected with movement of merchandize or commercial inter course.
In short, the Attorney General considers the element of movement as essential to Pat.
301 in contrast with article 19.
We see the force of the submission but are inclined to the view that dealings of Banks and similar institutions having some nexus with trade, actual or poten tial, may itself be trade or intercourse.
All modern com mercial credit and financial dealings, covered by the various rulings cited at the bar, come under this heading.
Even so, the village based, age old, feudal pattern of money lending to those below the subsistence level, to the village artisan, the bonded labourer, the .marginal tiller and the broken farmer, who borrows and repays in perpetual labour, hereditary service, periodical delivery of grain and unvouchered usurious interest, is a countryside incubus.
This is not an isolated evil but a ubiquitous agrarian bondage.
Such debts ever swell, never shrink.
such captive debtors never become quits, such countryside creditors never get off the backs of the victims.
The worker and peasant of India whose lot is to be 'born to Endless Night ' is symbol ized by Jawaharlal Nehru, an architect of the Constitution, as the Man with the Hoe: 842 "Bowed by the weight of centuries he leans Upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world.
X X X X "Through this dread shape the suffering ages look, Time 's tragedy is in that aching stoop, Through this dread shape humanity betrayed, Plundered, profaned and disinherited, Cries protest to the powers that made the world, A protest that is also prophecy.
" All this painful poetry and prose is borne out by the record in the case and by studies by economists.
A recent issue of the Eastern Economist reads: "The problem of rural indebtedness is as old as Indian agriculture itself.
It is the net result of usurious money lending, improvident spending and adversities in agri culture.
The heavy burden of debt not only continues to cripple our rural economy, but it also grows in alarming magnitude.
Several attempts have been made by expert bodies from time to time for a realistic estimation of rural indebtedness.
Nevertheless, the fact remains that the rural indebtedness in physi cal terms is mounting up and the nightmare of indebtedness continues to haunt the Indian peasants.
Quite recently the report published by the All India Rural Debt and Investment Survey relating to 1971 72 also depicts an increasing trend in rural indebtedness.
It has been estimated that the aggregate borrowings of all rural households on June 30, 1971 was Rs.3921 crores, while the average per rural household being Rs.503/ .
Fortythree per cent of the rural families had reported borrowings .
If the problem of rural indebtedness is to be kept within meaningful limits and man ageable proportions, following legislative and non legislative measures should be taken: 1.
At present the institutional agen cies provide only 50 per cent of the total rural credit needs.
Increased efforts by all the institutional agencies are called for especially in the context of the declaration of moratorium on rural debt which may affect the flow of non institutional finance.
There are about 75 million marginal farmers with less than one hectare of opera tional holding, 20 million artisans and 47 million agricultural labourers in rural sec tor, who constitute the rural poor.
Liquida tion of existing debt is an essential step in order to give relief to these weaker sec tions.
The Debt Relief Acts passed in differ ent states should be effectively implemented.
843 3.
Institutionalisation of rural savings and inculcation of saving habits amongst rural folk is a positive step to mitigate this problem.
Massive propaganda and education on economising expenditure may discourage ex travagant spending by certain categories of rural .households.
If necessary, certain legislative measures such as abolishing dowry system and imposing austere marriages may also be resorted to. 4.
Attempts must also be made to bring the money lenders under some form of monetary regulation and control on the lines suggested by the Banking Commission.
Though at present legislations exist in several states for the regulation of money lenders they lack enforce ment which render the ineffective." (emphasis, added) ( 'Current Trends in Rural Indebtedness by M. Gopalan & V. Kulandaiswamy Eastern Economist d/April 23, 1976 Vol.
66, No. 17, pp. 826 829) Professor Panikar, referring to the nightmare of debt has this to say: "Perhaps, it may be that the need for borrowing is taken for granted.
But the undisguised fear that the oppressive burden of debt on Indian farmers is the main hindrance to progress is unanimous.
There are many writers who depict indebtedness of Indian farmers as an unmixed evil.
Thus, Alak Ghosh quotes with approbation on the French proverb that 'Credit supports the farmer as the hang man 's rope the hanged '." (Rural Savings in India P. G.K. Panikar Somaiya Publications Pvt. Ltd., Bombay, 1970) Dr. Bhattacharya, in his book 'Social Security Measures in India ' (Metropolitan Book Co., Delhi, 1970) dwells on the problem of agri cultural indebtedness: "A sample survey conducted by Second Agricultural Commission revealed the grim condition of rural indebtedness.
The Survey observes, 'Of the estimated total number of 16.3 million agricultural labour households in the country, 63.9 per cent were indebted and debt per indebted household was Rs.138 per annum '.
This is indeed a danger signal par ticularly for a country whose entire economy is dependent on the prosperity .of rural population.
The same source sums up the total volume of rural indebtedness in the following words, 'Thus the total volume of debt of the indebted agricultural labour households may be estimated at about Rs.143 crores in 1956 57.
A similar estimate was made on the basis of the results of the 1950 51 Enquiry (i.e., the First Agricultural Commission Report) and it worked out to about Rs.80 crores, Even though the estimated number of agriculture labour households in 3 206SCI/77 844 1956 57 was lower by 1.6 million, as,com pared with 1950 51, the total debt of indebted agriculture labour.household had considerably increased in 1956 57." (pp.
1.64 165) Dhires Bhattacharya in his 'Concise History of the Indian Economy ' (Progressive Publishers, Calcutta, 1972) refers to the Indian rural drama and the role of the anti hero played by the_ money lender: "Money lending thus became an easy method of earning an income and subsequently of acquiring valuable title to land in the event of default by the debtor.
Throughout the nineteenth century ownership rights in land were being lost by the ryot and acquired by moneyed interests, both rural and urban." "The situation created by such extensive loss of perry by the cultivating classes exploded into riots against money lenders and usurpers of land in several parts of the country.
The agricultural riots in Poona and Ahmednagar in Bombay Presidency in 1875 are most widely known because they were followed by the appointment of a Commission of Inquiry." (pp. 77 78) The author recounts the series of legislation made during the British Indian period and concludes: "These laws also failed in their purpose because no restrictions had been imposed on the transfer of land between members of the agricultural classes.
Money lenders could, therefore, operate through a benamidar (fictitious agent) belonging to an agricultur al class and acquire land almost as easily as before.
At the same time the bigger agricul turists had no difficulty in swallowing up the smaller ones by giving loans at exorbitant rates of interest to the latter.
(p. 78) The economic literature, official and other, on agri cultural and working class indebtedness is escalating and disturbing.
Indeed, the 'money lender ' is an oppressive component of the scheme.
A.N. Agrawal, in his book 'Indian Economy ' (Vikas Publishing House) indicates that 'money lenders charge heavy interest ranging.
from 15% 50% and often more.
In addition to .high interest, these people take advantage of illiteracy of agriculturists and manipulate the accounts regarding loans to their advantage.
The conditions of loan repayment are so designed that the debtor is forced to sell his produce to the mahajan at low prices and purchase goods for consumption and production at high prices.
In many other ways take advantage of the poverty and the helplessness of farmers and exploit them .
Unable to pay high interest and the principal, 845 the farmers even lose their land or live from generation to generation under heavy debt.
Unless viable alternatives are made available, the mahajan will continue to hold, an impor tant, harmful and enervating place m this sphere '.
The harmful consequences of indebtedness are economic and affect efficient farming, social in that the 'relations between the loan givers and loan receivers take on the form of relations of hatred, poisoning the social life '.
The money lenders, few in number, belong to poor class.
There are often dis putes between the two classes which get sharpened. on the exploitation of the poor.
In fact the social groups get split into two broad classes.
The exploiting class and the exploited class.
Apart from losing land and leading to tension in the villages their evil effect is rampant. the heavily indebted farmers lose even their human existence.
They not only render bonded labour to money lenders, their very self respect and even respect of their women folk do not remain safe.
They are forced to live the life of slaves.
Of course, laws have now been enacted which protect these debtors.
But these laws are difficult to be enforced either because farmers are illiterate, or they do not have enough resources to go to the courts, or the money lenders prove too clever for them.
" Dr. C.B. Mamoria in his book 'Agricultural Problems of India ' (Kitab Mahal) has stressed that rural indebtedness has long been one of the most pressing problems of India.
"Rural people have been under heavy indebtedness of the average money lenders and sahukars.
The burden of this debt has been passed on from generation to generation inasmuch as the principal and interest went on increasing for most of them.
According to Wold.
The country has been in the grip of Mahajans.
It is the bond of debt that has shackled agricul ture.
" Very convincing and compelling, with special reference to Maharashtra, is the Report of a high powered Committee appointed by the Government of Maharashtra to make recommen dations for the relief of rural and urban indebtedness.
The study is at once revealing and 'grim.
Rural artisans, industrial workers, marginal farmers and indigent agricul turists have been steeped in debt despite statutory meas ures and ineffective credit institutions.
These human areas have been the happy hunting ground of money lenders.
The Bombay Moneylenders ' Act, according to the Committee, hardly helped bail out the weaker sections.
Despite the Act, licensed and unlicensed moneylenders pursued their exploita tive profession.
The Debt .Act implements some of the recommendations of this Committee although positive institu tional finance to save the sunken segments from the grip of the moneylenders remains to go into action.
Even enforce ment of the Bombay Moneylenders ' Act appears to be lukewarm according to the Committee.
Be that as it may, the economic distress, for which moneylenders dealing with the weaker sections are mainly responsible, is clearly brought out in the Report.
Nor is there anything in this Report or in any other literary material on rural economics (particularly relating to artisans, workers and collapsing cultivators) to substantiate the dichotomy of scrupulous and unscrupulous moneylenders, vehemently pressed before us by Shri 846 Nariman.
The former species are more a pious wish and the latter tribe a spectre on the increase, if statistical economic studies are to be trusted.
The gravestone on the old 'moneylender ' system and the cornerstone of the new liberated order .are thus the programme for the Administra tion.
The Debt Act is part of the package.
There was much argument about the reasonableness of the restriction on moneylenders, not the general category as such but the cruel species the Legislature had to confront and we have at great length gone into the gruesome background of economic illequities, since the test of reasonableness is not to be applied in vacuo but in the context of life 's realities.
Patanjali Sastri C.J., in State of Madras
V.G. Rao(1) observed: "It is important in this context to bear in mind that the test of reasonableness wher ever prescribed, should be applied_ to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevail ing conditions at the time, should all enter into the judicial verdict.
" Money lending and trade financing are indubitably 'trade ' in the broad rubric, but our concern here is blinkered by a specific pattern of tragic operations with no heroes but only anti heroes and victims.
Many Conferences, Commissions and resultant enactments before and after Independence provided but marginal protec tion for the rural debtor.
Even licensing was evaded by the money lender successfully and concilliation machinery proved a mirage.
Statutes made of sterner stuff became the desideratum.
In the counter affidavit filed on behalf of the State of Maharashtra, a lurid presentation of the lender borrower scenario is found.
The deponent states: ". that it was a common sight around the secretariat, Government Offices, Textile Mills, factories and elsewhere in Bombay to find moneylenders waiting at the gates to catch workers to collect their dues.
" There is also reference to a number of Official Committees which have examined the question of indebtedness in the urban and rural areas and have recommended measures of relief.
The affidavit goes on to state: "I say that in Maharashtra and its predecessors the State of Bombay there have been several legislations on this subject including the Deccan Agricultural Debt Relief Act, 1879, Bombay Agricultural Debtors Relief Act, 1939, 847 and in the Vidarbha areas of the State, the Madhya Pradesh Postponement of Execution of Decree Act, 1956.
I say that there is a well established history of dealing with indebted ness in the State by means of legislation.
I say that .the
Reserve Bank carried out an inquiry in the matter of indebtedness in 1971 which is referred to as All India Debt and Investment Survey during 1971 72.
The Reserve Bank of India survey established that the total debt liabilities in the rural areas in Maharashtra was Rs.358 crores in 1971 72.
A preliminary analysis made by the Reserve Bank of India also indicated weaker sections of the community thereby showing the extent of the burden of debt on the weaker sections of the community.
I crave leave to refer to and rely upon the statistical tables prepared by the Reserve Bank of India in this connection when produced.
I say that the extent of indebted ness may be much more than what is indicated by the statistical survey of the Reserve Bank of India.
The licensed moneylenders alone in the State are known by themselves to have disbursed during 1972 73 a sum of about 74.37 crores and the information gathered by the respondents indicates that the known indebted ness in the city of Bombay alone would be of the order of Rs.45 crores.
I say that in addition to the licensed moneylenders unli censed money lending is also carried on in the State. " The Statement of Objects and Reasons of the Maharashtra Ordinance VII of 1975 which was the precursor to the impugned Act contains the following statement: "The problem of urban and rural in debtedness has assumed enormous proportions in recent times.
The noninstitutional sources of credit, namely, unscrupulous.
money lenders, have been charging usurious rates of interest, indulging in malpractices and taking undue advantage of the weak position of the economically weaker sections of the people both in rural and urban areas.
The Ordinance, therefore, seeks to give relief to certain sections of people from indebtedness.
" Even the 'whereas ' vocabulary of the draftsman of the Act refers to the need for immediate action to provide for relief from indebtedness to certain farmers, rural artisans, rural labourers and workers in the State of Maharashtra.
The judgment under appeal also makes reference to the continual legislative effort made in the past to save the agricultural community from chronic indebtedness.
The learned Judges.
observe: "Indeed, agricultural indebtedness has always been the bane of Indian economy ever since the beginning of the twentieth cen tury.
Any elementary book on.
Indian econom ics will disclose that even the British Government had 848 thought it necessary to make an enquiry into agricultural indebtedness.
That was one of the terms of Royal Commission on Agriculture, and from time to time enquiry committees were set up including the Banking Enquiry Committee to go into the question of agricultural indebtedness with a view to find out how alternative sources of credit to be made available to the agriculturists could be brought into existence.
In a sense, the phrase 'agricultural indebtedness ' has earned a connotation over the passage of years to indicate the unhappy position in which an Indian agriculturist has always found ever since the phenomenal fall of prices in 1929.
It has become proverbial that an Indian agriculturist is born in debt, he lives in debt and he dies in debt." Eminent economists and their studies have been adverted to by the High Court and reliance has been placed on a Report of a Committee which went into the question of relief from rural and urban indebtedness which shows the dismal economic situation of the rural farmer and the labourer.
It is not merely the problem of agricultural ' and kindred indebtedness, but the menacing proportions of the moneylend ers ' activities that have ' attracted the attention of the Committee.
Giving facts and figures, which are alarming, bearing on the indebtedness amongst industrial workers and small holders, the Committee has highlighted the exploita tive role of money lenders and the high proportion/on of non institutional borrowings.
We have made this extensive tour of the economic scene, with special reference to agricultural indebtedness and the lot of industrial labour, only to present vividly how the predatory money lender has had a stranglehold on rural and urban proletarians, by resort to methods which are scan dalizingly calamitous and unshakably resistant to legisla tive policing.
The learned Attorney General contends that the courts must have a sense of history .and sociology informing their judicial perspective and then it is easy to_ understand the syndrome of village and working class indebt edness.
There are commercial lendings, banking loans and institutional finances.
There are friendly loans, and occasional accommodations.
There are liabilities arising from various circumstances between citizen and citizen and citizen and State.
But the pernicious species of money lending stubbornly flourishing in the rural and industrial areas of our country, with the weakest sections as their bled white clientele, cannot be regarded as 'trade" because of the painful pages of economic history to which this country is witness.
The life of the law is not neat noesis but actual expe rience.
The perspective of Poverty Jurisprudence is radi cally different from the canons and values of traditional Anglo Indian jurisprudence.
The subject matter of the impugned legislation is indebtedness, the beneficiaries are petty farmers, manual workers and allied categories steeped in debt and bonded to the money lending tribe.
So, in passing on its constitutionality, the principles of Develop mental Jurisprudence ' must come into play.
849 We agree with Shri Nariman that the intimate unity of national life sought to be sustained by Part XIII cannot be invidiously breached against the money lenders provided they qualify to be traders.
If a law cuts into the flesh of the commercial unity and integrity of the country, ' unreasona bly or against public interest, Part XIII electrocutes it.
A meaningful, yet minimal analysis of the Debt Act, read in the light of the times and circumstances which compelled its enactment, will bring out the human ;setting of the statute.
The bulk of the beneficiaries are rural indi gents and the rest urban workers.
These are weaker sections for whom constitutional concern is shown because institu tional credit instrumentalities have ignored them.
Moneylending may be ancilliary to commercial activity and benignant in its effects, but money lending may also be ghastly when it facilitates no flow of trade, no movement of commerce, no promotion of intercourse, no servicing of business, but merely stagnates rural economy, strangulates the borrowing community and turns malignant in its reper cussions.
The former may surely be trade, but the latter the law may well say is not trade.
In this view, we are more inclined to the view that this narrow, deleteri ous pattern of moneylending cannot be classed as 'trade. ' No other question then arises, since the petitioners and appellants cannot summon article 301 to their service.
Assuming that all money lending is 'trade ', can it be contended that this relief measure is invulnerable to attack on the ground that the texture of the restrictions is rea sonable and regulatory ? Article 304(b) relaxes in favour of the State the prohi bition in article 301 provided the law imposes only such re strictions as are reasonable and in public interest.
Shri Nariman 's submission is that the Debt Act is too draconic to fair, processually and substantively, and so it cannot be rescued by article 304(b).
With persuasive pressure he invited us to look at the horror of procrustean infliction of equal hostility by the legislature in dealing with the asuric Shylock and the dharmic lender.
The law which brands the good and the bad alike and indiscriminately discharges all debts, just and unjust, lacks sense, con science and reasonableness.
Secondly 'How is it fair, ' asks Shri Nariman, 'that, if the object of the legislation is to save the victims of rural indebtendness and working class burdens that credit institutions should be exempted while non institutionalised lenders should be picked out for hostile treatment ? ' There is no merit in the plea.
Liabilities due to government to local authorities are not tainted with exploi tation of the debtor.
Likewise, debts due to banking compa nies do not ordinarily suffer from overreaching, unscrupu lousness or harsh treatment.
Moreover, financial insti tutions have, until recently, treated the village and urban worker and petty farmer as untouchables and so do not figure in the picture.
To exempt the categories above referred to is reasonable.
Many debt relief laws adopt this classifica tion and those familiar with the lowest layers of economic life will agree that this is as it should be.
Money lenders of the type we are concerned with in the Debt Act are, 850 by and large, heartless in their lending tactics, and the borrowers are anaemic mostly members of the Scheduled Castes and Scheduled Tribes, nomadic groups, artisans, workers and the like.
Section 13 of the Debt Act is illu minating, regarding the handicapped humans the statute is concerned with.
We quote that provision: "13.
Aggreement for labour in lieu of debt to become void.
Any custom or tradition or any agreement (whether made before or after the appointed day), whereunder or by virtue of which a debtor or any member of his family is required to work as labourer or otherwise for the creditor shall be void and of no effect and shall never be enforceable in any civil court.
" Maybe, some stray money lenders may be good souls and to stigmatize the lovely and unlovely is simplistic betise.
But the legislature.
cannot easily make meticulous excep tions and 'has to proceed on broad categorisations, not singular individualisations.
So viewed, pragmatics overrule punctilious and unconscionable money lenders fall into a defined group.
Nor have the creditors placed material before the Court to contradict the presumption which must be made in favour of the legislative judgment.
After all, the law makers, representatives of the people, are expected to know the socio economic Conditions and customers.
Since nice distinctions to suit every kindly creditor is beyond the law making process, we have to uphold the grouping as reasonable and the restrictions as justified in the circum stances of the case.
In this branch, there are no finali ties.
The observations of the Privy Council in the Austra lian Bank Nationalisation Case(1) are apposite: "Yet about this, as about every other proposition in this field, a reservation must be made.
For their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified.
Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some state of social devel opment it might be maintained that prohibition with a view to State.
monopoly was the only practical and reasonable manner or regulation, and that inter State trade, commerce and intercourse thus prohibited and thus monopo lized remained absolutely free.
" We do not downright denounce all money lenders but the lawmakers have, based on socio economic facts, picked out a special class of money lenders whom they describe as unscru pulous.
(1) Commonwealth of Australia vs Bank of New South Wales , 311.
851 Every cause claims its martyr and if the law, necessi tated by practical considerations, makes generalisations which hurt a few, it cannot be helped by the Court.
Other wise, the enforcement of the Debt Relief Act will turn into an enquiry into scrupulous and unscrupulous creditors, frustrating, through endless litigation, the instant relief to the indebted which is the promise of the legislature.
In this perspective, we see no constitutional flaw in the Act on the score that the sheep have not been divided from the goats.
Realism in the legislature is a component of reasonableness.
It was urged by Shri Chitale that the definitional deficiency in ignoring the movable wealth of debtors makes the scheme arbitrary and unreasonable.
A romantic view of the debtors being considerable owners of costly art pieces and sophisticated gadgets and yet eligible for relief is good rhetoric but unrealistic.
A pathetic picture of the money lender being deprived of his loan assets while being forced to repay his lender was drawn but that cannot affect the reasonableness of the relief to the grass roots borrower.
Nor is it value to attack the Act on the score that the whole debt i.e., the very capital of the business, has been dissolved.
More often than not, the money lender would have, over the Iong lived debts and repeated renewals, realized more than the principal if economic studies tell the tale truly.
The injustice of today is often the hangover of the injustice of yesterday, as spelt out by history.
The business of money lending has not been prohibited.
The Act is a temporary measure limit ed to grimy levels of society.
Existing debts of some classes of indigents alone have been liquidated.
If impos sible burdens on huge human numbers are not lifted, social orderliness will be threatened and as a regulatory measure this limited step has been taken by the Legislature.
Regulation, of the situation is necessitous, may reach the limit of prohibition.
Disorder may break out if the law does not step in to grant some relief.
Trade cannot flour ish where social orderliness is not secure.
H the ten sions and unrests and violence spawned by the desperation of debtors are not dissolved by State action, no moneylending trade can survive.
It follows that for the very survival of Trade the regulatory measure of relief of indebtedness is required.
That form this relief should take is ordinarily for the legislature to decide.
It is not ordinarily for the Court to play the role of 'Economic Adviser to the Administration.
Here amelioratory measures have been laid down by the Legislature so that the socio economic scene may become more contented, just and orderly.
Obviously, this is regulatory in the interest of Trade itself.
This policy decision of the House cannot be struck down as perverse by the Court.
The restrictions under the Debt Act are reason able.
Equally clearly, if the steps of liquidation of current debts and moratorium.
are regulatory, article 301 does not hit them.
Even so, argues Shri Nariman, procedural presumptions grossly unreasonable, vitiate the measure.
Of course, reasonableness has a processual facet and if the law is lawless in its modalities, it becomes unlaw constitutional ly.
We may illustratively advert to some of the criticisms but, at the threshold, we confess we are not impressed with the submissions.
852 Shri Nariman itemised the mischievous provisions in the Debt Act from the processual angle.
Others too reiterated with consternation that the provision whereby every debt of every debtor of the specified category stood wholly dis charged was improvident, especially because it did not even require the debtor to move the authorities in that behalf.
On the other hand, the burden was on the creditor to raise the question by instituting a proceeding as to the disquali fication of his debtor for the benefit of the Debt Act.
On top of this obligation to institute proceedings was the precarious prospect of the order being against the creditor because the 'authorised officer ' had to hold in favour of the debtor if he merely produced a certificate under section 7(5) from one of those officials enumerated therein all minor minions of government at the local level.
Once the certif icate was produced by the debtor the onus was shifted to the creditor to make out the contrary. 'How could the money lender prove the debtor 's financial position ? ' asked Shri Nariman.
Moreover, the issuance of a certificate by the local little official was a unilateral process where the creditor was not entitled to be heard as to the means or eligibility of the debtor.
There were two further unreason able procedural impositions on the creditor, argued Shri Nariman.
The lender had to make his application with all the facts within 7 days from the date of receipt of the application from the debtor intimating that the debt stood released.
The 7 day period was too short even to make enquiries about the assets of the debtor, And worse, the application by the creditor shall be entertained by the authorised officer only on the creditor depositing the pledged property of its value.
Thus the dice was 80 heavi ly loaded against the money lender that even persons who were not petty debtors intended to be beneficiaries might, with illegitimate success, claim the bonus of the Debt Act.
Viewed in the abstract, these grievances may look genu ine.
but when we get down to the reality, nothing so re volting exists in these provisions.
It is true that the creditor has to move, and not the, debtor, before the authorised officer.
As between the two, the moneylender is sure to be far shrewder and otherwise more capable of initiating proceedings.
To cast that obligation on the debtor remember, in the bull of cases he is the village artisan, landless labourer or industrial worker is to deny relief in effect while bestowing it in the book.
Likewise, there is nothing horrendous in the debtor seeking a certifi cate of qualification from the small officer of the area.
After all, the officials enumerated in section 7(5) are govern ment servants, local officials, possess familiarity with the wherewithal and the whereabouts of persons within their area and are therefore accessible and competent.
There is no reason whatever for allowing the creditor to be heard at the certificate stage except to prolong and puzzle the proceed ings and by dilatory tactics, deny the relief to be debtor.
The creditor does not suffer because the certificate that the applicant is a debtor raises only a rebuttable pre sumption and it is idle to argue that the creditor has no means of disproving the income or assets of his debtor.
Ordinarily, the mahajan, the sowcar or money lender and the petty borrower live in and around the same neighbourhood the, former knows the circumstances of the latter and often these are not 853 isolated transactions between strangers.
So much so the debtor 's financial horoscope or impecunious kismet is nor mally within the ken of the creditor.
Moreover, a perusal of the pro forma of the certificate to be issued needs mention of several particulars which have to be.
filled up by the certifying officer who has therefore to make the necessary enquiries from and about the debtor.
Assurance about the credibility of the certifying officer 's entries is lent by the personal responsibility cast on him for the correctness of the particulars mentioned in the certificate.
This is a protection for the creditor that routine and reckless entries will not be made and that the certifying officer will take care, prima facie, to be satisfied by proper enquiry before issuing the certificate.
Such a safeguard warrants the raising of a rebuttable presumption of correctness and reduces the possibility of injustice to the creditor for not being allowed an opportunity for being heard at this stage.
In this view also we see noth ing unreasonable in the presumptive evidence of the certifi cate without the hearing of the creditor.
Fairplay is also afforded in the proceeding not only because the creditor can rebut the certificate but also because under section 8 (6) the authorized officer has the power and duty to determine all questions in dispute.
Section 7(7) expressly provides for an opportunity to the creditor and the debtor to be heard.
After all, the authorised officer is one who exercises quasi judicial powers even otherwise on the Revenue side.
While the enquiry is sum mary, the procedure under the Maharashtra Land Revenue Code will be adopted which is a fair safeguard.
Summary trial does not dispense with evidence.
or sound judgment but merely relieves the adjudicator from maintaining elaborate records.
The enquiring officer, may, in appropriate cases, examine the Debtor or others who can throw light.
To equate 'summary ' with 'arbitrary ' is contrary to common experience.
The obligation for the production of the pledged article by the creditor as a preliminary to the institution of the preceedings is also a just measure so that when a decision is reached the article may be returned to the. debtor in the vent of the verdict going in his favour.
The negation of a right of appeal against an order under section 7(6) of the Debt Act is another circumstance.
Shri Nariman has pressed before us.
He cited other debt relief measures where a single appeal had been provided for.
Does the absence of a right of appeal render the procedure unrea sonable ? It depends.
Where the subject matter is substan tial and fraught with serious consequences and complicated questions are litigatively terminated summarily.
Without a second look at the findings by an appellate body, it may well be that unfairness is inscribed on the face of the law, but where little men, with petty debts, legally illiterate and otherwise handicapped, are pitted against money lenders with stamina, astuteness, awareness of legal rights and other superiority, if the purpose of instant relief is to be accomplished, the provision of an appeal may, in many cases, prove abult in booby trap that frustrates and ruins the hand to mouth debtor.
No surer method of baulking the object can be devised ' than enticing 854 the debtor into an appellate bout! Daughter gone and ducate too will be the sequel.
Of course, where the enquiry is a travesty of justice or violaion of provisions, where the finding is a perversity of adjudication or fraud on power, the High Court is not powerless to grant remedy, even after the recent package of Constitutional amendments It is true that in several cases this Court has held that a right of appeal is a gesture of statutory fairness in the disposal of cases.
Our attention was drawn to the rulings reported as Jyoti Pershad (1); Mohd Faruk (1) and Ganesh Beedi Works(2) and other cases hearing on the necessity of a right of appeal, as an incident of fair hearing.
We cannot dogmatise, generalize or pontificate on questions of law whose application depends sensitively on the nature of the subject matter, the total circumstances, the urgency of the relief and what not. 'We have adduced sufficient reason to hold that the Debt Act is not bad for processual perniciousness or jurisprudence of remedies.
The next constitutional missile aimed at the Debt Act was the incompetency of the State Legislature to enact this law, for reasons more than one.
The main ground was covered by Shri Nariman, but yet others made their contributions sometimes overlapping, sometimes overflowing.
Shri B. Sen also challenged the legislative competency, but on a different basis.
Several citations, home spun and foreign, finely woven theories and subtle punditry, gave a grave mein to the argument on this branch.
But the point in issue, in our view, admits of straight solution, by passing the heavy learning and jurisprudential finery.
When Courts are co cooned by case law or caught in the skein of scholarly doctrines, simple questions become complex.
However, prob lems of constitutional law can be well left alone where they do not directly demand a solution in the case on hand.
Enough unto the day is the evil thereof: What then is the incompetence of the State Legislature ? Shri B. Sen urged that the wiping out of private debts which formed the capital assets of the money lenders one of the main things .done by the Debt Act was not in any of the legislative Lists and even if Parliament had residuary power under Entry 97 of List I, the State had none.
Entry 30 in List II is 'money lending and moneylenders; relief of agri cultural indebtedness '.
If common sense and common Eng lish are components of constitutional construction, relief against loans by scaling down, discharging, reducing inter est and principal, and staying the real isation of debts will, among other things, fall squarely within the topic.
And that, in a country of hereditary (1) ; (2) ; (3) ; 855 indebtedness on a colossal scale! It is commonplace to state that legislative heads must receive large and liberal meanings and the sweep of the sense of the rubrics must embrace the widest range.
Even incidental and cognate matters come within their purview.
The whole gamut of money lending and debt liquidation is thus us within the State 's legislative competence.
The reference to the Rajah mundry Electricity Case(1) is of no relevance.
Nor is the absence of the expression 'relief in Entry 30, List II, of any moment when relief from moneylenders is eloquently implicit in the topic.
Sometimes, arguments have only stated to be rejected.
The next ground of attack, in its multi form presenta tion, is that the 'gold loan ' part of the Debt Act is void because Parliament has occupied file field.
It has also been urged that there is inconsistency between the Debt Act and the Gold Control Act, and pro tanto the former fails to have effect.
Let us look at the basics of the legal situation before us, before examining the wealth of learning counsel has accumulated.
Article 24 6 vests exclusive power in Parlia ment over matters enumerated in List I (Seventh Schedule) and the State Legislature enjoys like power over topics in List II, subject to clauses (1) and.
(2) of the Article.
Plainly, therefore, the State can legislate upon any Entry in the State .List.
We may visualize situations where Parliamentary occupation may exclude the State Legislature.
Where, for instance, Parliament while enacting on a matter in the Union List, makes as it is entitled to make, neces sary incidental provisions to effectuate the principal legislation, such ancillary expansions may trench upon the State field in List II.
In such a case, if the State makes a law on an Entry in its exclusive List, and such law covers and runs counter to what has already been occupied by Par liament, through incidental provisions, it may be argued that the State law stands pushed out on account of the superior potency of Parliament 's power in our constitutional scheme.
Again, there are certain telltale heads of legisla tion in the Lists where one may plausibly invoke the, doc trine of occupied field.
Examples may, perhaps, be fur nished by Entries 52 and 54 of List I, Entries 23 and 24 of List Ii and Entry 33 of List III.
Without fear of contra diction, we may assert that article 246(3) read with Entry 30 in List 11, empowers the State to make the impugned law.
Why then is it incompetent? Because, says Mr. Nariman, the field of gold industry is already occupied by Parliament and the State Legislature therefore stands excluded.
Entry 52 in List I reads: "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
" Parliament, in the Industries (Development and Regula tion) Act, 1951 (Act 65 of 1951) has made the necessary declaration contemplated in Entry 52 and has occupied the field of gold industry ', as is (1)[1954] S.C.R. 770. 856 evident from reading section 2 and item 1.B(2) of tile First schedule therein.
This expression of Parliamentary intent to legislate upon the gold industry is enough to expel from that ' field the State Legislature.
This is Shri Nariman 's contention.
But what is the sequitur ? Assuming the ap proprlation by Parliament of the power to legislate on gold, what follows? It can make laws directly on that industry and ancillarily on every allied area where effective exer cise of the parliamentary power necessitates it.
So much so 'business in gold ', licensing of gold merchants, regula tion of making or pledging of gold ornaments, keeping of jewellery, disclosure of gold possessions and the like are incidental to the parliamentary power and purpose and the Gold Control Act, 1968 and the Rules made thereunder are valid (vide, for example, Bantha 's Case: 1970 I SCR 4 79).
Several sections of the Act, some rules and a few rulings were read before us to drive home the point that gold loans are already within the ken of the law made under Entry 52, List I.
If so, what ? Does it spell death sentence on the Debt Act ? Or maim it ? Or leave it intact ? Here we turn to Entry 24 of List II which runs: "Indus tries subject" to the provisions of entries 7 and 52 of List I".
This means that the State Legislature loses its power to make laws regarding 'gold industry since Entry 24 '.
List II is expressly subject to the provisions of Entry 52 of List I.
This does not mean that other entries in the State List become impotent even regarding 'gold '.
The State Legislature can make laws regarding money lending even where gold is involved under Entry 30, List II, even as it can regulate 'gambling in gold ' under Entry 34 , impose sales tax on gold sales under Entry 54, regulate by munici pal law under Entry 5 and by trade restrictions under Entry 26, the type of buildings for gold shops and the kind of receipts for purchase or sale of precious metal.
To multiply instances is easy, but the core of the matter is that where under its this power Parliament has made a law which over rides an entry in the State List, that area is abstracted from the State List.
Nothing more.
In the Kannan Devan Mills Case(1) this Court put the point tersely 'while dealing with Entry 52 of the Union List: "Once it is declared by Parliament by law to be expedient "in the public interest to control the industry, Parliament can legis late on that particular industry and the States I would lose their power to legislate on that industry.
But this would not prevent the States from legislating on subjects other than that particular industry".
(underscor ing, ours).
This is authority for the proposition that while Entry 23 of List II, in the light of the fact that under Entry 52 of List I Parliament has made the Gold ' Control Act has become inoperative to legislate on industry, there ' is no inhibition whatever on State legislation on (1) ; 857 subjects other than that particular industry.
Money.lending is one such subject and the power to legislate thereon remains intact.
We are free to agree that the word 'industry ' as a legislative topic has to be interpreted in the widest ampli tude.
We also find, as a fact, that dealings in gold, including pledging, have been covered in part by the Gold Control Act, 1958; even so nothing prevents the State from making the impugned Act.
In Paresh Chandra Chatterice(1) Subba Rao J (as he then was ) dealt with an apparent con flict between the Central Act (The Tea Act) and a State legislation [The Assam Land (Requisition and Acquisition) Act, 1948].
After examining the scheme of the two Laws, the learned Judge concluded: "A comparative study of both the Acts makes it clear that the two Acts deal with different matters and were passed for differ ent purposes." Unreal and imaginary conflicts between the Central and the State Acts cannot be the foundation for invalidation of the latter.
In Kanan Devan (Supra) it was further pointed out: "If the Act (the Tea Act) is within the competence of Parliament and the impugned Act is within the competence of the State, the ' petitioners must show that the im pugned Act is repugnant to the Tea Act but we can see no conflict between the provisions of the impugned Act and the Tea Act." Banthia(2) was referred to in the course of the arguments and various passages were stressed by different counsel.
The essential question there was as to whether manufacture of gold ornaments.
by goldsmiths fell within the connotation of the word 'industry '.
It did.
It was further pointed out by Ramaswami J in that case that some of the entries overlap and seem to be in direct conflict but the duty of the Court is to reconcile and harmonize while giving the widest ampli tude to the language of the Entries.
We see nothing in that decision which contradicts the position that while the Gold Control Act fell within Entry 52 of List I, the State List was not totally suspended for that reason for purposes of legislating on subjects which fell within that List, but incidentally referred also to gold transactions.
Nobody disputes the paramountcy of parliamentary power.
We have to reconciIe the paramountcy principle with the 'trenching ' doctrine.
In the Canadian Constitution, the question of conflict and coincidence in the domain in which provincial and domin ion legislation overlap has been considered.
If both may overlap and co exist without conflict, neither legislation is ultra vires.
But if there is confrontation and conflict the question of paramountcy and occupied field may crop up.
It has been held that the rule as to predominance of domin ion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both (1) (2) ; 858 the dominion and provincial enactments.
There must be a real conflict between the two Acts i.e. the two enactments must come into collision.
The doctrine of Dominion paramountey does not operate merely because the Dominion has legislated on the same subject matter.
The doctrine of 'occupied field ' applies only where there is a clash between Dominion Legis latic and Provincial Legislation within an area common to both.
Where both can co exist peacefully, both reap their respective harvests (Please see; Canadian Constitutional Law by Laskin pp. 52 54 , 1951 Edn).
We may sum up the legal position to the extent necessary for our case.
Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans and money lending business involving gold ornaments, the State, making a law on a different topic but covering in part the same area of gold loans ', must not go into irreconcilable conflicts.
Of course, if article 254(2) can be invoked We will presently examine it then the State law may stir prevail since the assent of the.
President has been obtained for the Debt Act.
Thirdly, the doctrine of 'occupied field ' does not totally deprive the State Legislature from making any law incidentally referable to gold.
In the event of a plain conflict, the State law must step down unless, as.
pointed out earlier in the previous passage, article 254(2) comes to the rescue.
Many more decisions were brought to our notice, bearing on paramountcy, 'occupied field, ' repugnancy and inconsist ency.
They were elaborated by counsel sufficiently to convince us that lawyer 's law is divorced from plain seman tics and common understanding of Constitutional provisions becomes a casualty when doctrinal complexities are injected.
May be every profession has a vested interest in the learned art of incomprehensibility for the laity.
Law, in the administration of which the Bench and the Bar are partners, probably lives up to this reputation.
All these questions become academic for two reasons.
Firstly, there is no conflict between the Gold Control Act and the Debt .Act.
Secondly, the subjects of both the legis lations can be traced to the Concurrent List and article 254(2) validates within the State the operation of the Debt Act.
We are of the view, as earlier discussed, and without citing further cases on the point, that the State 's legisla tive power, save under the, Entry 24 of List II, is not denuded.
Nor is there any conflict between the two Acts.
A detailed study, section by section, of both the legisla tions, has convinced us that they can stand together and that the two authorities and modalities do not contradict each other and that, by elementary comity, a modus vivendi between the Gold Act and the Debt Act can be worked out.
The provisions in the Gold Act for declarations and other formalities may not collide with the obligations and appli cations under the Debt Act.
We have no doubt that the authorities charged with enforcement under the two statutes will understand the sense and spirit of the provisions and 859 see that the object of the Debt Act is not frustrated or its processes paralysed.
Indeed, the learned Attorney General showed how by reading together the two Acts and remember ing their respective purposes a viable resolution of possi ble imbroglios is simple, although officialdom is not unfa miliar with the art of embroilment where artless customers are involved or ulterior ends are to be served.
The State, through an effective programme of legal aid and advice and other prompt instructions to the agencies involved, should avoid harassments, hold ups and red tapes which are the bane of processual justice.
The jurisprudence of remedies is still a Cinderella of our system.
The Advocate General of Maharashtra assured the Court that in the fair enforcement of the law and the follow up of creating alternative credit agencies his client will take quick and impartial care.
The learned Attorney General, it may be mentioned before winding up this part of the discussion, did draw our atten tion to article 254(2) which is self explanatory.
The State law will prevail in the State, even if there be repugnancy with a Central or existing law, given Presidential assent provided both the legislations fall under the Concurrent List.
Do they ? He says, yes; and points, inter alia, to Entry 6 (transfer of property) and Entry 7 (contracts).
Of course, the law of contracts deals with pledges; so does the Gold Control Act.
The latter does not prohibit pawns where gold is involved, but policies it to prevent evils by prescribing special modalities.
The Debt Act relates to contracts and has fulfilled the requirement in Art.254(2).
We have nearly come to the end of the judicatory journey and have reached the constitutional conclusion that the guarantee that Trade and Commerce and Intercourse shall be free does not necessitate that the little lendee shall remain unfree.
Article.
301 does permit, in our view, legislative action to break agrarian indebtedness and urban usurious bondage lest social disorder disruptive of Trade, break out.
The impugned Act is a partial implementation of the economic thesis of Adam Smith when he wrote, two hundred obsolescent.years ago: "No society can surely be flourishing and happy, of which by far the greater part of the numbers are poor and miserable.
" We are in a Republic with social justice as its indeli ble signature.
And the measure under challenge.
promotes social justice, social order and better conditions for the business of healthy money lending.
The appalling indebtness which cripples our people is an unhappy heritage of our economic system.
The bonded yes terday, the yoke today, and the hope of tomorrow obligate the State to spell out the future tense of the rural human order and to focus on the legislative strategies of allevia tion before the backlash of social confusion begins, and to administer, through working mechanisms, and direct, 7 206SCI/77 860 through social cybernetics, our disenchanted society into fresh formulations of a free future.
Without such govern mental measures of rural regeneration even the good money lenders may have to fold up and the better businessmen wind up.
The larger interests of Trade, Commerce and Intercourse whose.
freedom is a constitutional norm demand that social order shall be preserved through legislative methodolo gy, now radical, now reformatory but always motivated and moderated by the felt necessities of the times.
To come to humane terms with harsh realities by subjecting itself to the reasonable, though unpalatable, regulations of the Debt Act and like measures or to face the adaptational break down where law ,may fail to keep order against those who have nothing to lose except their chains this is the sort of sociological Hobson 's choice before the 'money lenders ' of Maharashtra.
The option is obviously the former and that is the constitutional vindication of the impugned legislation.
All these laws, in themselves marginal, are part of the programschrift for a New Deal which is the cornerstone of the Constitution.
We have been addressed many minor criticisms which have chopped little logic and made out small discriminations but serious constitutional decisions go on major considera tions, not gossamer web flimsiness.
We have listened to these meticulous submissions but are not persuaded that we should even mention them in our longish judgment.
A concluding caveat.
The poignant purpose of ending exploitatire rural urban lending to the weaker members of society is the validating virtue of this legislation, viewed from the constitutional angle.
But, as Shri Nariman at some stage mentioned and the learned Attorney General also concurred mere farewell to existing debts is prone to prove a teasing illusion or promise of unreality unless the Administration fills the credit gap by an easy, accessible and needbased network of humane credit agencies, coupled with employment opportunities for the small man.
The experience of the.
past has not inspired adequate confi dence.
Authoritative official pronouncement, however, owns that "Arrangements so far made to.
give credit and inputs (for rural credit) have had only limited impact.
The problem is a vast one and seems to be growing in size.
Rural banks, credit societies, farmers ' service societies all these have to be strengthened and their activities expanded.
To give pur poseful direction to, this task and to ensure that the interests of agriculturists and farmers, especially the small farmer, are looked after, there is need for an Apex Agri cultural Development Bank in India.
" The legislation we uphold is an added responsibility on the State.
it shall be vigorously enforced with sympathy for the victim class, lest the progressive measure.
prove a paper tiger.
The cadres charged with enforcement must have right orientation correct grasp and social activism, if this law is not to leave a yawning implementation 861 gap.
Hercics in court and hortation in the House must be followed by effective enforcement in the field.
We state this not because the State is not in great earnest it is but because many a welfare legislation in the country reportedly remains a cloistered virtue or slumbrous in effect.
The finest hour of the rule of law is when law disciplines life and matches promise with performance.
On this note of hopeful valediction we wind up.
We dismiss the appeals and the writ petitions, leaving.
the parties to bear their costs, although we had at least on one occasion, sufficient provocation to make a different direction.
| IN-Abs | The Maharashtra Legislature passed the Maharashtra Debt Relief Act.
By the said Act the existing debts of some classes of some indigents have been liquidated.
The Act is a temporary measure.
The validity of the said Act was challenged in the present writ petition and appeals on the following grounds: (1) Money lending was a trade covered by Article 304 of the Constitution.
The restric tion both substantive and procedural imposed by the impugned Act are not reasonable within the meaning of Article 304(b).
(2) The State legislature has no legislative competence to enact the statute.
(3) So far as the Gold ornaments are concerned the field is occupied by the Gold Control Act 1968 passed by the Parliament.
Therefore, inasmuch as the said Act deals with Gold Ornaments it is beyond the legislative competence.
829 The respondents contended that: (1) The money lending in the present case was not a trade.
(2) Even if it was trade the restrictions imposed by the statute are reasonable.
(3) The State Legislature is competent to enact the impugned Act.
(4) The doctrine of occupied field has no application.
(5) The Gold Control Act and the impugned Act deal with two completely different situa tions.
(6) In any case, there is no inconsisten cy between the two Acts.
Upholding the validity of the Act, HELD: (1) It is cruel legal like to legitimate as trade this age and bleeding business whereby the little peasant, the landless tiller, the bonded labour, the pave ment tenant and the slum dweller born and buried during the Raj and the Republic in chili penury.
[836 B C] Atiabari Tea Co. ; , 843, referred to.
(2) The topics of legislation listed in the 7th Schedule must receive a large liberal and realistic interretation.
[836 E] (3) The freedom while it is wide is not absolute.
Every systematic, profit oriented activity, however sinster, suppressive or socially diabole, cannot ipso facto exalt itself into a trade.
Dealings of Banks and similar institu tions having some nexus with trade, actual or potential, may itself be trade or intercourse.
All modern commercial credit and financial dealings amount 10 trade.
However, village based age old, feudal pattern of money lending to those below the subsistence level to the village artisan, the bonded labourer, the marginal tiller and the broken farmer, who borrows and repays in perpetual labour, hereditary service, periodical delivery of grain and unvouchered usuri ous interest is a countryside incubus.
Such debts ever swell.
never shrink, such captive debtor never become quits.
Such countryside creditors never get off the backs of the victims.
[840 D, 841 F H] Ibrahim , referred to.
Automobile Transport (1963) 1 SCR 491, followed.
(4) The economic literature, official and other, on agricultural and working class indebtedness is escalating and disturbing.
Indeed the money lender is an oppressive component of the scheme.
[844 G] (5) The test of reasonableness is not to be applied in vacuum but in the contest of life 's realities.
The Legis lature was confronted with the cruel species of money lend ers.
The life of the law is not noisis but actual experi ence.
The perspective of poverty jurisprudence is radically different from the canons and values of traditional Anglo Indian Jurisprudence.
The subject matter of the impugned legislation is indebtedness, the beneficiaries are petty farmers,manual workers and allied categories steeped in debt and bonded to the money lending tribe.
So, in passing on its constitutionality, the principles of Developmental Jurisprudence must come into play.
[846B, 848G H] (6) The exemption granted by the statute to credit institutions and banks is reasonable because liabilities due to Government, local authorities and other credit institu tions are not tainted with exploitation of the debtor.
Likewise, debts due to banking companies do not ordinary suffer from over reaching, unscrupulous or harsh treatment.
Financial institutions have until recently treated the village and urban worker and petty farmer as untouchables.
[849 E H] (7) Maybe some stray money lenders may be good souls but the Legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular indi vidualisations.
The creditors have not placed material before the Court to contradict the presumption which must be made 830 in favour of the legislative judgment.
Since nice dis tinctions to suit every kindly creditor is beyond the law making process, the court has to uphold the grouping as reasonable and the restrictions as justified in the circum stances of the case.
[850 C E] Australian Bank Nationalisation Case: Commonwealth of Australia vs Bank of New South Wales: , 311, approved.
(8) The Court negatived the contention of the petitioner that there was procedural unreasonableness in the Act.
The section which imposes the obligation on the money lender to prove the debtor 's financial position, the issuance of a certificate in favour of the debtor having a presumptive value without hearing the creditor, the absence of appeal, obligation of the creditor to move the machinery and the period of 7 days and the deposit of the ornaments before the proceedings can commence are all reasonable in the circum stances of the case.
Viewed in the abstract, those griev ances look genuine but when we get down to the reality, nothing so exists in the so called provision.
The provision requiring the creditor to move and not the debtor is reason able because between the two.
the money lender .,is sure to be far shrewder and otherwise more capable of initiating proceedings.
To cast that obligation on the debtor when in bulk of cases he is the village artisan, landless labourer or industrial worker is to deny relief in effect while bestowing it in the book.
There is nothing objection able in the debtor seeking a certificate of qualification from the small officer of the area.
The officer or the Government servant possesses familiarity with the wherewith al and the whereabouts of the persons.
Hearing the creditor before the certificate is issued would merely prolong and puzzle the proceedings.
The creditor does not suffer because the certificate that the applicant is a debtor raises only a rebuttable presumption and it is idle to argue that the creditor has no means of disproving .the income or assets of his debtor.
Ordinarily, the money lender and the petty borrower live in and around the same neighbourhood.
As proforma of the certificate to be issued needs mentioning several particulars these have to be filled by the certify ing officer who has, therefore.
to make the necessary en quiries from and about the debtor.
Authorised Officer is one who exercises quasi judicial powers even otherwise on the Revenue side.
The adoption of the procedure under the Maharashtra Land Revenue Code is a fair safeguard although it is a summary procedure.
To equate summary with arbitrary is contrary to common experience.
The obligation for the production of the pledged article by the creditor as a preliminary to the institution of the proceedings is also a just measure so that when a decision is reached the article may be returned to the debtor in the event of the verdict going in his favour.
Where the subject matter is substan tial and fraught with serious consequences and complicated quest.ions are litigatively terminated summarily, without a second look at the findings by an appellate body it may be that unfairness is inscribed on the face of the law but where little men with petty debts, legally illiterate and otherwise handicapped are pitted against the money lend ers.
absence about appeal cannot invalidate the statute.
Where the enquiry is a travesty of justice or violation of provisions, where the finding is a perversity of 'adjudica tion or fraud on power the High Court is not powerless to grant remedy even after the recent package of constitutional amendments.
[852 A H, 853 A H, 854 A B] (9) Entry 30 in List II in the 7th Schedule is money lending and money lenders; relief of agricultural indebted ness.
If common sense and common English are components of Constitutional construction relief against loans by scaling down, discharging, reducing interest and principal, and staying the realisation of debts will among other things fall squarely within the topic.
[854 F H] (10) The argument that the subject matter of the present legislation would fall under the residuary power under Entry 97 of List I is negatived.
[855 B] (11) Where Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting gold loans and money lending business involving gold ornaments.
The State making a law on a different topic but covering in part the same area of gold loans must not go into irreconcilable conflicts.
The doctrine of occupied field does not totally 831 deprive the State Legislature from making any law inciden tally referable to gold.
In the event of a plain conflict the State Law must step down unless Article 252(2) 'can be invoked.
In that case the State law would still prevail if the assent of the President has been obtained.
There is no conflict between the Gold Control Act and the impugned Act.
Secondly, the subjects of both the legislations can be traced to the Concurrent List and Article 254(2) validates within the State the operation of the impugned Act since the assent of the President has been Obtained.
[858 B D]
|
ivil Appeal No. 2294 1968.
Appeal from the Judgment and Order dated 25 9 1967 of the Madhya Pradesh High Court in Misc.
Petition No. 595/66.
L.N. Sinha, Sol.
Genl, B. Datta and Girish Chandra for the Appellants.
906 S.K. Gambhir, amicus curiae, for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
If the jurisprudence of remedies were understood and applied from the perspective of social effi caciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court.
Judges must never forget that every law has a social pur pose and engineering process without appreciating which justice to the law cannot be done.
Here, the socio legal situation we are faced with is a colliery, an explosive, an accident, luckily not lethal, caused by violation of a regulation and consequential cancellation of the certificate of the delinquent shot firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari.
We may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrongly laid down by the High Court, were set aside and declared a right and he was not insisting on the formal reversal of the order affecting the respondent (who is unrepresented before us).
We proceed on that footing.
The few necessary facts may be narrated to bring up the legal issue in its real setting.
The respondent was a shot firer in a colliery and being a risky, technical job, had to possess a certificate for it.
He handed over an explosive to an unskilled hand who fired it, an accident occurred and one Bhadu, employed in the mine, was injured.
The Regional Inspector of Mines imme diately enquired into the cause of the accident and found, on the respondent 's virtual admission, qualified by some prevarication, that the shots were fired not by himself but by a cutter, an unauthorised person for shot firing to whom the respondent had wrongfully entrusted the work.
Thereby he contravened the relevant Coal Mines Regulations.
The Regional Inspector gave him an opportunity for explana tion and, after considering the materials before him, for warded the papers to the Chairman of the Board together with a recommendation for cancellation of the certificate under Reg. 26.
The Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, which included the delinquent 's admission, and cancelled the shot firing certificate.
The said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26.
Was Regulation 26, in the context and set.
g of the Mines Act, misinterpreted by the High Court at all? This is the short question canvassed before .us.
We permit our selves a few observations Which serve as perspective set ters.
Law is meant to serve the living and does not beat its abstract wings in the jural void.
Its functional fulfilment as social engineering depends or its sensitized response to situation, subject matter and the complex of realities which require 907 ordered control.
A holistic understanding is simple justice to the meaning of all legislations.
Fragmentary grasp of rules can misfire or even backfire, as in this case.
It is a notorious fact that collieries Indian collieries, both before and after nationalisation are strategic sources of the nation 's fuel and, operationally, areas of tragic human hazards.
We need coal, we want miners to bring it from the bowels of the earth.
The dangerous technology is not yet so perfect in India as to ensure risk free extraction.
And, after many lives have been lost by the neglect of operatives or supervisors or supine bosses, follows the scenario of tears and torn down homes, a little monetary compensation, a flutter in Parliament, a longdrawn out Commission, a routine Report about lapses and recipes and the little man 's life or death lot continuing to receive callous considera tion at the hands of the law, law matter, law enforcer this sombre colliery disaster sequence must educate and inform the jurisprudence of high risk opera tions.
In short, the Mines Act (and Regulations) must receive its judicial construction in the total setting, teleclogically approached, not fragmentarily dissected.
The relevant regulation is only a tiny inset in the larger justice of the statute.
The Mines Act has a scheme designed to avoid accidents and ensure safety.
A system of certificates, supervisions and penalties is part of this scheme.
The broad responsi bility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on the lesser men.
Any sensitive jurisprudence of colliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro considerations of responsibility to the community.
The Board must quit, as a legal penalty, if any dreadful deviation, deficiency, default or negligence anywhere in the mine occurs.
In the present case a microbreach is being punished, but when major mishaps occur the top echelons, on account of inadequacies in colliery codes, escape and make others the scapegoats.
Although, in this ease, only injury, not death, has oc curred, there is a good case for new principles of liabil ity, based on wider rules of sociological jurisprudence, to tighten up the law of omission and commission, at the highest levels.
Responsibility and penalty must be the concomitants of highly paid power vested in the top brass.
Back to the pedestrian statement of facts.
The re spondent 's curious contention, accepted by the learned Judge, is best understood after reading Regulation 26: "26.
Suspension of an Overman 's, Sir dar 's, EngineDriver 's, shot firer 's, or Gas testing Certificate (1) If, in the opinion of the Regionl Inspector, a person to whom an Overman 's, Sirdar 's, Engine driver 's, Shot firer 's, or Gas testing Certificate has been granted ii incompetent or is guilty of negligence or misconduct in the performance of his duties, the Regional Inspector may, after giving the person an opportunity to give a written expla nation, suspend his certificate by an order in writing.
10 206SC1/77 908 (2) Where the Regional Inspector has suspended a certificate under sub regulation (1) he shall within a week of such suspen sion report the fact to the Board together with all connected papers including the expla nation if any received from the person concerned.
(3) The Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certif icate, or cancel the certificate.
" The plain purpose of the regulation is to pre empt further harm by suspending the certificate of the shot firer 'if in the opinion of the Regional Inspector ' he 'is incompetent or is guilty of negligence or misconduct in the performance of his duties. after giving the person an opportunity to give a written explanation '.
This suspension is itself a punishment liable to confirmation, modification, reduction of the period of suspension or, by way of enhancement, can cellation of the certificate by the Board.
Before taking such action by way of cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes 'such enquiry as it thinks fit '.
In the present case, the Board had an explanation (styled an appeal) from the respondent, and also a recommendation by the Regional Inspector for cancellation of the certificate.
The latter had not suspended the delinquent but had merely hold an enquiry, reached the prima facie view of guilt and and instead of suspension at once, only made a recommenda tion to the Board for cancellation.
The Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries (see sections 7 & 14).
He has to report to the Board on breaches of regulations and condi tions.
The Board, in its turn, has the over all charge of the safe management of the mine.
Derelictions and viola tions must reach its vigilant eye and be visited with prompt action.
Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely mishaps and introduction of the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama.
Any deviance on the part of these high powered authorities must be visited with tortious or criminal liability.
Such is the price which high position must pay for the consequences of calamitous failures.
Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long grown out commissions whose verdicts often prove dilatory 'shelter ' for the men in whom Parliament has entrusted plenary management.
We emphasize this matter to awaken the law makers to evolve a code of strict liability calling to utmost care not only the crowd of workers and others but the few who shall care or quit so that subterra nean occupations necessary for the nation are made as risk proof as technology and human vigilance permit. 909 Unfortunately, the High Court surrendered to nar rowness of interpretation of Regulation 26 by accepting the submission of the respondent.
To be literal in meaning is to see the skin and miss the soul of the Regulation.
The judicial key to construction is the composite perception of the deha and the dehi of the provision.
So viewed, Reg. 26 is easy of comprehension.
The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable.
The argument runs thus.
Without first suspending the cer tificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter.
Since the Region al Inspector did not suspend the respondent, the Board had no jurisdiction.
Secondly, the Regional Inspector had no power to recommend, but only to report and so the Board 's order, influenced by the recommendation, was bad in law.
Thirdly, the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence in the present case violated natural justice, void ing the order.
All the three points serve to warn the courts how over judicialisation can be subversive of the justice of the law.
Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Board 's power is independent and is ignited by the report of the Regional Inspector.
Such a report exists here.
There is an overall duty of over sight vested in the Board to enforce observance of rules of safety.
To invalidate the Board 's order because the Regional Inspector did not suspend the certificate is a fallacy.
Now to the next point.
The vice that vitiates the Board 's order is stated to be the recommendation contained in the Regional Inspector 's report.
Had he suspended and reported, he would have been in order.
But suspension, on an enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicity conveys a recommendation.
The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee.
And to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice.
The last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one done by the Regional Inspector.
Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board.
He has thus been heard and compliance with Reg. 26, in the circum stances, is complete.
Natural justice.
is no unruly horse, no lurking land mine, nor a judicial cure all.
If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. 'Unnatural expansion 910 of natural justice, without reference to the administra tive realities and other factors of a given case, can be exasperating.
We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction.
No man shall be hit below the belt that is the conscience of the matter.
Shri Gambir, who appeared as amicus curiae and indus triously helped the Court by citing several decisions bear ing on natural justice, could not convince us to reach a contrary conclusion.
It is true that in the context of article 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant.
Certainly we agree with 'the principles expounded therein.
But then we cannot look at law in the abstract or natural justice as a mere artifact.
Nor can we fit into a rigid mould the concept of reasonable opportunity.
Shri Gambhir cited before us the decisions in Teredesai(1); Management of DTU(2) and Tandon(3); and one or two other rulings.
The ratio therein hardly mili tates against the realism which must inform reasonable opportunity ' or the rule against bias.
If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision making body, after fair and independent considera tion, reaches a conclusion which tallies with the recommen dations of the subordinate authority which held the prelim inary enquiry, there is no error in law.
Recommendations are not binding but are merely raw material for considera tion.
Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contra vention of the canons" of natural justice.
We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly why it takes the decision it does unless the circumstances are so clear that the conclud ing or decretal part of the order speaks for itself even regarding the reasons which have led to it.
It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the representation of the delinquent may be pointed and meaningful.
These general observations must be tested on the con crete facts of each case and every miniscule violation does ,not spell illegality.
If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
We are satisfied that the order of the Board cannot be anathematised as condemning the man without being heard.
The appeal, on the point of law, must be allowed but, in the light of the concession made, as stated earlier, we leave the formal order of the High Court undisturbed.
No costs.
S.R. High Court orders main tained.
| IN-Abs | Under regulation 26(1) if, in the opinion of the Regional Inspector, a person to whom an Overman 's, Sirdar 's, Engine driver 's, Shot firer 's, or Gastesting Certificate has been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, he may, after giving the person an opportunity to give a written explana tion, suspend his certificate by an order in writing.
U/r 26(2) he shall within a week of such suspension report the fact to the Board together with all connected papers includ ing the explanation, if any received from the person con cerned.
U/r 26(3) the Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certificate, or cancel the certificate.
The respondent, a shot firer in a colliery, violated the provisions of the Coal Mines Regulations by entrusting his risky, technical work to an unauthorised person which re sulted in an accident injuring one Bhadu.
The Regional Inspector u/r 26(1) gave him an opportunity for an explana tion in writing and after considering the materials before him forwarded the papers to the Chairman of the Board together with a recommendation for cancellation of the cer tificate under Regulation 26(3).
The Board bestowed its judgment on the materials gathered which included the delin quent 's admission, and cancelled the shot firing certifi cate.
The High Court allowed the writ petition assailing the orders of cancellation of the licence and held: (1) The Board had no jurisdiction since the Regional Inspector did not suspend the certificate first before reporting (2) The Regional Inspector had no power to recommend but only to report and so the Board 's order influenced by the recommen dation was bad in law and (iii) the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence violated natural justice, void ing the order.
Accepting the Court, HELD: (1 ) Law is meant to serve the living and does not beat its abstract wings in the jural void.
Its functional fulfilment as 'social engineering ' depends on its scruti nized response to situation, subject matter and the complex of realities which require ordered control.
A holistic understanding is simple justice to the meaning of all legis lations.
Fragmentary grasp of rules can, n misfire or even backfire, as in this case.
[906 H, 907 A] (2) The judicial key to construction is the composite perception of the daha and the dahi of the provision.
To be literal in meaning is to see the skin and miss the soul of the Regulation.
[909 A B] (3) Over judicialisation can be subversive of the justice of the law.
To invalidate the Board 's order because the Regional.
Inspector did not suspend the certificate is a fallacy.
The Board 's power is independent and is ignited by 905 the report, which exists in this case, of the Regional Inspector.
There is an overall duty of oversight vested in the board to enforce observance of rules of safety.
[909 D] (4) To set aside the order on the ground that the Re gional Inspector had no power to recommend but only to suspend and report that his recommendation influenced the Board 's order is to enthrone a processual nicety do dethrone plain justice.
Suspension, on a.n enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicitly conveys a recommendation.
The differ ence between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee Recommendations are not binding but are merely raw materials for consideration.
Where there is no surrender.
of judge ment by the Board to the recommending Regional Inspector, there is no contravention of the cannons of natural justice.
[909 E F, 910D E] (5) Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all.
If fairness is shown by the decision maker to the man proceeded against, the form features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation.
no breach of natural justice can be complained of.
Unnatural expansion of natural justice.
without reference to the administrative realities and other factors of a given case, can be exasperating.
Courts cannot look at law in the abstract or natural justice as a mere artifact.
Nor can the), fit into a rigid mould the concept of reasonable opportunity.
If the totality of cir cumstances satisfies the Court that the party visited with gelverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
In the instant case, the Board cannot be anath ematised as condemning the man without being heard.
The respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board.
He has thus been heard dad compli ance with Regulation 26 in the circumstances is complete.
[909G H, 910 A G] Tereaesai 's case ; ; Management of DTU ; Tandon 's case referred to.
Observations: Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long drawn out commissions whose verdicts often prove dilatory 'shelter ' for the men in whom Parliament his en trusted plenary management.
Any sensitive jurisprudence of colliery management must make it cardinal to pt nish the Board vicariously for any major violations and dreadful disasters, on macro:considerations of responsibility to the community.
The Board must quit, as a legal pendry, if any dreadful deviation.
deficiency, default or negligence anywhere in the mine occurs.
This is a good case for new principles of liability, based on wider rules of sociologi cal jurisprudence to tighten up the law of omission and commission at the highest levels.
Responsibility and penal ty must be the concomitants of highly paid power vested in the top brass.
Any deviance on the part of these high powered authorities must be visited with tortious or criminal liabilities.
[908 F H, 907 D FI (The Court emphasised the need for evolving a code of strict liability calling to utmost care not only the crowd of workers and others but the few shall care or quit so that subterranean occupations necessary for the nation are made as risk proof as technology and human vigilance permit).
|
Appeal No. 1988 of 1968.
Appeal by Special Leave from the Judgment and Decree dated 21/22 3 1968 of the Gujarat High Court in First Appeal No. 760/60.
S.T. Desai, I. N. Shroff and H.S. Parihar for the Appel lants.
J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is by the legal representa tives of the defendant in the suit by special leave against the judgment and decree of the High Court of Gujarat.
The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one half share of the suit house and the moveable properties mentioned in the plaint.
One Fakirchand had three sons, Nathubhai, Lallubhai and Nanabhai.
Nanabhai is the defend ant whose legal representatives are the present appellants in this Court.
Lallubhai 's son, Manilal, was the first plaintiff and his mother and widow of LaIIubhai, Bai Mani, was the second plaintiff.
The second plaintiff is since dead and his legal representatives are respondents 2(b) and 2(c) in this appeal.
Nathubhai, Lallubhai and Nanabhai were originally the members of a joint Hindu family.
The case of the plaintiffs, respondents in this appeal, is that the three brothers Nathubhai, Lallubhai and Nanab hai were members of a joint undivided Hindu family and when they were joint in the year 1940 Nathubhai died leaving his widow Bai Kashi.
Subsequently in the year 1942 Lallubhai died.
On 24th January, 1956 Bai Kashi, the widow of Nathubhai, died while the family continued to be a joint undivided Hindu family.
According to the respondents the properties were never partitioned though the three brothers were staying and messing separately and each branch carried on its business separately.
The family immoveable and moveable properties were never divided.
The respondents also questioned the validity of a sale deed executed by Bai Kashi on 25th April, 1955 in favour of the appellants of her share in the immoveable property as it was not for legal necessity.
In the written statement the appellants denied that the three brothers were members of a joint family.
They pleaded that the brothers were separated and each branch used to do its own business keeping their earnings separately and messing separately.
So far as the suit house was concerned it was divided though not by metes and bounds and the 922 brothers lived in separate portions of the house.
The appellants claimed that they were entitled to 2/3 share in the house as Bai Kashi the widow of Nathubhai had sold her share by registered deed 25th April, 1955 to the appellants.
On these pleadings 9 issues were framed of which three are relevant for the purpose of this appeal.
They are: (1) Does the defendant prove that he and his two brothers Nathubhai and Lallubhai had separated and the suit house was also divided (through not by metes and bounds) at the time of the.
death of Nathubhai ? (2) Does he further prove that the sale deed executed by Bai Kashi in respect of the one third share of the suit house was for legal necessity anti to satisfy her debts ? and (3) Do the plaintiffs prove that after Bai Kashi 's death they become entitled to.
a one half share in the whole of the suithouse ? The trial court found that the three brothers had become separate in status before the deaths of Nathubhai and Lallubhai.
It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant and recorded the finding in favour of the defendant.
Regarding the second issue it found that the defendant had failed to prove that there was legal necessity for Bai Kashi to sell away the share in the suit house.
On the third issue the trial court recorded a find ing that after Bai Kashi 's death the respondents became entitled to 1/2 share in the whole of the suit house.
On appeal the High Court confirmed the findings or the trial court on three issues and dismissed the appeal.
The findings of both the courts below that the defendant and his two brothers had separated and the suit house was also divided by metes and bounds was not challenged before us by the counsel for the respondents.
So also the finding that the sale deed executed by Bai Kashi in respect of her 1/3 share of the suit house was not proved to have been for legal necessity.
The only point that was raised by the counsel for the appellants is that the respondents ' plea that the three brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survi vorship having been negatived by the courts below the suit ought to have been dismissed and that the courts erred in finding a new case of succession to the property of Bai Kashi without the necessary pleadings.
It may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not sup ported by legal necessity if on the death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree grant ed by courts below would be right even though the claim to the 1/2 share is not based on succession.
The contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to the claim made in the plaint.
The averment in the plaint is that on 24th January, 1956 Bai Kashi the widow of Nathubhai died and Nanabhai continued as the member of the joint Hindu family.
923 There is no alternate claim that in the event of the parti tion being negatived the plaintiff would be entitled to 1/2 share of Bai Kashi by succession.
The 3rd issue that was raised was whether on Bai Kashi 's death the appellants became entitled to 1/2 share in the whole suit house.
The trial court on that issue found that Bai Kashi became enti tled to 1/2 share of her husband in the suit house under the Hindu Women 's Rights to Property Act, 1937.
As her interest was only a limited interest known as Hindu Women 's Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the .
On this basis the trial court was of the view that on the death of Bai Kashi her share would go to the reversion ers.
On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full broth ers inherit along with sons of full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai.
The court held that the claim of the plaintiff for 1/2 share should be decreed though there is no specific claim on the plea of separation and heirship.
The defend ant, present appellants, in their appeal to the High Court submitted that the trial Judge erred in saying that the Kashi had only a widow 's estate when she died and that the trial court failed to appreciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial on the basis of the succession.
The High Court has not dealt with this issue satisfactorily.
The High Court after referring to the pleadings observed that the plaintiffs claimed 1/2 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before the trial court that even if the brothers had separated the defendant and the plaintiff No. 1 inherited together to Nathubhai after Bai Kashi 's death and therefore the plain tiff would be entitled to 1/3 share.
After making these observations the High Court has referred to the plea in the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether the defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suit house was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiff 's suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence was led by both the parties on that point.
This reference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashi 's share after her death.
In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi.
In fact, the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathub hai 's 1/3 share in the suit house absolutely.
It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11 206SCI/77 the Mitakshara school in Gujarat.
We find that the question 924 that arose mainly whether the respondents are entitled to succeed to Bai Kashi 's 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appel lants.
While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allot ment of 1/3 share by metes and bounds cannot be resisted.
Though the brothers became separate admittedly there was no division by metes and bounds.
There is also no dispute that the respondents are entitled to.
1/3 share in the house.
Therefore though they became separated in status the suit house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house.
To this extent the decree of the courts below will be modified.
But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants ' plea that the respondents are not entitled to succeed to Bai Kashi 's 1/2 share the question is remitted to the High Court for consideration.
The High Court will consider as to.
whether the respondents are entitled to succeed to 1/2 of the 1/3 share of Bai Kashi and pass a decree accordingly.
To this extent the appeal is allowed and the decree of the trial court and the High Court modified.
The parties will bear their own costs in this appeal.
P.H.P. Appeal allowed.
| IN-Abs | The respondent plaintiffs filed a suit for partition and allotment of one half share of the suit house and the move able properties.
One Faqir Chand had 3 sons, Nathubhai, Lallubhai and Nanabhai.
Nanabhai was the defendant in the suit whose legal representatives are appellants.
Lallub hai 's heirs are the plaintiffs.
According to the plain tiffs the three brothers were members of a Joint Undivided Hindu Family.
According to the respondents the properties were never partitioned though the three brothers were stay ing and messing separately and each branch carried on its business separately.
The respondents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale was not for legal necessity.
The appellants contended that the three brothers were separate and each branch used to do its business separately.
That as far as the suit house was concerned it was divided though not by metes and bounds and that the brothers lived in separate portions of the house.
The appellants claimed that they were entitled to 2/3 share on the house.
The Trial Court found that the 3 brothers had separated before the deaths of Nathubhai and Lallubhai.
It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant.
It came to the conclusion that the defendant had failed to prove that there was any legal necessity for Bai Kashi to sell the share in the suit house and that after Bai Kashi 's death the respondent was entitled to one half share in the suit house.
The Trial Court found that Bai Kashi became entitled to one ' half share of her husband in the suit house under the Hindu Women 's Rights to Property Act, 1937.
As her interest was only a limited interest known as Hindu Women 's Estate when Bai Kashi died in January 1956, she had not become the full owner of the share under the .
The court was of the view that on the death of Bai Kashi her share would go to the reversioners.
The court held that the parties were governed by Mayukh school which over rules the Mitakshara school and, therefore, after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai.
The court held that the claim of the plaintiff for one half share should be decreed though there was no specific claim on the plea of separation and heir ship.
The High Court dismissed the appeal and confirmed the findings of the Trial Court.
In an appeal by Special Leave the appellants contended that the respondents ' plea that the 3 brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survivorship having been negatived by the courts below the suit ought to have been dismissed and that the court erred in making out a new case of succession to the property of Bai Kashi without necessary pleadings.
Allowing the appeal partly, HELD: 1.
On the question whether the respondents are entitled to one half share on her death has not been dealt with by the High Court.
This Court agreed with the concur rent findings of the Trial Court and the High Court that the family was separate and that the sale deed by Bai Kashi in favour of the appellants was not for legal necessity.
However, the claim of the respondent for partition and allotment of 1/3 share by metes and bounds 921 cannot be resisted.
Though the brothers became separate admittedly there was no division by metes and bounds.
There is also no dispute that the respondents are entitled to 1/3 share in the house.
[924 A C] 2.
The High Court did not deal satisfactorily with the contention of the defendant that the Trial Judge erred in saying that Bai Kashi had only a widow 's estate when she died in the absence of any issue as to who were heirs of the deceased Bai Kashi.
On the question whether respondents are entitled to succeed to Bai Kashis 1/2 share, the Court remitted the matter to the High Court for consideration.
[924 C D]
|
Appeal No. 2269 of 1972.
(From the Judgment and Order dated 9 5 1972 of the Allahabad High Court in Special Appeal No. 125/70).
J.P. Goyal, G.S. Chatterlee and Shree Pal Singh, for the Appellants (Other than 2nd appellant).
S.M. Jain and S.K. Jain, for the Appellant No. 2.
V.M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad Hussain, S.S. Khanduja, Urea Dutta and Miss Manik Tarkunde, for Respondents Nos. 1, 4, 5, 7 and 8.
S.K. Mehta, for Respondents Nos. 11 12.
The Judgment of the Court was delivered by CHANDRACHUD, J.
This appeal by certificate raises a question as regards the validity of a will executed by an eighty year old woman 579 five days before her death.
The testatrix Jaggo Bai had a muchmarried son called Beni Chand, the last of whose three marriages has given birth to this long litigation.
Beni Chand 's first wife, Chameli Bai, died leaving behind Re spondents 3, 5, 6, 7 and 8 as her heirs.
His second wife Kamla Kunwar is Respondent 1.
Respondent 4 is her daughter and respondents 9 and 10 are her grand daughters.
Beni Chand had no male issue from his two wives and therefore, in 1928, he gambled for a ion by marrying Ved Kumari.
That marriage created dissensions in the family, partly because Ved Kumari belonged to a different caste but more substan tially because the entry of yet another woman in the house hold was like a last straw.
On October 26, 1961 Jaggo Bai made a will disinheriting her son Beni Chand and the chil dren born of Ved Kumari, and bequeathing her extensive properties to the progeny born of Chameli Bai and to Kamla Kunwar and her progeny.
Jaggo Bai died on October 31, 1961.
Kamla Kunwar who was appointed under Jaggo Bai 's will as an executrix filed a petition in the Allahabad High Court for probate of the will.
Beni Chand filed a caveat contend ing that the will was a forgery and was prepared in collu sion with one Dwijendra Nigarm, an advocate, while Jaggo Bai was lying in an unconscious state.
A learned single Judge of the High Court dismissed the petition on the ground that the propounder of the will had failed to explain the suspicious circumstances surrounding the execution of the will.
That judgment was reversed in appeal by a Division Bench of the High Court, which upheld the validity of the will.
This appeal by certificate is directed against the appellate judgment of the High Court.
There is no gainsaying the fact that the execution of the will is shrouded in circumstances which require a cogent explanation, particularly as the testatrix was ad vanced in age and the provisions of the will are prima facie unnatural.
But, we do not see enough reason for rejecting the conclusion of the High Court that the executrix who propounded the will has offered a satisfactory explanation of those circumstances.
The relations between Jaggo Bai and her son Beni Chand were strained beyond words.
A long span of over 30 years following upon Beni Chand 's marriage with Ved Kumari is littered with ,a spate of litigations between the mother and son.
Beni Chand gave to his mother a good look of law and law courts, civil and criminal.
Exasperated by his unfilial contumacy, Jaggo Bai executed a gifit deed of her Stridhan properties excluding him scrupulously from her bounty.
Later, she executed a document of a testamen tary nature disinheriting him.
These instruments were on persuasion cancelled but Beni Chand did not mend his ways.
On October 26, 1961 when the impugned will was executed by Jaggo Bai, a litigation was still pending between the mother and son, and just 3 or 4 days before the execution of the will, the eighty year old Jaggo Bai had to appear in the Court.
In this background, the fact that Jaggo Bai did not give any part of her properties to Beni Chand cannot be described as unnatural.
Add to that the stark fact that the testatrix while disinheriting Beni Chand, bequeated the entire property to his wife, Kamla Kunwar, the children born of her and to the progeny born of Beni Chand 's first wife Chameli Bai.
Jaggo Bai.
580 never reconciled herself to Beni Chand 's third marriage with Ved Kumari and she excluded that branch from the be quest.
It is alleged that Dwijendra Nigam, an advocate, con spired with Jaggo Bai 's pro deceased daughters 's son Ratan Lal to forge the will.
But from the long and varied cross examination of Nigam it is difficult to discover any reason why he should do so.
He received no benefit under the will and had no interest either in seeing that the progeny born of Beni Chand 's first two wives should get the property or in ensuring that Beni Chand, Ved Kumari and their children should be left out.
It is significant that Beni Chand who alleged by his caveat that Nigam was the villain of the piece, did not file any affidavit in support of his caveat and what is more important, he did not enter the witness box to substantiate his accusation.
The charge that Nigam and Ratan Lal forged the will is thus left to chance and guess work.
As for Ratan Lal, who is respondent 2 to this appeal, he admitted the execution of the will though it was against his interest to do so.
If the will is set aside, Beni Chand and Ratan Lal will each be entitled on intestacy to a moiety in Jaggo Bai 's estate, which was her Stridhana property.
Ratan Lal gets nothing under the will of his grand mother Jaggo Bai.
These features of the case dispel the suspicion arising out of the circumstances that the testatrix was at the threshold of death when she made the will, that she was far too advanced in age to bring to bear an independent judgment on the disposal of her property and that she disinherited her only son under her will.
It has to be mentioned that though over eighty years of age, Jaggo Bai was not an in valid, that just a few days before her death she had ap peared in the court in a case relating to Zamindari Bonds between her and Beni Chand, that a criminal case launched by Beni Chand against her was defended by her Zealously leading to an order of composition two or three months before her death and that in spite of the unkind cuts that Beni Chand had inflicted on her she wanted to try and help him at one stage.
In an old letter (exhibit 161 Ga) which she wrote to him, she said plaintively: "Now have a short span of life.
I shall not be coming to see what happens hereafter.
Please do not injure my heart.
Come back at once . ".
These entreaties fell on deaf ears.
Beni Chand dragged his mother from pillar to post over a course of twenty years and he never came back.
He lived separately from her and did not bother to attend to her even when she was dying.
He awoke to his son ship only when it came to claiming the mother 's estate.
Two circumstances would appear to have influenced the judge ment of the learned Single Judge in ho1ding that the will was not proved to be Last will and testament of Jaggo Bai.
The first circumstance is that the thumb mark which Jaggo Bai is alleged to have made on the will does not bear the usual endorsement that it is of the left or the right thumb and secondly that neither of the two attesting witnesses was examined to prove the formal execution of the will.
The Division Bench of the High Court, sitting in appeal against the judgment of the learned Single Judge, has ac cepted the explanation 581 offered by Shri Nigam that the endorsement remained to be made through inadvertence.
Nigam had no personal interest in the matter and the explanation, being unmotivated, could reasonably be accepted.
The learned judges also accepted the evidence of the Advocate that he himself held the right hand of Jaggo Bai and took the impression of that thumb on the will.
That meets the argument that an impression admitted to be of Jaggo Bai 's left thumb does not tally with the one on the will.
The two will not tally since the two thumbs would have different characteristics.
The will was executed in triplicate, one copy of which was deposited with the District Registrar on October 28, 1961, that is, two days after the will was executed.
It is difficult to believe that a practising advocate would run the risk of depositing a forged will with a public official while the testatrix was still alive.
Beni Chand lived in the same town as his mother, though separately from her and it is impossible in the very nature of things that as alleged by him, Nigam and Ratan Lal took the thumb impression of Jaggo Bai while she was lying unconscious.
Jaggo Bai might lose her conscious ness but she was possessed of a large estate and in the normal course of human affairs, she would,.
while uncon scious, be surrounded by a large number of close relatives of which there were many in the town of Banda in which she lived.
To think that Nigam could steal a thumbimpression of the dying woman puts a strain on one 's credulity, particu larly when he stood to gain nothing and Ratan Lal, the alleged coconspirator, would be better off without the will.
It is a strange plea that Ratan Lal who, on intestacy, stood to gain a one half share in his grand mother 's estate chose to exclude himself by fabricating the will.
There is some evidence that a portion of Jaggo Bai 's right thumb was mutilated but on examination of the relevant circumstances in that behalf, the Division Bench of the High Court has rejected the suggestion that the right thumb of the testa trix was so badly damaged as to be incapable of producing an impression.
With these plain findings of fact, we see no reason for interfering by going into minute details of the evidence.
There is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness 's evidence.
Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested.
It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Since by section 63 of the Succession Act, 1975 a will has to be attested by two or more witnesses, section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will.
But this argument overlooks that Dwijendra Nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai.
None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary docu ment as an attesting witness cannot take the place of evi dence showing due execution of the document.
By attestation is 582 meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by sec tion 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiv ing a personal acknowledgment from the executant regards the execution of the document.
Nigam 's evidence shows that he and the other two witnesses saw the testatrix putting her thumb mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb mark on the will.
The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily.
It is well settled that the onus probandi Iies in every case upon the party propounding a will, and he must satisfy the con science of the Court that the instrument so propounded is the last will of a free and capable testator.(1) By "free and capable testator" is generally meant.
that the testator at the time when he made the will had a sound and disposing state of mind and memory.
Ordinarily, the burden of proving the due execution of the will is discharged if the propound er leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested.
For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by section 68 of the Evidence Act.
But where, as in the instant case, the circumstances sur rounding the execution of the will are shrouded in suspi cion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence.
The testatrix was advanced in age being past eighty years of age, the will contains provisions which are prima facie unnatural since the only son is disinherited under it and the testatrix died five days after making the will.
There can be no dispute that these are gravely suspicious circum stances.
But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind.
Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circum stances attendant on the execution of the will raise a suspicion as regards its due execution.
The burden in testamentary cases is of a different order than in other cases in the sense that an attesting witness must be called, wherever possible, to prove execution, the propounder must remove the suspicion, if any, attaching to the execution of the will and if there be any doubt regarding the due execu tion, he must satisfy the conscience of the court that the testator had a sound and disposing state of mind and memory when he made the will.
"Reasonable scepticism, not an obdu rate persistence in disbelief nor a resolute and impenetra ble incredulity" is demanded of the testamentary judge: "He is never required to close his mind to the truth".
(2) Gajendragadkar J. who spoke for the Court in Iyengar 's case(3) noticed these (1) See Jarrman on Wills (6th Ed., D 50) and H. Venka tachala lyengar vs
B.N. Thijmajamma & Ors.
[1959] Suppo.
1 S.CR. 426.
(2) See Harmes vs Hinksen per Lord Du Parcq.
(3) [1959] Supp.
2 S.CR.
583 observations of Lord Du Parcq with approval and said: It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judi cial mind must always be open though vigilant, cautious and circumspect." Bearing these principles in mind and giving equal weightage to openness and vigilance, the position emerging from the evidence may be briefly summed up thus: Beni Chand 's behaviour was far too unfilial and remorseless for him to find a place in the affections of his mother Jaggo Bai.
He had bruised her so badly that she could not possi bly reward him with a precious inheritance.
But she gave her estate not to strangers but to his children born of the first two wives and to the second wife Kamla Kunwar.
She also gave him a personal right of residence in one of the houses.
Shri Nigam, the advocate, had no personal motive or bias to hatch a conspiracy to forge the will.
He received no benefit under the will, directly or indirectly.
And Ratan Lal was the least suitable co conspirator because, he stood to lose under the will what he would have got without it.
He would have been an equal sharer with Beni Chand in Jaggo Bai 's estate under section 15(1)(a)) of the .
The entire property comprised in the will was Jaggo Bai 's Stridhana.
The will was read out to Jaggo Bai and in spite of her advanced years she was in a sound state of mind and body.
The chosen few do possess that privilege.
Thus the executrix has successfully discharged what, in the circumstances, was a heavy onus of proving the due execution of the will and of offering a satisfactory explanation of the suspicious circumstances surrounding the will.
We are in agreement with the Division Bench of the High Court, which was conscious of the special rules governing proof of testamentary instruments, that the will propounded by the executrix is the last will and testament of Jaggo Bai, made while she was in a sound and disposing state of mind and memory.
Beni Chand who opposed the grant of probate to his wife Kamla Kunwar died during the pendency of the appeal in this Court.
He is now represented by his legal representatives almost all of whom supported the grant of probate.
The one person from amongst the heirs of Beni Chand who stoutly pressed this appeal is Vikram Chander, one of the sons of Beni Chand, born of his third wife Ved Kumari.
While Kamla Kunwar 's appeal was pending before the Division Bench of the High Court, Beni Chand alienated some of the properties included in the will to a person called Sadhu Prasad.
The alienation was purportedly made on the basis that the learned Single Judge of the High Court had set aside the will and had refused to grant the probate to the executrix.
The alienee Sadhu Prasad is also an appel lant before us, having joined Beni Chand in filing the appeal.
We have had the benefit of the arguments advanced by Mr. Jain on behalf of the alienee but nothing that he has urged is enough to upset the view taken by the Division Bench of the High Court.
The only argument advanced by Mr. Jain to which refer ence need be made is that even alienees are entitled to citations in probate proceedings and in the absence of such citations the grant of probate is 584 vitiated.
In support of this submission reliance is placed on a judgement of the Madhya Pradesh High Court in Banwari lal Shriniwas vs Kumari Kusum Bai and Ors.
C) It was held in that case that any interest, however slight, and even the bare possibility of an interest is sufficient to entitle a party to oppose the grant of probate.
A purchaser, there fore, who acquires an interest in the estate of the testator by reason of a transfer by his heirs must be cited in testa mentary proceedings.
We will assume without affirming that this is the true position in law but the important distinc tion is that the alienee in the instant case is a trans feree pendeme lite who purchased some of the properties included in Jaggo Bai 's will while the Letters Patent Appeal was pending in the Allahabad High Court.
In the very nature of things no citation could be issued to him prior to the commencement of the probate proceedings.
In fact, we felt that the alienee had no right to be heard in this appeal.
Nevertheless, we heard his counsel on the point whether the executrix has established the will.
One reason why we heard the alienee is that he should not be able to raise any objection later that the decision in these proceedings is for some reason or the other not binding upon him.
The property included in the will is for the time being in the possession of a Receiver appointed by the Court.
Since we have upheld the will, the Receiver shall have to hand over the property to the executrix, Kamla Kunwar, who is respondent 1 to this appeal.
We however direct that the Receiver shall continue in possession Of the property for a period of 4 months from today and hand it over to respondent 1 on the expiry of that period.
The alienee Sadhu Prasad may, if so advised, file a suit within that period for such relief as he is advised to seek and obtain interim orders, if he may, within that period as regards the possession of the property alienated to him.
Subject to such orders, if any, the Receiver shall hand over the property to respond ent 1, Kamla Kunwar.
Mr. Tarkunde who appears on behalf of respondents 1, 4, 5, 7 and 8 made a statement before us on the conclusion of the arguments in the appeal that even if we uphold the validity of the will, his clients would be willing to make an ex gratia payment to 4 out of the 5 children born to Beni Chand from Ved Kumari.
Two daughters Subhashni Seth and Chander Rekha and three sons, Pratap Chander, Vikram Chander and Khem Chander were born to Beni Chand from Ved Kumari.
Mr. Tarkunde has given an undertaking to this Court on behalf of his clients that they shall pay a sum of Rs. 20,000/ to each of the two daughters, Subhashni Seth and Chander Rekha and a similar amount to each of the two sons, Pratap Chander and Khem Chander.
Under this arrangement, no amount whatsoever shall be payable to Vikram Chander and not certainly to the alienee Sadhu Prasad.
According to the undertaking, the aforesaid amount totalling Rs. 80,000/ shall be paid to the four persons mentioned above within one year of the date on which respondent 1 obtains actual pos session of the properties included in the will, which were alienated ,by Beni Chand.
Mr. Tarkunde also agrees and undertakes on behalf of 1) A.I.R. 1973 M.P. 69.
585 clients that in the event that the aforesaid amount or any part of it is not paid as stipulated, the persons to whom the amount is payable, or any one or more of them, shall be entitled to recover it in execution of this judgment as if there were a decree in favour of each of them in the sum of Rs. 20,000/ .
In the result, we dismiss the appeal and direct that the costs of the appeal shall be paid equally by Vikram Chand er, the son of Beni Chand and by the alienee Sadhu Prasad.
M.R. Appeal dismissed.
| IN-Abs | Three or four days before her death, Jaggo Bai executed a will, bequeathing her Stridhana property to her son Beni Chand 's second wife Kamla Kunwar and her children, and also to the progeny horn of his first wife.
Bern Chand, his third wife and her children were excluded from the will.
Beni Chand opposed the probate of the will contending that it was a forgery and challenged the execution of the will.
A single Judge of the High Court held that the propounder of the will had failed to explain the suspicious circumstances surrounding its execution, but in appeal, the Division Bench upheld the validity of the will.
Dismissing the appeal, the Court HELD: (1) The mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document.
An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.
[581H. 582A] (2) The onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
Where the circumstances surrounding the execution of the will are shrouded in suspi cion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence, and by offering an explanation of auspicious circumstances which can satisfy a prudent mind.
[582C, E F]
|
Appeal No. 841 of 1974.
Appeal by Special Leave from the Judgment and Order dated 30 3 1970 of the Kerala High Court in Writ Appeal No. 39/70 and Civil Appeal No. 1575 of 1970.
Appeal by Special Leave from the Judgment and Order dated 22 12 1969 of the Kerala High Court in O.P. No. 211/65, 939 V. Sivarama Nair and ,4.
section Nambiar for the Appellants in both :the Appeals.
M.C. Bhandare and K.M.K. Nair for Respondent No. 1 in CA 841 and R. 2 in CA 1575/70.
(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No. 1 in CA No. 1575/70.
K.S. Ramanurthi, N. Sudhakaran and P.K. Pillai for Respondent No. 45 in CA 1575/70.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Since these two appeals involve identi cal questions, we propose to state the facts of one of these only.
The decision in Civil Appeal No. 1575 of 1970 will govern the other appeal.
The three appellants were .appointed as temporary Junior Engineers in the Madras High Way Subordinate Service under rule 10(a)(i)(1) of the Madras State and Subordinate Serv ices Rules.
Appellants 1 and 2 were appointed on June 6 and June 8, 1951 respectively while the third appellant was appointed on June 30, 1950.
A few years later they were appointed to the very same posts after selection by the Public Service Commission and in course of time, orders were issued under rule 23(a) of the aforesaid rules permit ting them to commence their probation from dates anterior to the dates of their appointments after selection by the Public Service Commission but subsequent to the dates of their initial 'appointments under rule 10(a)(i)(1).
The first appellant was permitted to commence his probationary period on July 4, 1954, the second on July 18, 1954 and the third on March 15, 1953.
On November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to.
the Kerala State.
which was formed by inclusion therein of parts of the States of Madras and Travancore Cochin.
As in other States, so in Kerala, it became necessary to fix rules of seniority governing employees drawn from different States, parts of which were integrated in Kerala.
A conference of Chief Secretaries of various States was held on May 18 and 19, 1956, to consider problems arising out of reorganisation of States and the consequent integration of services.
Pursuant to the decision taken in that Conference, the Government of Kerala passed an order on December 29, 1956 providing that the relative seniority as between persons drawn from different States and holding posts declared to be equivalent shall be determined by considering the length of continuous service in the equated grade, whether such serv ice is temporary or officiating, quasi permanent or permanent.
The order, however, expressly provided that in the aforesaid determination, the period for which an ap pointment was held "in a purely stop gap or emergency ar rangement" was to be excluded.
On April 3, 1957 the.
Gov ernment of India issued a directive under section 117 of the States ReorganisatiOn Act stating that it was agreed that in determining the relative seniority as between two persons holding posts declared as equivalent to each other and drawn 'from different States the length 12 206sC1/77 940 of continuous service, whether temporary or permanent, in the particular grade should be taken into account, exclud ing "periods for which an appointment is held in a purely stop gap or fortuitous arrangement.
" On April 2, 1958 the Government of Kerala issued a clarificatory order stating that for computing length of continuous service "only short periods for which an appointment was held in purely stop gap or emergency appointment will be excluded.
" It issued another order on August 16, 1961 stating that one year of temporary service of Junior Engineers allotted from Madras would be excluded for the purposes of fixing their inter state seniority.
Representations were made against this order to the Government Of India which directed by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore Cochin or Madras personnel prior to November 1, 1956 before regulari sation of their appointments should be taken into account for the purposes of deciding interstate seniority, only if such service is either regularised, or it is in a time scale of pay and is reckoned for grant of increments in the time scale and is continuous.
On May 16, 1962 the Govern ment of Kerala passed an order modifying its earlier orders so as to conform to the decision taken by the Government of India on March 1, Consequently, in October 1962 a provi sional integrated gradation list of Junior Engineers was prepared by the State Government giving to the appellants ranks therein at serial nos.
145, 137 and 123 respectively.
Employees drawn from the Travancore Cochin area being evidently prejudiced by the decision of the Kerala Govern ment made representations to the Government of India which, on February 16, 1963 recommended three alternatives for the acceptance of Kerala Government.
The first alternative thus recommended was that the officers allocated to Kerala from the former Madras State may be allowed the benefit of emer gency service towards seniority in the equated category if such service would have been regularised from the date of their emergency appointment and if it would have been count ed for interstate seniority on November 1, 1956, had these officers remained in Madras.
The second alternative was that the principles laid down by the Government of Madras in their order dated July 17, 1957 be accepted.
By the third alternative it was stated that the Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop gap or emergency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.
On May 10, 1963 the Government of Kerala passed an order adopting the first two alternatives but not the third.
The appellants thereafter field a writ petition in the Kerala High Court which was disposed of in December 1964 by directing them to file representations to the Government of India on the basis of a certain decision rendered by the High Court earlier.
The appellants accordingly made repre sentations and on.
those being rejected, they filed a writ petition in the High Court in August 1965.
That writ peti tion having been dismissed, they have filed this appeal by special leave.
941 The question which arises for decision is whether the services rendered by the appellants under rule 10(a) (i) (1) of the Madras State and Subordinate Services Rules must be taken into account for the purpose of fixing.
their seniori ty in the service of the Kerala Government as from November 1, 1956.
It is urged on behalf of the appellants that the aforesaid service ought to be taken into account because such service can be taken into account under rule 23, sec ondly because such service is not liable to be excluded by reason of the directives issued earlier by the Government of India and thirdly because if the appellants had remained in Madras, the temporary service rendered by them would have been taken into account for fixing their seniority.
Counsel for the appellants says that they were granted increments from the date of theft initial appointments, that the temporary service rendered by them was counted for the.
purpose of eligibility for promotion to the higher post of Assistant Engineers, that they were duly qualified to hold the post of Junior Engineers, that they were entitled and permitted to appear for departmental tests which are open only to the probationers, that their service books were opened from the data of their initial appointments, and that the concurrence of the Public Service Commission was ob tained for continuing them in service after the expiry of three months and then again after the expiry of one year.
These facts and circumstances, according to the appellants, would justify the counting of temporary service rendered by them for the purpose of fixing their seniority.
Having given every consideration to these matters we think it impossible to accept the appeal.
A fact of funda mental importance which permeates every one of these consid erations is that the appellants were appointed under rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules which runs thus: "10.
Temporary appointments. (a)(i)(1) Where it is necessary in the public interest owing to.
an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing au thority may temporarily appoint a person, otherwise than in accordance with the said rules.
" This provision contemplates the making of temporary appoint ments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately.
Such appointments, in terms, are permitted to made otherwise than in accordance with the rules.
The letters of appointment issued to the appellants mention expressely that they were appointed under rule 10(a) (i)(1), that the appointments were "purely temporary necessitated on account of the non availability of regularly selected candi dates conferring no claim for future appointment as Junior Engineers . and that the appointment is liable to be terminated at any time without previous notice.
" In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants Were appointed purely as a matter of stop gap or emergency arrangement.
Since 942 such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority.
Clause (iii) of rule 10(a) makes 'this position clearer by providing that a person appointed under clause (i) shall, whether or ' not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules.
The fact that the appellants were qualified to.
hold the posts cannot, there fore, entitle them to count for the purposes of seniority the period during which they served in a stop gap or emer gency arrangement.
Clause (v) of rule 10(a) provides that a person appointed under clause (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service .and that the services shall be liable to be terminated at any time without notice and without assigning any reason.
These provisions reflect significantly on the nature of the appointment held by the appellants and show that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly ever count for sen iority in any system of service jurisprudence.
It is now only necessary to consider the appellant 's argument that had they remained in Madras, their entire service would have counted for purposes of seniority.
In support of this argument reliance was placed on the corre spondence between the Governments of Kerala and Madras, but neither that correspondence nor a certain order dated June 11, 1960, which is at exhibit P 17 in the record, can avail the appellants.
In a way of saying, the proof of pudding is in the eating.
It is needless to speculate as to what course the appellants ' destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to.
them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appoint ment.
As stated earlier, the appellants were appointed initially in June 1951 and June 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July 1954 and March 1953.
This shows that the services rendered by the appellants under rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop gap, 'emergency or fortuitous arrangement.
The decision in C.P. Damodaran Nayar vs State of Kerala(1) on which the appellants ' counsel has placed reli ance for showing that temporary service of the kind rendered initially by the appellants can (1) ; 943 be counted for the purposes of seniority has no application to the instant case.
One of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951.
He was in continuous service in than post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing that the said date was assigned to him as the date of commencement of his continuous service.
Dealing with the appeal arising out of the dismissal of his writ peti tion, this Court held that the service rendered by the appellant after his initial appointment was neither emergen cy service nor was it a purely stop gap or fortuitous ar rangement.
The distinguishing feature of that case, which is highlighted in the judgment of the Court, is that the appellant therein was "appointed in a regular manner through the Public Service Commission" and therefore his appointment could not "by any stretch of imagination" be described as having been made to fill a purely stop gap or fortuitous vacuum (p. 876).
In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appel lants ' appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop gap arrangement.
The concurrence of the Public Service Commission to the continuance of the appel lants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selec tion by the Public Service Commission is required for any reason to be continued beyond three months or a year.
For these reasons we confirm the judgment of the High Court and dismiss this appeal.
There will be no order as to costs.
Civil Appeal No. 841 of 1974 will also stand dismissed but without an order of costs.
S.R. Appeals dis missed.
| IN-Abs | The three appellants, who were appointed as temporary junior engineers in the Madras High Way Subordinate Service under rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules on 13 6 1950, 6 6 1951 and 8 6 1951 respectively, on being selected by the Public Service Com mission and again appointed to the same posts were permitted by an order issued under rule 23(a) ibid to commence their probationary period with effect from 15 3 1953, 4th July, 1954 and 18th July 1954 respectively.
On 1 11 1956, on the re organisation of States, they were allotted as junior engineers in the Kerala State which was formed by inclusion therein of parts of the Slates of Madras and Travancore Cochin.
For the propose of fixing the interstate seniori ty, several orders were passed, from time to time, both by the Central Government and the Government of Kerala.
A provisional integrated gradation list of junior engineers was prepared by the State Government in October 1962 giving the appellants ranks therein at serial Nos. 123, 132 and 145 respectively.
On a representation by the employees of the Travancore Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Govern ment on 16 2 1963.
They were: (1) The Officers allocated to Kerala from the former Madras State may be allowed the benefit of emergency service towards seniority in the equated category if such service would have been regula rised from the date of their emergency appointment and if it would have been counted for interstate seniority on Novem ber 1, 1956 had these officers remained in Madras.
(2) The principles.
laid down by the Government of Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop gap or emer gency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.
The Government of Kerala passed an order on May 10, 1963 adopting the first two alternatives but not the third.
The writ petition filed by the appellants in the Kerala High Court challenging he said orders dated 10 5 1963 was rejected.
In appeal by special leave, the appellants contended: (1) The emergency service rendered under Rule 10(a)(i)(1) of the Rules ought to be taken into account because such service can be taken into account under Rule 23(a) ibid (ii) Such service is not liable to be excluded by reason of the directives issued earlier by the Government of .India on 3rd April 1957 and 1st March 1962, (iii) If the appellants had remained in Madras, the temporary service rendered by them would have been taken in.to account for fixing their seniority and (iv) Such service should count in view of the grant of increments to them from the date of their initial appointments in view of the temporary service rendered by them having been counted for the purpose of eligibility for promotion to the higher post of Assistant Engineers, they being duly qualified to hold the posts of Junior Engineers, they having been permitted to appear for departmental tests which are open only to the probationers, their service books having been opened from the. date of their appointment and the concurrence of the Public Service Commission having been obtained for continuing them in service after the expiry of three months and again after the expiry of one year of their emergency service.
938 Dismissing the. appeals, the Court, HELD: (1) A fact of fundamental importance which perme ates every one of these cOnsiderations is that the appel lants were appointed under rule 10(a) (i)(1) of the Madras State and Subordinate Services Rules.
In face of the provi sions of these rules and the express terms of their ap pointment, to the effect, "that appointments were under rule 10(a) (i) (1) purely temporary necessitated on account of the non availability of regularly selected candi dates, conferring no claim for future appointment as junior engineers and they were liable to be terminated at any time without previous notice", it is clear.
that the appointments were purely as a matter of stop gap or emergency arrange ment and such service cannot be taken into account for the purpose of seniority from the date of their initial appoint ment.
[941 E, H, 942 A] (2) Clauses (iii) and (iv) of rule 10(a) reflect signif icantly on the nature of the appointment held by the appel lants and show that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly even count for seniority in any system of service jurispru dence.
[942 C D] (3) The fact that the appellants were qualified to hold the posts cannot, in view of clause (iii) of rule 10(a) entitle them to count for the purpose of seniority the period during which they served in a stop gap or an emer gency arrangement.
[942 B] (4) The contention that if the appellants had remained in Madras their entire service would have counted for the purpose of seniority is without any merit and one of specu lation as to what course the appellants ' destiny would have taken had they remained in Madras.
The Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service.
Com mission, were quite subsequent to the dates of their initial appointment.
The services rendered by them under rule 10(a) (i)(1) were treated by the Government which appointed them as a matter of stop gap, emergency or fortuitous arrange ment.
[942 D G] (5) The concurrence of the Public Service Commission to the continuance of the appellants in the post filled by them, first after the expiry of three months and then after the expiry of one year was obtained not with a view to regularising the appointments but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to.
obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year.
[943 E F] (6) In the instant case, the initial appointment was not only made without any reference to the Public Service Com mission but the various rules and the terms of the appoint ment shove that the appellants were appointed purely as a matter of fortuitous or stop gap arrangement.
Their initial temporary services cannot therefore be counted for the purpose of seniority.
[943 B C] C.P. Damodaran Nayar vs State of Kerala ; , distinguished and held not applicable.
|
il Appeal No. 1919 of 1968.
Appeal by Special Leave from the Judgment and Order dated 15 12 1967 of the Mysore High Court in Writ Petition No. 1579 of 1966.
Shyamla (Mrs.) Pappu and E.K. Joseph for the Appellants R.B. Datar for Respondent No. 1.
N. Nettar for Respondent No. 2.
The Mysore State Road Transport Corporation is the appellant by special leave before us.
The first respondent, a conductor in the Mysore Government Road Trans port Department, had petitioned in the High Court under Article 226 against the appellant and the State of Mysore and asked it to quash an order of his dismissal, passed on 25 1 1961, in disciplinary proceedings taken against him at a time when he was a servant of the Mysore Government Road Transport Department.
The Government Department was abol ished on 1 8 1961.
But, before this event happened, the Mysore Government had sent notices to its employees on 23 6 61 proposing to transfer all those persons who were actually in its service on the date of issue of 927 these notices and had accepted offers of appointment as employees of the Corporation.
The first respondent, having been already dismissed for misconduct on 25 1 1961, was not the recipient of one of these notices to exercise an option.
In his writ petition, questioning the order of his dismissal, the first respondent had also asked for a decla ration that he had continued in service since the date of his suspension and commencement of disciplinary proceedings.
The High Court of Mysore merely quashed the dismissal order of 25 1 1961 and the order of suspension dated 23 7 1960.
It did not grant the declaratory relief asked for.
It observed: "It is further ordered that this is without prejudice to the holding of fresh enquiry if they consider the same necessary".
This order could not possibly amount to a declaration that the first respondent had con tinued in the service of either the Mysore Government or had become the servant of the appellant Corporation, a separate legal entity which came into existence by means of a Notifi cation under section 3 of the Road Transport .Corporations Act, 1950 (hereinafter referred to as 'the Act ').
As a separate legal entity, the Corporation could not be said to have stepped automatically into the shoes of the Mysore Road Transport Department.
No. provision of the Act or rules made thereunder has been shown to us which could have that effect.
The first respondent, however, relied upon a Notification under section 34 of the Act which contains, inter alia, clause 3 which preserves: "(3).
All rights and liabilities which have accrued or are incurred or which may accrue or may be incurred under any contract made by the State Government or by any Officer of the Road.
Transport Department, excepting the Bangalore Transport Service Division prior to the First August 1961, which would have been the rights and liabili ties of the Corporation.
" He also cites another Notification which reads as follows : "1.
The employees of the Mysore Govern ment Road Transport Department who have opted to serve under the Corporation in pursuance of the Notices issued to them by the Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(2)(c) of the Road Transport Corpo rations Act, 1950 and also subject to the following conditions, namely : (a) The transfer of the service of the employees of the Mysore Government Road Trans port Department to the Corporation shall not amount to interruption of service and shall not entail any loss of seniority previously held by such employees.
(b) The terms and conditions of service applicable to such transferred employees including those relating to 928 Provident Fund, Gratuity and other benefits shall not in any way be less favourable than those applicable to them immediately before the transfer.
(c) Benefits regarding leave and other conditions of service available to such trans ferred employees immediately before the transfer shall be continued.
(d) In the event of retrenchment of such transferred employees, in determining the retrenchment compensation, if any, length of service rendered by such transferred employees before the transfer shall also be considered.
(e) Changes in the conditions of service of the transferred employees shall not be effected to their disadvantage without the prior approval of the Government.
In respect of all disciplinary proceed ings or appeals arising therefrom pending immediately before 1st August, 1961, the Corporation or such Officer or Officers as may be designated by it shall be the disciplinary authority competent to pass appropriate orders in accordance with the relevant rules ap plicable to them before the transfer.
" It is clear that the last mentioned notification could apply only to those persons who, on 1 8 1961, had already exercised an option to serve under the Corporation in pursu ance of notices issued to them.
It makes no provision for persons to whom, for any conceivable reason, no notice had been issued.
Neither the Act nor the two notifications section 34(1) of the Act mentioned above contained any provisions which could entitle an employee of the Mysore Government Road Transport Department to get a notice automatically.
It appears that the notices were issued only in exercise of the executive power of the Government.
Clause (7) of one of the two notifications of 1 8 1961 laid down: "(7) The members of the staff of the Mysore Government Road Transport Department, excepting those who are serving in connection with the affairs of the Bangalore Transport Service Division, who have opted to serve under the Corporation with effect from 1st August, 1961, in response to the notice issued to them by Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(ii)(c) of the Road Transport Corporations Act and subject to such assurances as have been given to them by Government in their notice No. HD 8 TRC 60 dated 23rd June 1961.
" This provision also relates to persons who had already exercised options under notices issued to them already.
It may be that there was a lacuna in the rules or in the Act so that cases like those of the first respondent were not provided for at all in the Act or in the rules.
929 Learned counsel for the first respondent relied strongly on section 34 of the Act which lays down as follows : "34(1).
The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, condi tions of service and training of its employ ees, wages to be paid to the employees, re serves to be maintained by it and disposal of its profits or stocks.
(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub section ( '1) except with the previous permission of the State Government.
" This section enables only general directions to be given.
When the first respondent applied in the High Court for another writ or direction under Art 226 in 1966, the High Court seems to us to have over stepped the limits of mere interpretation of application of the law and to have in dulged in what is nothing short of legislation.
The High Court directed the State Government to serve a notice call ing upon the first respondent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporation in the same way in which other employees of the Transport Department of that State had been asked to exercise their options.
The High Court observed : "It is clear that the State Government were under a duty to make available to him that option when the order by which he was illegally dismissed was set aside.
Government are therefore, in our opinion, right in making available to the petitioner that option at least now.
We, therefore, issue a direction that that option will be made available to the petitioner within fifteen days from this date".
We also find that, after proceedings under the Contempt of Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25 1 61, the date of a dismissal which was declared to be illegal by the High Court, and 1 8 61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation.
The State Government owed no duty to the first respond ent to pay him after its transport department was wound up.
No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so.
We do not know what option the State Government has given to.
the first respondent after the writ petition was filed.
If it had already given any option to him, there was no point in directing it to give another option.
In order to compel the Corporation to do anything, as already indicated, only a general direction section 34 of the Act, set out above, could be given by the Government.
There neither could be a 930 specific direction with regard to a particular case nor was any specific direction given by the Government for any such case.
The High Court could not take upon itself the power to fill any gap in the provision of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was under any kind of obligation to do.
The High Court could not give a spe cific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules.
We can find no justification at all for such assump tion of powers by the High Court.
Mrs. Shyamla Pappu learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation vs Krishna Rao & Anr.(1), where this Court held as follows : It is quite clear the employees of the Bangalore Road Transport Service of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dholakia vs The Scindia Steam Navigation Co. ; , or automatically, become the employ ees of the Corporation.
The Corporation was directed to take over only those of the em ployees who opted for its service and to give to them the same terms and conditions as were enjoyed by them while in the service of the Mysore Government.
Thus, the condition prece dent of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1951, was the giving of the option to him and his exercise thereof.
There is no dispute that Respondent 1 was not given the notice of option, presumably because, rightly or wrongly, he was not re garded as having been in the service of the Government 's Road Transport Service immediate ly before the Corporation came into being.
It cannot also be disputed that he never asked for a notice of option on the ground that he continued to be in that service.
That he did not in fact exercise the option is an accepted fact.
That being so, it cannot be said that under the said notification the Corporation was required to have him as its employee or that his service was transferred to the Corpo ration thereunder, the condition precedent to such employment or transfer not having been complied with." This Court also held there: In our view, the Labour Court could not, on the position stated above, treat him as the Corporation 's employee and on that footing grant him the relief which it did.
Once it is found that he did not become the Corpora tion 's (1) C.A. No. 1720 of 1967 given on 6 8 1969.
931 employee, the Corporation could not be held liable to pay him the wages for the period from March 6, 1960, to April 19, 1962.
" The case cited by Mrs. Pappu arose out of a claim under section 33(c)(2) of the , but the views .expressed there accord with ours.
We re spectfully adopt the same reasoning.
Indeed, in the case now before us, the Corporation 's legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted.
That relief would, therefore, be deemed to have been refused.
The first respondent did not himself go up in appeal against that decision.
He cannot claim such a relief in the subsequent writ petition now before us.
The facts set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the.
Government.
It may be that the effect of the High Court 's order, setting aside the dismiss al, .was that the stigma .of dismissal was removed from the record of the first respondent.
Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up.
The most he could say was that he was not dismissed.
The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.
Consequently, we allow this appeal, set aside the judgment and order of the High Court.
The parties will bear their own costs.
S.R. Appeal alllowed.
| IN-Abs | Respondent 1, a conductor of the Mysore Government Road Transport Department was dismissed.
for misconduct on 25 1 1961.
The legality of the said dismissal order was questioned in the High Court under article 226 with a further prayer to declare that he had continued in service since the date of his suspension and commencement of disciplinary proceedings.
The High Court allowed the writ petition on 11 9 1964 and quashed the dismissal order with an observa tion viz. "It is further ordered that this is without preju dice to the holding of fresh enquiry if they consider the same necessary".
On 1 8 1961.
the Road Transport Corpora tion was constituted and the Government Road Transport Department was abolished.
Such of the employees who had exercised their option as per the notice dated 23 6 1961, were taken over by the appellant corporation.
The re spondent No. 1 was not given the option as he was dismissed by that date.
On a complaint under the.
Contempt of Courts Act against respondent 2 and the appellant, that there was disobedience to the order of the High Court dated 12 9 1964, the respondent 1 was paid ,,he salary by the State Govern ment for the period 25 1 1961 to 31 7 1971.
Since he was not paid back salary and allowances and also the salary due from 1 8 1961, the respondent filed a writ petition No. 1579/66 which was again allowed.
On a concession made by the counsel for the State Government that the State Govern ment was willing to make available to the petitioner an option to become an employee of the appellant corporation, the High Court held: "Notice shall be in the same form in which it was served on other employees and with a month 's time to exercise his option.
If he exercises his option to become an employee of the corporation the petitioner will have all.
the benefits.
such as continuity in service, seniority, the benefit of the old conditions of service applicable in Mysore Government Road Transport Department.
The petitioner will also be entitled to the salary for the period ' between August 1, 1961 and the date of his appoint ment as an employee of the corporation".
On appeal by special leave by the corporation, the Court, HELD: (1) The order of the High Court dated 11 9 1964 could not possibly amount to a declaration that the first respondent had continued in the service of either the Mysore Government or had become the servant of the appellant corpo ration, a separate legal entity which came into existence by means of a Notification under section 3 of the Road Transport Corporation Act, 1950.
As a separate legal entity the corpo ration could not be said to have stepped automatically into the shoes of the Mysore Road Transport Department, there being no provision of the Act or Rules made thereunder to that effect.
[927 A D] (2) The declaratory relief asked for not having been granted, that relief would be deemed to have been refused.
Failure to go in appeal against that decision operates as a bar for claiming such a relief in the subsequent writ petition.
[931 B] (3) The effect of the High Courts ' order setting aside the dismissal was that the stigma of dismissal was removed from the record of the first respondent.
The winding of the department on the facts of the case, operates as the discharge of the respondent.
The respondent cannot be deemed to be the corporation 's employee inasmuch as he has not exercised any option nor did be ask for a notice of option in the original writ petition filed by him.
[931 D E] 926 Mysore State Road Transport Corporation vs A. Krishna Rao & Anr., C.A. No. 1720 of 1967 S.C. decided on 6 8 1969, followed.
(4) Neither the Act nor the two notifications under section 34(1) of the Act contain any provision.
which could entitle an employee of the Mysore Government Road Transport Depart ment to get a notice automatically.
The notifications could apply only to those persons who, on 1 8 1961 had already exercised an option to serve under the corporation in pursu ance of notice issued to them.
It makes no provision for persons to whom for any considerable reason, no notice has been issued.
[928 D F] (5) When the first respondent applied in the High Court for another writ or direction under article 226 in 1966, the High Court over stepped the limits of mere interpretation or application of the law and indulged in what is nothing short of legislation by directing the State Government to serve a notice calling upon the first respondent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporation in the same way in which other employees of the Transport Department had been asked to exercise their option.
[929 C E] (6) The State Government owed no duty to the first respondent to pay him after transport department was wound up in the absence of any contract 10 show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the corporation to do so.
[929 G H] (7) In order to compel the corporation to do anything only a general direction u/s 34 of the Act could be given by the Government.
There neither could be a special direction with regard to a particular case nor was any special direction given by the Government for any such case.
The High Court could not take upon itself the power to fill any gap in the provision of the.
Act, even if there be one, and compel the Government to perform a function which the Gov ernment was not under any kind of obligation to discharge.
The High Court could not give a specific direction to make a provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules.
There is no justification at for such assumption of powers by the High Court.
[929 H, 930 A B]
|
iminal Appeal No. 97 of 1953.
Appeal under Article 134(1)(c) of the Constitution from the judgment and order dated the 15th June 1953 of the Travancore Cochin High Court in Criminal Appeals Nos. 54, 55, 56, 58 and 79 of 1952.
section Mohan Kumaramangalam and section Subramaniam, for the appellants.
Sardar Bahadur, for the respondent.
December 15.
The Judgment of the Court was delivered by BOSE J.
This is a case of rioting in which two police constables were killed.
Thirty one persons were put up for trial.
The learned Sessions Judge acquitted twenty one of them on all the charges and acquitted the remaining ten of the most serious charge of all, namely the offence falling under the sections of the Travancore Penal Code which correspond to section 302 of the Indian Penal Code read with section 149.
But she convicted them on several of the lesser charges and imposed sentences ranging from two to five years on each count and directed that the sentences should run consecutively except in the cases of accused 5 to 8 and 18.
She sentenced each of them on only one count and so there was only one sentence.
The convicts appealed to the High Court and the State of Travancore Cochin also appealed against the acquittals on the murder cum rioting count.
The High Court dismissed the appeals made by the ten accused and allowed the appeals ,against the acquittals and imposed the lesser sentence 1059 of transportation in each case.
These ten accused now appeal here.
The accused are said to be communists.
Two of them, namely numbers 30 and 31, were arrested on 27 2 1950 at about I P.m. and were confined in the Edappilly police lock up.
The prosecution case is that the other 29 accused entered into a conspiracy to release their comrades and in pursuance of that conspiracy attacked the police station at about 2 A.M. on the 28th armed with deadly weapons such as choppers, knives, bamboo and other sticks and a dagger.
Two police constables, Mathew and Velayudhan, were killed in the course of the raid.
The first point taken before us is that the charge is not according to law and has prejudiced the appellants in their defence.
The complaint on this score is that each accused has not been told separately what offences he is being tried for.
They have all been lumped together as follows: "The aforesaid offences having been proved by the evidence adduced by the prosecution, you the accused 1 29 have committed offences punishable under . . . . . . " and then follow a string of ten sections of the Travancore Penal Code.
We are satisfied that the charge neither caused, nor could have caused, prejudice.
The body of the charge set out the fact that the accused 1 29 formed an unlawful assembly and stated the common object; and then the charge specified in detail the part that each accused had played.
In the circumstances, each accused was in a position to know just what was charged against him because once the facts are enumerated the law that applies to them can easily be ascertained; and in this particular case it was just a matter of picking out the relevant sections from among the ten mentioned.
There is nothing in this objection; section 225 of the Criminal Procedure Code expressly covers this kind of case.
The next argument was that the examination of each accused under section 342 of the Criminal Procedure Code was defective and that that caused pre 1060 judice.
We agree that the examination was not as full or as clear as it should have been but we are not satisfied that there was any prejudice.
It is to be noted that the question of prejudice was not raised in either of the Courts below nor was it raised in the grounds of appeal to this Court.
The point was taken for the first time in the arguments before us and even there counsel was unable to say that his clients had in fact been prejudiced , all he could urge was that there was a possibility of prejudice.
We agree that the omission to take the objection in the grounds of appeal is not necessarily fatal; everything must depend on the facts of the case; but the fact that the objection was not taken at an earlier stage, if it could and should have, been taken, is a material circumstance that will necessarily weigh heavily against the accused particularly when he has been represented by counsel throughout.
The Explanation to section 537 of the Criminal Procedure Code expressly requires the Court to "have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings".
Another strong circumstance is this: the petition for appeal does not set out the questions that, according to the appellants, they should have been asked nor does it indicate the answers that they would have given if they had been asked.
Again, though that is not necessarily fatal ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches.
It is true that in certain exceptional cases prejudice, or a reasonable likelihood of prejudice, may be so patent on the face of the facts that nothing more is needed; but that class of case must be exceptional.
After all, the only person who can really tell us whether he was in fact prejudiced is the accused; and if there is real prejudice he can at once state the facts and leave the Court to judge their worth.
But if the attitude of the accused, whether in person or through the mouth of his counsel, is: "I don 't know what I would have said.
I still have, 1061 to think that up.
But I might have said this, that or the other", then there will ordinarily be little difficulty in concluding that there neither was, nor could have been, prejudice.
Here, as elsewhere, the Court is entitled to conclude that a person who deliberately withholds facts within his special knowledge and refuses to give the Court that assistance which is its right and due, has nothing of value which he can disclose and that if he did disclose anything that would at once expose the hollowness of his cause.
The purpose of section 342 is set out in its opening words "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him".
If the accused is not afforded that opportunity, be is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked.
In other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact, to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along.
But if he does not ask this in the last Court of fact he is in little better position when the case comes here than be would be in had he, say, omitted to call, in his defence, a witness who, he says, would have deposed in his favour.
In very exceptional cases be might be allowed to call such a witness even at such a stage, but if he does not ask for that when his case is under appeal he would normally have but slender hope of succeeding here.
It is true he is in a stronger position when section 342 is in question because the section places a solemn and serious duty on the Court, and the accused can very rightly and properly complain if the Court fails to do its duty; but when all is said and done, he cannot claim to be placed in a better position than he would have been in bad the Court discharged its duty at the outset.
Therefore, all he is entitled to say on appeal is, "I was not asked to explain this matter, Here is my explanation; this is 1062 what I would have said: please consider it".
But if he does not take up that position at the appellate stage and complains of prejudice for the first time here, the inference is strong that the plea is an afterthought and that there was no real prejudice.
However, as the true meaning of "prejudice" in section 537 and other sections of the Code is not yet properly appreciated, probably for want of an authoritative decision by this Court, we invited counsel to tell us what questions his clients should have been asked and at any rate to indicate what, according to him, they might reasonably have said.
His main grievance on this score is that none of the appellants has been asked about the common object and he said it is obvious that most of them could very reasonably have said that they bad no idea that it was murder and that they did not even know that any of the members of the assembly carried lethal weapons.
It is necessary at this stage to explain that both courts find that there was an unlawful assembly and that the police station at Edappilly was raided and that arms and ammunition and some of the station records were carried away by the raiders; also that two of the police constables who were on sentry duty were murdered.
The only point on which they differ is about the common object.
The charge set out that the common object was to rescue the 30th and 31st accused by force and to murder the policemen on duty as well as to loot the records, arms and ammunition of the police station.
The learned Sessions Judge found, mainly because of a concession made by the Public Prosecutor, that the common object could not be placed higher than that of rescue despite the fact that some of the members were armed with deadly weapons; accordingly she (for the learned Sessions Judge was a lady) acquitted all the accused of the charge under section 302 of the Indian Penal Code read with section 149, or rather under the corresponding provisions of the Travancore Penal Code.
The State appealed against these acquittals and 1063 the High Court thereupon convicted on the murdercum rioting charge and imposed the lesser sentence.
The convicts also appealed but their appeals were dismissed.
In view of the admission made by the learned Public Prosecutor we do not think the High Court was justified in holding that the assembly bad the common object to murder but we do not think that that makes any difference to the result.
Even if it be assumed that the common object was only to rescue the two accused who were in the lock up, it is obvious that the use of violence was implicit in that object.
People do not gather together at the dead of night armed with crackers and choppers and sticks to rescue persons who are guarded by armed police without intending to use violence in order to overcome the resistance of the guards; and a person would have to be very naive and simple minded if he did not realise that the sentries posted to guard prisoners at night are fully armed and are expected to use their arms should the need arise; and he would have to be a moron in intelligence if be did not know that murder of the armed guards would be a likely consequence in such a raid; and what holds good for murder also holds good for looting in general.
Now section 149 applies not only to offences actually committed in pursuance of the common ob ject but also to offences that members of the assembly know are likely to be committed.
It would be impossible on the facts of this case to hold that the members of the assembly did not know that murder was likely to be committed in pursuance of a common object of that kind by an assembly as large as the one we have there.
Accordingly, even if the common object be not placed as high as murder the conviction on the murder cum riotiNg charge was fully justified.
,,, This answers the main ground of appeal.
But to go back to the argument about section 342 of the Criminal Procedure Code.
What we have to assess here is the explanation which counsel says each appellant could reasonably have given in the trial Court if he had been asked for one, namely that 1064 he did not know that any member of the assembly carried lethal weapons and that murder was likely to result.
The answer to that is plain.
There is nothing to indicate that the appellants are deficient in intelligence and understanding, and if they are judged by the standard of men of reasonable intelligence, as they must be, then an explanation of this kind cannot be believed.
Men who band themselves together to rescue persons locked behind prison bars and guarded by armed police do not set out with bare hands and doves of peace; of course, they arm themselves with implements that are strong enough to break open locks and break down doors and iron bars and it is obvious that implements of this kind can be used with deadly effect should the need and the desire to use them in that way arise.
It hardly matters whether each member knew the exact nature of the implements, namely that some had choppers and some sticks.
It is enough that they knew that instruments that could be used as deadly weapons would necessarily have to be carried if the purpose underlying the common object was to be achieved.
Therefore, even if the answer now suggested to us bad been given in the trial Court it would have made no difference to the result.
Turning next to the first accused, counsel said that he was not asked about identification in his examination under section 342.
But that is not correct.
The question put was "P.Ws. 1 and 4 say that they had seen you, beating constables Mathew and Velayudhan, etc.
" The point about identification is implicit in this question and we are satisfied that this appellant understood what the question imported because the cross examination of these witnesses discloses that the question of identity was present to the mind of the cross examiner; he specifically questioned each witness about the matter.
Next, it was said that no question was put to the first accused about any robbery, but we need not examine this any further because the matter becomes academic once the murder cum riot conviction is up 1065 held and once we make the sentences concurrent instead of consecutive as we intend to do.
The arguments on this point about the rest of the appellants except the seventh accused, followed the same pattern and we need not examine them separately.
, As regards the seventh accused, the only point of substance in his case is that he was not asked to explain his presence at Kadiparambu where the agreement to rescue and the planning are said to have taken shape.
Counsel said that this accused lives there, so the mere fact that he was seen among a crowd that had gathered there in the day time could not be regarded as a circumstance of suspicion.
That would have had force had it not been for the fact that he was again seen at the police station at 2A.M. and was identified as one of the rioters who took an active part in the raid.
We have gone into the question of possible prejudice under section 342 in the way we have because, as we have said, appellants do not appear to appreciate what is necessary when this kind of plea is raised.
We do not intend to lay down any hard and fast rule but we do wish to emphasise that what we have done in this case is not to be regarded as a precedent and that in future it will be increasingly difficult to induce this Court to look into questions of prejudice if the requisite material is not placed before it and if appellants deliberately withhold from the Court assistance which it is in their power to render; an inference adverse to them must be expected if that attitude is adopted.
Counsel then tried to attack the credibility of the witnesses and the correctness of the findings generally but, following our usual practice, we decline to interfere with concurrent findings of fact where there is ample evidence which, if believed, can be used in support of the findings.
That is the position here.
The only ground on which interference is called for is where the sentences were directed to run consecutively.
The High Court confirmed the convictions and sentences passed by the learned Sessions Judge 1066 but when it allowed the appeal by the State and passed the lesser sentence it said that "the sentences passed on each accused will run concurrently".
We are not sure whether the learned Judges meant that the sentences imposed by them should run concurrently with the others or whether they meant to allow the appeal to that extent.
, In order to remove all doubts, we allow the appeal to the extent of directing that the sentences imposed on each accused shall run concurrently and not consecutively.
Except for that, the appeal is dismissed.
| IN-Abs | The appellants were put up for trial along with others before the Court of Sessions.
The charge against them set out the fact that they formed an unlawful assembly, stated the common object specifying in detail the part each accused had played and then gave a list of ten sections of the.
Travancore Penal Code including sections which correspond to section 302 of the Indian Penal Code read with section 149.
The Sessions Judge acquitted them under section 302 read with section 149 but convicted them on the lesser charges.
They appealed to the High Court against their convictions and the State appealed against their acquittals under section 302 read with section 149.
The High Court dismissed their appeals and allowed the appeals against their acquittals and sentenced each of them to transportation for life.
It was contended on their behalf that the charge was not in accordance with law and their examinations under section 342 of the Code of Criminal Procedure were defective and prejudiced them.
Held, that the charge framed was a legal one and was expressly covered by section 225 of the Code of Criminal Procedure.
Each of the accused was apprised of the facts alleged against him and he could easily pick out the relevant sections under which he was charged.
There could, therefore, be no prejudice to any one of them.
Held further, that as no objection was taken to the defective examination under section 342 of the Code of Criminal Procedure at an earlier stage although the accused were represented by counsel, and as the petition of appeal did not set out the questions the court should have put to them and the answers they would have given and as they thereby withheld from the court facts which were within their special knowledge, the court was entitled to draw an adverse conclusion against them and hold that no prejudice had been caused to them.
That when an accused person is not properly questioned under section 342 so as to enable him to explain the circumstances appearing in the evidence against him he is entitled to ask the appellate Court, which is the ultimate court of fact, to place him in the same position 1058 he would have been in if he had been properly questioned and to take the explanation he would have given, if he had been asked, into consideration when weighing the evidence in just the same way as the court would have done if the explanation had been there all along.
But he cannot ask to be placed in a better position than he would have been in if the court had done its duty from the start.
Therefore, when complaining of prejudice he must set out the questions he should have been asked and indicate the answers he would have given.
|
ivil Appeal Nos.
231.0 & 1826 of 1968.
(From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh High Court in Misc.
First Appeals Nos. 219 and 220 of 1965) and Civil Appeal No. 132 of 1969 (From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh.
High Court in Misc.
First Appeal No. 203 of 1965).
G.L. Sanghi, Talat A nsari, R.K. Sanghi and K.J. John.
In CAs.
132/69 & 1826/68 for the Appellant in 132 & in 1826/ 68.
G.S. Chatterjee & D.P. Mukherjee. for Respondents 1 3. 1.
N. Shroff & H.S. Parihar for Respondent No. 8.
H.K. Puri and A.G. Ratnaparkhi. for Respondent No. 6 for Respondents 9 to 11.
G.S. Chatterjee & D.P. Mukherjee, in CA No. 2310 of 1968 for the appellants.
G.S. Sanghi, Talat Ansari, R.K. Sanghi and K.J.John for respondent No. 1.
H.S. Parihar & 1.
N. Shroff for respondent No. 3.
H.K. Puri for respondent No. 4.
The Judgment of the Court was delivered by FAZAL ALI, J.
With the emergence of an ultra moderd age which has led to strides of progress in all spheres of tile, we have switched from fast to faster vehicular traffic which has come as a has boon to many, though some times in the case of some it has also 946 proved to be a misfortune.
Such are the cased of the victims of motor accidents resulting from rash and negligent driving which take away quite a number of precious lives of the people of our Country.
At a time when we are on the way to progress and prosperity, our country can iII afford to lose so 'many precious lives every year, for though the percentage of deaths caused by motor accidents in other countries is high, in our own country the same is not by any means negligible, but is a factor to be reckoned with.
Our lawmakers being fully conscious of the expanding needs of our nation have passed laws and statutes to minimise motor accidents and to provide for adequate compensation to the families who face serious socio economic problems if the main bread earner loses his life in the motor accident.
The time is ripe for serious consideration of creating no fault liability.
Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nationalisation of bus transport, the law of torts based on no fault needs reform.
While section 110 of the Motor Vehicles Act provides for the constitution of Claims Tribunals for determining the compensation payable, section 110 A provides for the procedure and circumstances under which the family of a victim of a motor accident can get compensation and lays down the var ious norms, though not as exhaustively as it should have.
The Courts, however, have spelt out and enunciated valuable principles from time to time which guide the determination of compensation in a particular situation.
Unfortunately, however, section 95(2)(d) of the Motor Vehicles Act limits the compensation to be paid by an Insurance Company to Rs. 2,000/ only in respect of death to any third party and this is one disconcerting aspect on which we shall have to say something in a later part of our judgment.
With this little preface we now take up the facts in the appeals by certificate filed by B.L. Gupta and Smt.
Manjus hri Raha in this ' Court, and which after being consolidated have been disposed of by one common judgment both by the Claims Tribunal as also by the High Court.
Manjushri Raha, the main appellant in Civil Appeal No. 2310 of 1968 will, in short, be referred to hereafter aS "Raha", whereas respond ents Oriental Fire & General Insurance Company would be referred to as "Oriental Company" and the New India Insur ance Company as "New India Company".
Manjula Devi Bhuta representing the owner of vehicle No. MPG 4615 will be referred to as "Bhuta", whereas B.L. Gupta the owner of vehicle No. MPG 4307 belonging to the M.P. Speedways Company would be referred to as "Gupta".
Padmavati Shastri, the respondent in one of the appeals, would be referred to as "Shastri".
The appeals arise in the following circum stances.
Claim Case No. 6 of 1962 was filed by Raha along with her two minor children against Bhuta, Sushil Kumar driver of vehicle No. MPG 4615, Oriental Company, New India Company, Gupta owner of the M.P. Speedways Company and Ram Swaroop driver of vehicle No. MPG 4307.
The applicant Raha claimed compensation for a 947 sum of Rs. 3,00,000/ against the respondents Under section 110 A of the Motor Vehicles Act.
Similarly Shastri filed Claim Case No. 5 of 1962 against the respondents mentioned above claiming Rs. 1,20,000/ as compensation from the aforesaid respondents.
Both these claims were consolidated and heard and decided by one common judgment by the Claims Tribunal, Gwalior.
The facts giving rise to the claims of Raha and Shastri were that on April 10, 1962 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No. MPG 4397 (owned by Gupta of the M.P. Speedways Company) from Bhind to TM Gwali or.
When the bus travelled a distance of about 26 miles on the Bhind Gwalior road another bus bearing No. MPG 4615 belonging to Bhuta was seen coming from the opposite direc tion.
The driver of the M.P. Speedways Company was Ram Swaroop while that of the bus belonging to Bhuta was Sushil Kumar.
When the two buses were approaching in opposite directions, both the drivers being negligent and having failed to take the necessary precautions of keeping to their left led to a head on collision of the two buses as a conse quence of which the two persons, namely, Satyendra Nath Raha and Uma Shanker Shastri sustained fatal injuries to which they succumbed on the 'same day in the Gohad Hospital.
The facts and circumstances under which the accident took place have not been disputed by counsel for the parties, nor have the essential findings of fact given by the Claims Tribunal and the High Court been challenged before us.
The appeal, therefore, lies within a very narrow compass.
But before dealing with the appeals, it may be necessary to indicate the reliefs granted by the Claims Tribunal to the parties concerned.
The Claims Tribunal decreed the claim of Raha to the extent of Rs. 60,000/ only against all the respondents holding that the drivers of both the buses were negligent.
The claim of Shastri was decreed only to the extent of Rs. 40,000/ against Bhuta, Sushil Kumar driver and Oriental Company.
No decree was passed against Ram Swaroop driver of the M.P. Speedways Company and New India Company because there was no allegation of negligence against these persons in the claim flied by Shastri.
Against the decision the Claims Tribunal, Gupta field Miscellaneous First Appeal No. 203 of 1965 against Bhuta, Raha and others which was dismissed by the High Court.
Civil Appeals Nos.
1826 of 1968 and 132 of 1969 in this Court arise out of the aforesaid appeal before the High Court.
Miscellaneous First Appeal No. 219 of 1965 was filed by Bhuta against Raha, Gupta and others which was also dismissed by the High Court, but Bhuta has not filed any appeal to this Court against the decision of the Tribunal and the High Court in that appeal.
But Bhuta had flied an appeal in the High Court being Miscellaneous First Appeal No. 220 of 1965 against Shastri which was allowed by the High Court to this extent that the decree against Gupta and Ram Swaroop was made joint and several along with the appel lant Bhuta.
Miscellaneous First Appeal No. 222 of 1965 was flied before the High Court by Oriental Company against Shastri but that was also dismissed.
Similarly Miscellane ous First.
Appeal No. 223 of 1965 was flied before the High Court by Oriental Company against Raha which was also dis missed along with the cross objection 948 which was filed by Raha for enhancement of the compensation.
The High Court, however, held in Miscellaneous First Appeal No. 223 of 1965 that Oriental Company was to pay a total compensation of Rs. 20,000/ out of which Rs. 8,000/ was to be paid to Shastri and Rs. 12,000/ to Raha.
The present appeals in this Court have been filed by Gupta and Raha.
Neither Shastri, nor Bhuta, nor any of the Insurance Companies have filed any appeal before this Court.
The short point raised by Mr. Sanghi appearing for Gupta was that in the circumstances the compensation awarded by the Claims Tribunal to Raha was too high and at any rate the High Court ought not to have made the appellant Gupta liable jointly and severally with others.
In the appeal filed by Raha it is claimed that the compensation granted by the Claims Tribunal was grossly inadequate and should be enhanced.
It has been stated before us by Mr. Sanghi, though not admitted by the other side, that Gupta and the Insurance Companies have paid a total amount of Rs. 29,000/ (Rs. 15,000/ by Gupta and Rs. 14,000 by insurance Companies) in full and final settlement of the claim of Raha and, there fore, the appeal should be decreed in terms of the compro mise.
It was further contended that even if the amount awarded by the Claims Tribunal to Raha is enhanced that should be payable by Bhuta alone and not by the appellant Gupta, who has settled the claim with the appellant Raha.
There can be no doubt that if really a settlement has been reached between Gupta and Raha then no further decree can be passed as against Gupta.
The appellant further undertook to pay Rs. 10,000/ to Shastri in fulfilment of her claim.
As Rs. 10,000/ has already been paid to Shastri with the result that Bhuta has yet to pay Rs. 20,000/ being her share to Shastri.
Finally, it was contended that as there was no allega tion of negligence against Ram Swaroop the driver of the M.P. Speedways Company the High Court ought not to have decreed the c1aim of Raha against the appellant Gupta.
We have perused the plaint before the Claims Tribunal, which is rather loosely drafted, but it clearly contains the relief of compensation even against Gupta and Ram Swaroop driver.
The High Court has pointed out that even though there is no clear plea of negligence in the claim of Raha, the facts alleged and proved in the case dearly show that Ram Swaroop the driver of the M.P. Speedways Company was both rash and negligent.
Pleadings have to be interpreted not with forma listie rigour but with latitude or awareness of low legal literacy of poor people.
We fully agree with the finding of the High Court and see no reason to disturb it.
We also agree with the order of the High Court by which it makes Gupta and Bhuta jointly and severally liable.
That was the only decree which could have been passed in the circum stances.
Coming now to the 'appeal filed by Raha, counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is grossly inadequate and certain important factors have not been taken into consideration.
On a perus al of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Satyen 949 dra Nath Raha would have got upto the age of 55 years which has been taken at Rs. 1,20,000/ and after deducting half which would normally have been spent, the actual income lost to the family was Rs. 60,000/ .
It seems to us, however, that in making the calculation, the Claims Tribunal and the High Court overlooked two important and vital considera tions.
In the first place, while the admitted position was that the deceased Satyendra Nath Raha was working in the grade of Rs 590 30 830 35 900 and was getting a salary of Rs. 620/ p.m. at the time of his death, the Courts below have not taken into account the salary which he would have earned while reaching the maximum of his grade long before his retirement.
It is admitted that the deceased Satyendra Nath Raha was 37 years of age at the time of the accident and at this rate he would have reached the maximum of the grade of Rs. 900/ at the age of 46 years i.e. full 9 years before his superannuation.
The claimant has produced a certificate Ext.
P 4 from the office of the Accountant General, Madhya Pradesh, Gwalior, which shows that from April 11, 1962 (i.e. the date next to the date of the death of Satyendra Nath Raha) to October 15, 1980 which would be the last working day of the deceased Raha, the deceased Raha would have drawn Rs, 1,89,402 including the increments earned and the maximum grade drawn.
This figure may be rounded off to Rs. 1,88,000/ .
Even if half of this be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of incometax and other charges, the actual income lost to the family including the value of the estate and the loss to.
the dependents would be Rs. 94,000/ .
This will be a fair estimate which does not take into account the economic value of the deprivation to the wife of her husband 's company for ever and the shock felt by the children.
It was suggested by the High Court that as the deceased Raha was not a perma nent employee, the amount taken into account by the Compen sation Tribunal was correct.
This is, however, not a con sideration which could have weighed with the Claims Tribunal in making the assessment because it was purely contingent.
On the other hand with the rise in price index it could well have been expected that there would be several revisions in the grade by the time the deceased Raha had attained the age of superannuation, which, if taken into account, would further enhance the amount.
In these circumstances, there fore, we think that the amount of Rs. 90,000/ would represent the correct compensation so far as the salary part of the deceased Raha is concerned.
The Courts below have also not considered the effect of the.
pensionary benefits which the deceased Raha would undoubtedly have got after retirement, and in fact the Claims Tribunal has restricted the span of the life of the deceased only to the age of 55 years i.e. the age of super annuation, whereas in the present economic conditions the life of an average Indian has increased more than two fold.
It is, therefore, reasonable to expect that if the deceased had not died due to accident, he would have lived up at least upto the age of 65 years, if not more, so as to earn the pensionary benefits for 10 years after retirement.
According to the certificate Ext.
P 4 the deceased Raha would have been entitled to a monthly pension of Rs. 337 50 which 950 would mean about Rs. 4,050/ per year.
There can be no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate.
The certif icate Ext.
P 4 further shows that the deceased Raha would have got death cum retirement gratuity to the extent of Rs. 13,500/ calculated on the basis of the presumptive aver age emoluments and presumptive last emoluments.
If the deceased had lived after superannuation, he might probably have got this amount.
After adding this amount of Rs. 13,500/ to.
Rs. 90,000 the total amount would come to Rs. 1,03,500/ which may be rounded off to roughly Rs. 1,00,000/ .
In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1,00,000/ , and the Courts below erred in completely over looking these two important aspects which we have dis cussed.
It appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insur ance Companies, but unfortunately the Motor Vehicles Act has taken a very narrow view by limiting the liability of the Insurance Companies under section 95 (2) (d) to Rs. 2,000/ only in case of a third party.
While our Legislature has made laws to cover every possi ble situation, yet it is well nigh impossible to make provi sions for all kinds of situations.
Nevertheless where the social need of the hour requires that precious human lives lost in motor accidents leaving a trail of economic disas ter in the shape of their unprovided for families.
call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation par ticularly through Insurance Companies.
It is true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention.
Our country can ill afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupa tion dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned.
Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind.
In these circumstances it is only just and fair that the Legis lature should make a suitable provision so as to pay ade quate compensation by properly evaluating the.
previous life of a citizen in its true perspective rather than deval uing human lives on the basis of an artificial mathematical formula.
It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a com pensation of Rs. 1,00,000/. or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2,000/ .
Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par ticular conveyance and the value of his life is considerably reduced if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet section 95(2)(d) of the Motor Vehicles Act seems to.
suggest such a distinction.
We hope and trust that our law makers will give.
serious attention to this aspect of the matter and remove this serious lacuna in section 95(2)(d) of the Motor 951 Vehicles Act.
We would also like to.
suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case.
We further hope our suggestions will be duly implemented and the observa tions of the highest Court of the country do not become a mere pious wish.
In M/s. Sheikhupura Transport Co. Ltd. vs Northern India Transporters Insurance Co. Ltd. (1) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/upto a maximum of Rs. 20,000/ on the plain words of section 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motor acci dents.
In P.B. Kader & Ors.
vs Thatcharoma and Ors.(2) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows: "It is sad that an Indian life should be so devalued by an Indian law as to.
cost only Rs. 2,000/ , apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in the Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/ per individual, in volved in an accident, to make it more realis tic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the lawmakers that humanism is the basis of law and justice.
" We find ourselves in complete agreement with the obser vations made by the Kerala High Court in the aforesaid case and we would like to remind the law makers that the time has come to take a more humane and practical view of things while passing statute like the Motor Vehicles Act in regu lating compensation payable by Insurance Companies to vic tims of motor accidents.
We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time.
The result is that Civil Appeals Nos. 1826 of 1968 and 132 of 1969 are dismissed and Civil Appeal No. 2310 of 1968 is allowed to this extent that the claim preferred by Raha is enhanced from Rs. 60,000/ to Rs. 1,00,000/ .
As no authentic proof of any settlement between Gupta and Raha has been produced before us, the decree passed by us will be jointly and severally recoverable from Gupta and Bhuta after giving credit for the amounts received by Raha.
It will, however, be open to the executing court on proof of any full and final settlement of the claims of Raha with Gupta or any other Judgment debtor to adjust the claims accordingly under 0.23 r. 3 of the Code of Civil Procedure.
In the circum stances of the case, the parties will bear their own costs in this Court.
P.H.P. C.A. 1826 of 1968 and 132 of 1969 dismissed.
C.A. No. 2310 of 1968 allowed.
(1) ; (2) A.I.R. 1970 Kerala 241.
| IN-Abs | Satindra Nath Raha and Uma Shankar Shastri were trav elling by a bus owned by Gupta of M.P. Speedways Company.
They were travelling from Bhind to Gwalior.
On the high way, a bus owned by Bhuta came from the opposite direc tion.
On account of negligence of drivers of both the buses there was a head on collision of the two buses, as a conse quence of which Raha and Shastri sustained fatal injuries to which they succumbed on the same day in the hospital.
Widow of Raha claimed a compensation of Rs. 3,00,000/ under section 110A of the Motor Vehicles Act and Mrs. Shastri claimed a sum of Rs. 1.20,000/ as compensation.
The Claims Tribunal decreed the claim of Mrs. Raha to the extent of Rs. 60,000/ and of Mrs. Shastri to the extent of Rs. 40,000/ .
The compensation awarded to Mrs. Raha is on the basis of the salary which Mr. Raha would have earned upto the age of 55 years after deducting half the salary.
The quantum awarded by the Tribunal was upheld by the High Court.
Gupta and Mrs. Raha field the present appeals in this Court.
Gupta contended that the compensation awarded was very excessive and Mrs. Raha contended that the compensation granted was grossly inadequate and should be enhanced.
Allowing the appeal filed by Mrs. Raha and dismissing the appeal filed by Gupta, HELD: 1.
The contention of Gupta that he should not be made liable to pay the compensation since no negligence was alleged against the driver Ram Swarup negatived.
Although the plaint is loosely drafted but it clearly contains the relief of compensation against Gupta and Ram Swarup, the driver.
Pleadings have to be interpreted not with formalis tic rigour but with latitude or awareness of low legal literacy of poor people.
The Claims Tribunal and the High Court overlooked two important and vital considerations.
Firstly the increments which Mr. Raha would have earned while reaching the maximum of his grade long before his retirement and secondly the pensionary benefits which he would have obtained had he retired.
It would be reasonable to expect that if the deceased had not died due to the accident he would have lived at least upto the age of 65 years.
The Court, therefore, enhanced the compensation of Rs. 60,000/ to Rs. 1,00,000/ .
[948 F, G, 949A B, 950A B] 2.
It is unfortunate that section 95(2)(d) of the Motor Vehicles Act restricts the liability of the Insurance Compa nies to Rs. 2,000/ only in case of a third party.
The court suggested that the Legislature should increase the liability of the Insurance company.
The court observed that it was anamolous that if a passenger dies in a plane acci dent he gets the compensation of Rs. 1 lac and a person who dies in the road accident should get only Rs. 2,000/ .
[946 D E] 3.
Expressing its concern for the need for creating no fault liability by a suitable legislation, the Court ob served: The time is ripe for serious consideration of creating no fault liability.
Having regard to the directive princi ples of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nation alisation of bus transport, the law of 945 torts based on no fault needs reforms.
Where the social need of the hour requires that precious human lives lost in motor accidents leaving a trial of .economic disaster in the shape of their unprovided for families call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation particularly through Insurance Companies.
Our .country can iII afford the loss of a precious life when we are building a progres sive society and if any person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the indus try or occupation concerned.
Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind.
In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by property evaluating the precious life of a citizen in its true per spective rather than devaluating human lives on the basis of an artificial mathematical formula.
[916 C 950 D F]
|
Appeal No. 126 of 1976.
(Appeal by Special leave from the Judgment and Order dated the 11th October, 1974 of the Rajasthan High Court in D.B. Special Appeal No. 111 of 1974) L.N. Sinha, Sol.
and Suresh Sethi, for the appellant.
C.K. Garg, S.S. Khanduja and C.L. Sahu, for respondent.
966 The Judgment of the Court was delivered by BEG, C.J.
The Official Liquidator attached to the High Court of Rajasthan, in charge of the liquidation of Golcha Properties (Pvt.) Ltd., (hereinafter referred to as 'Golcha Company '), has come up in appeal to this Court by special leave against a judgment and order of a Division Bench of that High Court, passed on a Special Appeal from the judg ment and order of a single Judge of that Court.
On peti tions presented on 4th July 1966 and 30th July 1966 by the creditors of Golcha Company, the High Court had made a compulsory winding up order on 10th May 1968; and, on that very date, the appellant was appointed liquidator of the Golcha company.
The Dharti Dhan (Pvt.) Ltd., (hereinafter referred to as the 'Dhan Company '), with its registered office at Bombay, was said to be one of the debtors of the Golcha Company to the extent of Rs. 11,69,043/together with interest and commission which was said to be still due on 1st August 1969.
Agreements dated 25.6.66 and 17.1.67 between the two companies regulated the method of repayment by annual instalments of Rs. 2,50,000/ according to the appellant.
As the respondent, Dhan Company, is said to have defaulted in the payment of two of its instalments, a claim under section 446(2) of the Companies Act (hereinafter referred to as 'the Act ') for the recovery of a sum of Rs. 5,00,000/ was made before the Company Judge of the High Court of Rajasthan by the appellant.
On 20th September 1969, the Registrar of Companies in Maharashtra had to file a winding up petition against the respondent Dhan Company in the Bombay High Court.
The Company Judge in the Bombay High Court on 3rd January, 1970, directed advertisement of the winding up petition.
The respondent Dhan Company appealed against the decision of the Company Judge and obtained an order, dated 3rd February, 1970, from a Division Bench staying the operation of the order for advertisement of the winding up petition.
An appeal against that order is said be still pending so .that a stay of those proceedings operates.
After obtaining an order of stay of the proceedings against it in the Bombay High Court, the Dhan Company made an application under section 442(b) of the Act in the Rajasthan High Court for stay of proceedings against it section 446(2) on the ground that a compulsory winding up petition was pending against it in the Bombay High Court.
The object of the respondent Dhan Company appeared to be to obtain an indefi nite stay of proceedings againsts it in both High Courts.
If this is a correct inference, as it appears to us to be, the stay application under section 442(b) of the Companies Act would not be a bona fide one.
It looks more like an abuse of the process of the Court.
It is, therefore, not surprising that the learned Company Judge: of the Rajasthan High Court rejected the Dhan Company 's application under section 442(b) of the Act on 9th May 1974.
It is, however, somewhat sur prising that a Division Bench of that High Court should have allowed an appeal from the judgment of the Company Judge and ordered stay of proceedings under section 446(2) of the Act against the respondent Dhan Company, even though this was subjected to the 967 condition that "the appellant Company produces the entire documentary evidence inclusive of account books, vouchers, files and other documents and papers in its possession or power relating to the claim in question, as it may desire to produce or the Official Liquidator desires to summon or as the learned Company Judge may direct in his discretion and also produces a list of witnesses that the appellant company may desire to examine in its defence in respect of the claim in question along with an affidavit of what each witness is likely to depose".
Thus, the Division Bench had, while making the stay order, attempted to safeguard the interests of the Golcha Company by making an order which, in the opinion of the Division Bench, would prevent valuable evi dence from being lost due to either the death or the fading memory of a witness or other causes.
Learned Solicitor General, appearing for the appellant, Official Liquidator of the Golcha Company, gave up the objection, taken in the special leave petition, to the maintainability of an appeal to a Division Bench from the order of the Company Judge in view of the provision of section 483 of the Act, which lays down: "483.
Appeals from any order made or decision given in the matter of the winding up of a company by the Court shall lie to the same Court to which, in the same manner in which and subject to the same conditions under which, appeals lie from any order.
or decision of the Court in cases within its ordinary jurisdiction".
The Solicitor General, however, submits that, on merits, the order of the learned Company Judge, dismissing the applica tion of the Dhan Company for stay of proceedings under section 442(b) of the ' Act, deserves to be restored as no grounds for interference with the proper exercise of his discretion by the learned Company Judge existed at all.
We highly appreciate the brevity of this submission, after the Solici tor General had, very rightly and properly, ' conceded that he could not urge that the Division Bench had not jurisdic tion to hearthe appeal before it.
No effective answer could be given to the Solicitor General 's submission by the learned counsel for the respondent.
We will, however, deal with the strenuous arguments advanced on behalf of the respondent even if it be to disclose how untenable they are.
Firstly, learned counsel for the respondent contends that the power to stay proceedings, contained in section 442(b) of the Act, is bound to be exercised when certain condi tions, said to be found in the case before us, are ful filled.
This submission rests on a misapprehension of the object of section 44 2 which lays down: "442.
At any time after the presentation of a winding up petition and before a winding up order has been made, the company, or any creditor or contributory, may (a) where any suit or proceeding against the company is pending in the Supreme Court or in any High Court, apply 968 to the Court in which the suit or proceeding is pending for a stay of proceedings therein; and (b) where any suit or proceeding is pending against the company in any other court, apply to the Court having jurisdic tion to wind up the company, to restrain further proceedings in the suit or proceeding; and the Court to which application is so made may stay or restrain the proceedings accordingly on such terms as it thinks fit".
The clear object of the section is that claims in suits in and proceeding pending elsewhere which have a bearing on the company 's liabilities, may be stayed only until the winding up order is made, because, after the winding up order has been passed, section 446 begins to.
operate so as to.
automatically transfer with certain exceptions proceed ings against the company being wound up to.
the Court exer cising the.
jurisdiction to wind it up.
Section 446 reads: "446.(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Court and subject to such terms as the Court may impose.
(2) The Court which is winding up the company shall, notwithstanding anything con tained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a) any suit or proceeding by or against the company; (b) any claim made by or against the compa ny (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company; whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such applica tion has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.
969 (3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court.
(4) Nothing in sub section (1) or sub section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court".
Sections 442 and 446 of the Act have to be read together.
It is only where the object of the two sections, when read together, is served by a stay order that the stay order could be justified.
That object is to expeditiously decide and dispose of pending claims in the course of winding up proceedings.
A stay is not to be granted if the object of applying for it appears to be, as it does in the case before us, merely to delay adjudication on a claim, and, thereby to defeat justice.
In other words, a stay order, under sec tion 442,cannot be made mechanically, or, as a matter of course, on showing fulfilment of some fixed and prescribed conditions.
It can only be made judiciously upon an exami nation of the totality of the facts which very from case to case.
It follows that the order to be passed must be discretionary and the power to pass it must, therefore, be directory and not mandatory.
In other words the word" used before "stay" in section 442 of the Act really means may and not "must" or "shall" in such a context.
In fact it is quite accurate to say that the word "may" by itself, acquires the meaning ' of "must" or "shall" sometimes.
This word however, always signifies a conferment of power.
That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises.
In other words, it is the context which can attach the obligation to the power compel ling its exercise in a certain way.
The context, both legal and factual, may impart to the power that obligatoriness.
Thus, the question to be determined in such cases always is,whether the power conferred by the use of the word "may" has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed conditions, to be shown by evi dence, a particular kind of order must be made.
If the statute leaves no room for discretion the power has to be exercised in the manner indicated by the other legal provi sions which provide the legal context.
Even then the facts must establish that the legal conditions are fulfilled: A power is exercised even when the Court rejects an applica tion to exercise it in the particular way in which the applicant desires it to be exercised.
Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary.
It is not the conferment of a power which the word "may" indicates that annexes any obligation to its exercise but the legal and factual context of it.
This, as we 970 understand it, was the principal laid down in the case cited before us: Frederic.
Guilder Julius vs The Right Rev. The Lord Bishop of Oxford; The Rev. Thomas Thellusson Carter.
(1) Dr. Julius, in the case mentioned above, had made an application to the Bishop of Oxford against the Rector of a parish, asking the Bishop to issue a commission under the Church Discipline Act to enquire against certain unautho rised deviations from the ritual in a Church by the.
Rector.
The relevant statute merely conferred a power by laying down that "it shall be lawful" to issue a commission.
The Courts of Queens Bench and of Appeal in England had differed on the question whether a mandamus from the Court could go to the Bishop commanding him to.
issue a commission for the purpose of making the enquiry.
The House of Lords held that the power to issue the commission was not coupled with a duty to exercise it in every case although there may be cases where duties towards members of the public to exercise a power may also be coupled with a duty to exercise it in a particular way on fulfilment of certain specified conditions.
The statute considered there had not specified those condi tions.
Hence, it was a bare power to issue or not to issue the commission.
Lord Blackburn said: (at p. 241 ): "I do not think the words 'it shall be lawful ' are in themselves ambiguous at all.
They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exer cise it for the benefit of those who have that right, when required on their behalf.
Where there is such a duty, it is not inaccu rate to say that the words conferring the power are equivalent to saying that the donee must exercise it.
It by no means fol lows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it: that depends on the nature of the duty and the position of the donee".
The principle laid down above has been followed consist ently by this Court whenever it has been contended that the word "may" carries with it the obligation to exercise a power in a particular manner or direction.
In such a case, it is always the purpose of the power which has to be exam ined in order to determine the scope of the discretion conferred upon the donee of the power.
If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner.
This is the principle we deduce from the cases of this Court cited before us: Bhaiya Punjalal Bhagwandin vs (1) 5 A.C. 214.
971 Dave Bhagwatprasad Prabhuprasad,(1) State of Uttar Pradesh vs Jogendra Singh,(2) Sardar Govindrao & Ors.
vs State of M.P.,(3)) Shri A. C.Aggarwal.
Sub Divisional Magistrate, Delhi & Anr, vs Smt.
Ram Kali etc.
,(4) Bashira vs State of U.P.,(5) and Prakash Chand Agarwal & Ors. vs M/s. Hindustan Steel Ltd.(6) In the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised.
The question whether it should, on the facts of a particular case, be exercised or not 'will have to be examined and then decided by the Court to which the application is made.
If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act, can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts.
That would be the position not because the word "may" itself must be equated with "shall" but because judicial power has necessarily to be exercised justly, properly, and reasonably to enforce the principle that fights created must be enforced.
In the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the Court where the winding up proceeding is taking place.
That is the object of the provisions.
On facts disclosed in this case, we find that the application seems to have been made with the object of delaying deci sions on claims made.
In such a case, there could be no doubt that the application should be rejected outright as the learned Company Judge did.
Secondly, an attempt was made to urge that the power to grant or not to grant or to grant a stay upon certain condi tions, assuming the power to be discretionary, is to be exercised by the Courts in which that discretion is vested, this Court should not interfere with the exercise of discre tion by the Division Bench to which an appeal from the order of the Company Judge lay.
The effective answer to this contention is that, where the learned Company Judge had himself exercised his discretion on a correct appreciation of the object of the provisions of sections 442 and 446 of the Act, even though he did not state the object or refer to all the facts, the Appellate Court should not have interfered by granting a conditional stay without giving sufficient reasons to over ride the discretion of the learned Company Judge to refuse stay.
We think that a question of general (1) [19631 3 S.C.R. 312.
(2) ; (3) ; (4) [1968] 1 S.C.R. 205.
(5) (6) 14 206SCI/77 972 principle arises in this case which has to be clarified so that an interference by this Court under Article 136 of the Constitution, in order to vindicate a correct principle and to meet the ends of justice, is called for.
Thirdly, learned counsel for the respondent submitted that the order under appeal before us is not final so that we need not interfere under article 136 of the Constitution for this reason.
It is true that, this Court does not, as a rule, interfere with interlocutory orders.
It is not necessary for us to embark on this occasion on a discussion of the meaning of a "final" order.
That is certainly a question fraught with difficulties.
It is sufficient for us to observe that our powers of interference under article 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this Court generally applies in considering whether it should interfere under article 136 of the Constitution with it.
We think that we have indicated sufficiently why, despite the fact that an order staying proceedings under section 442(b) of the Act may not, strictly speaking, be final, yet, a question of general principle of wide application, as to the circumstances in which an apparently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit case for interference under Article 136 of the Constitution.
Consequently, we allow this appeal and set aside the judgment and order of the Division Bench and restore that of the learned Company Judge.
The parties will bear their own costs.
S.R. Appeal allowed.
| IN-Abs | The Company Judge in t.he Bombay High Court directed on 3 1 1970 advertisement of the winding up petition fried by the Registrar of Companies in Maharashtra against the respondent company, one of the debtors of the Golcha company to the extent of Rs. 11,69,043/ .
The respondent company appealed against the decision of the Company Judge and obtained an order dated 3rd February, 1970, from a Divi sion Bench staying the operation of the order of advertise ment of the winding up petition.
As the respondent company defaulted in the payment of two of its instalments, as agreed to between the Golcha company and the respondent company by agreements dated 25th June 1966 and 17th January 1967, the Official Liquidator of the Golcha company made a claim under section 446(2) of the Companies Act for the recovery of a sum of Rs. 5 lac before the Company Judge of the High Court of Rajasthan.
The respondent company after obtaining an order of stay of the proceedings against it in the Bombay High Court made, another application under section 442(b) of the Companies Act in the Rajasthan High Court for staying of proceeding against it under s 446 (2) made by the appellant on the ground that a compulsory winding up petition was pending against it in the Bombay High Court.
The Company Judge rejected the application under section 442(b) of the Act on 9 5 .1974.
But, the Division Bench of the Rajasthan High Court allowed the appeal against the stay order and ordered a conditional stay of proceedings section 446 (2) of the Act against the respondent company.
On appeal by special leave, the Court, HELD: (1) The clear object of section 442 is that claims in suits and proceedings pending elsewhere which have a bearing on the company 's liabilities may be stayed only until the winding up order is made, because, after the winding up order has been passed, section 446 begins to operate so as to automatically transfer with certain exceptions, proceedings against the company being wound up to the court exercising the jurisdiction to wind it up.
[968 B C] (2) Sections 442 and 446 of the Act have to be read together.
It is only where the object of the two sections, when read together, is served by a stay order that the stay order could be justified.
That object is to expeditiously decide and dispose of pending claims in the winding up proceedings.
A stay is not to be granted if the object of applying for it appears to be merely to delay adjudication on a claim, and, thereby, to defeat justice.
In other words, a stay order under section 442 cannot be made mechanically or, as a matter of course, on showing fulfilment of some fixed and prescribed conditions.
It can only be made judi ciously upon an examination of the totality of the facts which vary from case to case, It follows that the order to be passed must be discretionary and the power to pass it must, therefore, be directory and not mandatory.
[969 B D] (3) The word "may" used before stay section 442 of the Compa nies Act really means "may" and not "must" or "shall" in such a context.
In fact, it is not quite accurate to say that the word "may" by itself acquires the meaning of "must" or "shall" sometimes.
This word, however, always signifies a conferment of that power.
That power may, having regard to the context in which it occurs and the requirements contem plated for its exercise have annexed to it 965 an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exer cise it in that way arises.
In other words, it is the context which can attach the obligation to the power compel ling its exercise in a certain way.
The context both legal and factual may impart to the power that obligatoriness.
[969 D F] (4) Thus, the question to be determined in such cases always is whether the power conferred by the use of the word "may" has annexed to it an obligation, that, on the fulfil ment of certain legally prescribed conditions to be shown by evidence, a particular kind of order must be made.
In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discre tion conferred upon the donee of the power.
If the condi tions in which the power is to be exercised in particular cases are also specified by a statute, then, on the fulfil ment of those conditions, the power conferred becomes an nexed with a duty to exercise it in that manner.
[969 F 970 G H] Frederic Guilder Julius vs The Right Rev.
The Lord Bishop of Oxford: The Rev. Thomas Thelusson Carder 5 A.C. 214, quoted with approval.
Bhaiya Punjalal Bhagwandin vs Dave Bhagwat prasad Prab huprasad ; State of Uttar Pradesh vs Jogen dra Singh ; ; Sardar Govindrao & Ors.
vs State of M.P. ; ; Shri A. C. Aggarwal, Sub Division al Magistrate, Delhi & Anr.
vs Smt.
Ram Kali etc.
[1968] 1 SCR 205; Bashira vs State of U.P. and Pra kash Chand Agarwal & Ors.
vs M/s. Hindustan Steel Ltd. , applied.
(5) In section 442 of the Companies Act the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised.
The question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the applica tion is made.
If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act can only be carried out by a stay order, it could per haps be urged that an obligation to do so becomes annexed to it by proof of those facts.
That would be the position in case the word "may" itself must be equated with "shall", but because judicial power has necessarily to be exercised justly, properly and reasonably to enforce the principle that rights created must be enforced.
[971 B D] (6) In such cases, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding up proceeding is taking place.
That is the object of the provisions.
On facts disclosed, if it be found that the application has been made with the object of delaying decisions on claims made, the application should be rejected outright.
[971 D E] (7) In the instant case the object of the respondent company appears to be to obtain an indefinite stay of pro ceedings against it in both High Courts.
This being a correct inference, the stay application under section 442(b) of the Companies Act could not be a bona fide one, but an abuse of the processes of the court.
[966 F G] (8) It is true that the Supreme Court does not, as a rule interfere with interlocutory orders.
The powers of interference under article 136 of the Constitution by the Supreme Court are not confined to those in respect of final orders, although finality of an order is a test which the Supreme Court generally applies in considering whether it should interfere under article 136 of the Constitution with it.
[972 B D]
|
Appeal No. 721 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 27th April 1976 of the Patna High Court in Appeal from Appellate Decree No. 6 of 1974).
Harbans Singh Marwah, for the appellant.
K.K. Sinha, S.K. Sinha and Devi Prasad, for respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of suit for eviction of the tenant.
Two rooms being shop Nos. 17 and 18 of Modi Building in Commissioner 's Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the. defendant (appellant herein).
We will describe them as the plaintiff and the defendant.
It is common ground that fair rent of Rs. 50/ per month (including water tax) was deter mined for the two, shops by an order of the Rent Control ler under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953.
Later on, certain furniture, such as ' five almirahs and six racks, were also let out by the plaintiff to the defendant on a monthly rental of Rs. 28/ .
A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non payment of rent of the said two shops and furniture for three months from July to September 1965.
986 The Munsiff, Ranehi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11(1)(d) of the Act.
The Munsiff also held that there was no valid service of notice under section 106 of the Transfer of Property Act.
On appeal the Second Additional Subordinate Judge, Ranchi, reversed the judgment of the trial court and de creed the suit for eviction upholding the ground of default.
The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/ per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/ per month was not a valid dis charge of his rental liability and he was a faulter within the meaning of section 11(1)(d) if the Act.
The Subordinate Judge also held that there was no proper service of the notice of eviction.
We are not concerned in this appeal with the question of service of notice.
Since the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our purpose: (1) "I, therefore, decide that the plain tiff was entitled to realise Rs. 50/ as monthly rent.
(2) In view of the evidence of the parties and Ext.
2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/ per month.
(3) The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy . ".
The defendant 's second appeal to the High Court failed. 'The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under section 11(1)(d) and hence the ground of default of payment of Rs. 78/ per month from July to September 1965 was avail able to the plaintiff.
The High Court also gave an additional reason for sus taining the eviction decree.
There was an order by the Subordinate Judge, in the course of the appeal, under sec tion 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/per month in terms of that Section.
It appears there was some controver sy before the Subordinate Judge as to whether this order under section 11A was complied with or not by the defendant.
The Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non compliance with the court 's order under section 11A in the following terms: "It was argued on behalf of the appel lant (plaintiff) that the defendant had not deposited subsequent rent in spite of direc tion by the court and so this court had to 987 strike out the defence against ejectment.
The defendant had filed the documents to show subsequent deposit in regular way.
So this plea of plaintiff fails".
A second attempt, and this time successfully, was made in the High Court by the plaintiff to.
press the ground under section 11A of the Act to strike out the defendant 's de fence against ejectment.
It is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non compliance with section 11A of the Act.
The High Court, therefore, allowed parties to produce some documentary evidence and relying upon the same held as follows: "Learned Advocate appearing for the appellant (defendant) contended that inasmuch as the delay in depositing the money in the Bank occasioned on account of the default of the officers of the court, no penalty should be imposed on the appellant (defendant).
Learned Advocate, however, failed to produce any material to.
show as to what detracted the appellant (defendant) to deposit the money himself on 15 3 1974 on the passing of the. challan and what caused the 7handing over the money to.
the Nazir".
In a matter where the first appellate court came to a posi tive finding in favour of the defendant with regard to the non compliance with its order under section 11A, we do not consider that the High Court was right in adopting the course.
it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latter 's oral testimony.
There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on March 14, 1974.
The matter would have been different if the High Court, in the interest of justice, had called for addition al evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportu nity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation.
It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend ant.
Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of additional evidence before the High Court.
In view of the fact that the first appellate court held the deposit of the amount sufficient ' under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it.
This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in ' the extract from the judgment quoted 15 206SCI/77 988 above.
The only objection of the.
High Court was that the defendant instead of handing over the amount to.
the Nazir should have "himself ' deposited the amount on March 15, 1974.
Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment.
The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore, fails.
Further section 11 describes the circumstances under which eviction of tenants can take place.
Under that section a tenant shall not be liable to eviction except in execution of a decree passed by the court on one or more of the grounds specified therein.
Section 11A which was inserted by amendment by Bihar Act 16 of 1955 reads as follows: "Deposit of rent by tenants in suits for ejectment.
If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the ten, ant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an oppor tunity to the parties to be heard, may make an order for deposit of rent at such rate as may he determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the.
rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so.
The Court may further order recovery of cost of suit and such other com pensation as may be determined by it from the tenant".
It is submitted by the defendant that an order under section 11A can be passed only by the trial court.
We are, however, unable to accept this position, since appeal is a continuation of the suit.
The advantage which is given to the landlord under section 11A for the purpose of realisa tion of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secured by the landlord at any stage of the litiga tion, whether in the trial court or in appeals.
The penalty of striking out defence for non compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act.
The only ground that remains for consideration is wheth er the defendant defaulted m the payment of rent from July to September, 1965.
If it were merely a finding of fact by the first appellate court 989 there would be nothing wrong for the High Court to dismiss the second appeal.
The question, however, assumes a legal complexion even on the findings of facts of the first appel late court.
The first appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time.
The first appellate court found that the rent of Rs. 28/ per month for the furniture was a subject matter of "subsequent supply" and "a quite independ ent contract 'unconnected with the original tenancy".
It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act.
The High Court has accepted this legal conclusion of the Subordinate Judge.
We are, however, unable to accept the above legal position of the defendant 's default in this case on the finding of facts set out above.
Rent has been always Rs. 50/ per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953.
The parties having been already before the Rent Controller for fixation of fair rent of the premises, the plaintiff could not alter that fixed rent without order of the Rent Controller.
Section 4 of the Act provides that "notwith standing anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to.
in crease, or claim 'any increase in, the rent which is payable for the time being, 'in respect of any building except in accordance with the provisions of this Act".
The two shops, which are building for the purpose of section 2(an) of the Act, were rented out as an unfurnished building.
This amount of rent of Rs.50/ was determined by the Rent Con troller as fair rent under section 5 of the Act.
It is the default in the payment of this rent fixed by the Rent Con troller which will furnish a ground for eviction under section 11(1)(d) of the Act.
Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mis chief of section 11(1)(d) to entitle the landlord to a decree for eviction.
On the findings of the first appellate court the furniture rent remains di vorced from the rent of the building under the original demise.
Even if the furniture be returned, the lease for the building in this case will not be affected.
The plaintiff submits that since the definition of build ing includes furniture the rent becomes consolidated 'and the defendant was liable to pay the total amount of Rs. 78/ and any default for two months to pay the consolidated rent will attract sections 11(1)(d) of the Act.
The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermina tion of the rent under section 7 of the Act.
We are unable to accept the above submission.
Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller.
Section 7, inter alia, 990 provides that if, at.
any time after the fair rent of a building has been determined, it appears to the Rent Con troller that subsequent to such determination some addition or improvement has been made to the building at the land lord 's expense, the Controller may redetermine the .fair rent of the building.
There is no legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act.
Any other course is bound to lead to mal practices and unholy devices deterimental to the interests of the tenants.
No enhance ment of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act.
Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the article The High Court, and earlier the Addi tional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court.
There was, there fore, no basis for granting decree for eviction under sec tion 11(1)(d) of the Act.
In the result the judgment of the High Court is set aside and the judgment and the decree of the Munsiff dis missing the suit stand restored.
The appeal is allowed with costs.
P.B.R. Appeal allowed.
| IN-Abs | Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act.
1947 provides that a tenant shall not be liable to eviction except in execution of a decree passed by the Court on one or more of the grounds specified there in.
Under section 11A, if in a suit for recovery of possession of any building the tenant contests the suit, the Court may make an order for deposit of rent and arrears, if any, and on failure to deposit the arrears within fifteen days of the date of the order, the Court shall order the defence against ejectment to be struck out.
The plaintiff (respondent) let out two rooms of his premises to the defendant (appellant) at a rent fixed by the Rent Controller under section 5 of the Act.
Sometime later, the plaintiff let out some furniture to the defendant at a mutually agreed rent.
The plaintiff 's suit for eviction of the defendant on the ground of non payment of rent for three months was dismissed by the trial Court holding that failure to pay the rent of furniture along with the rent of the premises did not amount to a default under section 11(1)(d) of the Act.
On appeal, the Subordinate Judge held that non payment of rent of furniture along with the rent of the premises was a default within the meaning of section 11(1)(d).
The High Court upheld the decision of the Subordinate Judge.
On the question of deposit of rent under section 11A, the Subor dinate Judge held that the defendant had filed documents to show subsequent deposit in a regular way.
On the other hand, the High Court came to the conclusion that the defend ant failed to produce any material to show as to what de terred him from "depositing the money himself on the passing of the challan and what caused the handing over of the money to the Nazir.
" On this ground, it allowed the plaintiff 's suit.
Allowing the appeal, HELD: The High Court and the Subordinate Judge committed an error of law in accepting the ground of default under section 11(1)(d) on a wrong appreciation of the legal position on the facts found by the first appellate Court.
There was, therefore, no basis for granting a decree for eviction under section 11(1)(d) of the Act.
[990C] 1.
(a) It is the default in the payment of rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d).
Section 4 of the Act provides that notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is pay able for the time being, in respect of any building except in accordance with the provisions of the Act.
[989E F] In the instant case, the Rent Controller having fixed the rent of the premises, the plaintiff could not alter that rent without an order of the Rent Controller.
Default of the payment of furniture rent agreed to by the defendant subse quent to the lease of the premises could not be brought within the mischief of section 11 (1) (d) to entitle the landlord to a decree for eviction.
The furniture rent remains di vorced from the rent of the building under the original demise.
[989D &P] (b) Any alteration of the fair rent fixed by the Rent Controller will have to receive the imprimatur of the Rent Controller under section 7.
There is no legal impediment if the parties approach the Controller and by consent obtain an order from the Controller fixing the revised rent admissible under the Act.
No 985 enhancement of fair rent is legally permissible except in accordance with the provisions of the Act.
Default of payment of any rent in excess of the fair rent fixed, if without recourse to the Procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Act.
[990A B] The penalty of striking out the defence for non compli ance of an order under s.11A is district from the grounds of eviction permitted under section 11.
[988H] 2.
The contention of the defendant that an order under s.11A could be passed only by the trial Court is without force because an appeal is a continuation of the suit.
The advantage given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite can be secured by him at any stage of the litigation, whether in the trial Court or in appeal.
[988G] 3.
Where the first appellate court came to a positive finding of fact in favour of the defendant, the High, Court was wrong in adopting a different course to reach a contrary conclusion for the first time on a vital fact.
The matter would have been different if the High Court had called for additional evidence under 0.41, r. 28, C.P.C.
But the course adopted by the High Court has resulted in great prejudice to the defendant.
[987E F] In the instant case the High Court itself had accepted that the amount of rent was handed over to the Nazir but the objection was that the defendant, instead of handing over the amount to the Nazir, should have himself deposited it.
In the absence of a proper enquiry into the matter of delay of deposit by the Nazir the High Court was not right in second appeal to penalise the defendant by striking out his defence against ejectment.
[988B]
|
ivil Appeal No. 1252 of 1976.
Appeal by special Leave from the Judgment and Order dated 13 8 1975 of the Allahabad High Court in Second Appeal No. 179/ 75.
K. Gupta, for the Appellant.
S.T. Desai and R.B. Datar for the Respondent.
SHINGHAL, J.
This appeal, by special leave, is directed against the summary dismissal of defendant Piarey Lal 's second appeal on August 13, 1975.
As the leave has been limited to the question of interpretation of clauses (a) and (b) of section 30 of the U.P. Consolidation of Holdings Act, 1953, (hereinafter referred to as the Act), "for the pur pose of deciding whether the liability of the petitioner to specifically perform the contract of sale of the old hold ing was transferred to the new 'chak ' allotted to him on consolidation," it will be enough to state the facts which bear on it.
916 Respondent Hori Lal raised the suit for specific per formance of an agreement dated March 6, 1966, for the sale of six plote of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur.
It was alleged in the plaint that Rs. 3000/ were paid by the plaintiff Hori Lal in advance, and the balance of Rs. 2000/was to be paid at the time of the execution of the sale deed, within one year of the agreement.
It was also pleaded that as defendant Piarey Lal refused to execute the ' sale deed, the plaintiff was driven to the necessity of filing the suit for specific performance of the agreement for sale and, in the alterna tive, for the recovery of Rs. 3000/which had been paid as advance.
Defendant Piarey Lal denied the execution of the agreement for sale and the receipt of Rs. 3,000/ , and pleaded that as new plots had been allotted as a result of the consolidation of his holding under the Act, he could not perform the agreement for sale.
The trial court framed issues, inter alia, on questions relating to the execution of the agreement for sale, payment of Rs. 3000/ to the defendant, and the inability of the defendant to perform the contract.
That court held that the plaintiff had proved the agreement for sale and the payment of Rs. 3000/ ' .
It also held that the agreement for sale could be "enforced for plots allotted to the defendant in lieu of plot mentioned in the agreement in consolidation.
" It therefore decreed the suit for specific performance by its judgment dated August 23, 1973.
The Second Additional District Judge, Badaun, upheld the decree, and as the High Court has dismissed the second appeal as aforesaid, defendant Piarey Lal has come to this Court for a redress of his grievance by special leave.
As has been stated, the limited question for considera tion in this Court is whether the defendant was liable to specifically perform the contract for sale of his old hold ing even after its consolidation and the allotment of a 'chak ' ?
It appears that there was controversy in the Allahabad High Court on the question whether an agreement for sale, in the circumstances of a case like this, was rendered void under section 56 of the Contract Act because of the order of consolidation allotting new plots for the earlier plots in respect of which the agreement for sale had been executed.
A Single Judge of that Court took the view in Sugna and another vs Kali Ram and others(1) that the agreement became void and impossible of performance, and was not saved by section 30 of the Act.
A different view was however taken by another Single Judge in Chetan Singh and others vs Hira Singh and others(1).
The matter was re ferred to a Division Bench in Shanti Prasad vs Akhtar and another.(2) One of the Judges in the Division Bench was the Judge who had given the decision in Chetan Singh 's case.
The Bench held that the duty of the seller to execute the conveyance of the property agreed to be sold, was a liabil ity recognised by law and was enforceable as the liability "relates to the land mentioned in the agreement" and was "transferred to the new 'chak '" under section 30(b) of the Act.
The decision in Shanti Prasad 's case formed the basis of the decision of the first appellate (1) (2) (3) 917 court in this case, and that appears to be the reason why the High Court has dismissed the second appeal summarily.
The controversy therefore turns on the proper interpretation of section 30 of the Act which deals with the consequences which ensue on exchange of possession as a result of the allotment of a 'chak ' to the tenure holder.
Clauses (a) and (b) of section 30 of the Act provide as follows, "30.Consequences which shall ensue on exchange of possession.
With effect from the date on which a tenure holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provi sions of this Act, the following consequences shall ensue (a) the rights, title, interests and liabili ties (i) of the tensure holder entering, or deemed to have entered, into possession, and (ii) of the former tenure holder of the plots comprising the chak, in their respective original holdings shall cease; and (b) the tenure holder entering into pos session, or deemed to have entered into pos session, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists, as the former tenure holder of the plots compris ing the chak had in regard to them.
" It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of the tenure holder entering into possession of the 'chak ', as well as of the former tenure holder of the plots comprising the 'chak ', in their respective original holdings, and provides that those rights, title, interests and liabilities shall "cease", clause (b) provides that the tenure holder entering into possession of the 'chak ' shall have, in that 'chak ', the same rights, title, interests and liabilities "as he had in the original holdings.
" The expression 'chak ' has been defined in section 3(1 A) of the Act to mean "the parcel of land allotted to a tenure holder on consolidation."
The two clauses therefore are quite simple and clear, and ' do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?
As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure holder to whom the 'chak ' has been allot ted, and of the former tenure holder 918 of the plots comprising the 'chak ' in their respective original holdings".
There is no controversy that this was so in the present case.
It is also no body 's case that the rights, title, and interests of the tenure holder entering into possession of his 'chak ' have any bearing on the con troversy relating to the specified performance of the agree ment for sale, for all that has been urged before us is that the defendant, as the tenure holder of the new holding or 'chak ' had the same "liabilities" in that 'chak ' as he had in the original holding.
What therefore remains for consider ation is whether, on the defendant 's entering into posses sion of his new land or 'chak ', there was the same liability "in" the new land as "in" the original holding.
It there fore to be examined whether, by virtue of the agreement for sale, any liability accrued "in" the original holding ? A cross reference to section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It has however been specifically provided in ' the section that such a contract "does not, of itself, create any interest in or charge on such property.
" It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure holder.
That being so, there could be no occasion for the transfer of any such "liability in" the new land or 'chak ' of the defendant so aS to attract clause (b) of section 30 of the Act.
In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer ' of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property.
So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of clause (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.
We have gone through the decision in Shanti Prasad 's case (supra), but we find that while the High Court took note of the fact that the right 's, title, interests and liabilities of the tenure holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the 'chak ' allotted to him, it lost sight of the significance of the word "in", and the afore said provisions of section 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenureholder" was subject to any liability "in respect of" his old holding.
That was why it fell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his 'chak ' on his entering into its possession.
As has been shown, that was an erroneous view which has to be rectified.
It may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject matter of the agreement of sale, because, that holding had been substituted" by the 'chak '.
919 He also tried to argue that the 'chak ' allotted to the defendant by way of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act.
Counsel could not however support his argument by reference to the law, or the facts of the case.
Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the Act.
It would thus appear that the plaintiff respondent 's suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view.
Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/ along with interest at 6 per cent per annum from the date of payment.
The appeal is allowed with costs, the impugned judgment of the High Court is set aside, and the suit of plaintiff respondent Hori Lal is dismissed in so far as it relates to specific performance of the agreement for sale.
It is however ordered that the defendant shall repay Rs. 3000/ to the plaintiff, along with interest at 6 per cent per annum from the date of payment, within three months from today.
M.R. Appeal allowed.
| IN-Abs | The appellant Piarey Lal had agreed to sell his original holding to Hori Lal but later refused to do so on the ground that his property which was the subject matter of the con tract had been consolidated under the U.P. Consolidation of Holdings Act, 1953, and it was impossible to perform the agreement.
Hori Lal filed a suit for specific performance contending that the agreement for sale had created a liabil ity for Piarey Lal for the purpose of section 30(b) of the Act, and the same was transferred to the new plot or "chak" allotted to him as a result of the consolidation.
The suit was decreed by the Trial Court and Piarey Lal 's appeals before the District Court and the High Court were dismissed.
Allowing the appeal by Special Leave the Court, HELD: By virtue of section 54 of the Transfer of Property Act, the agreement for sale did not give rise to any inter est "in" the original holding of the defendant as the ten ure holder.
There could thus be no occasion for the transfer of any such , 'liability" in his new land or "chak" so as to attract clause (b) Of section 30 of the Act.
When he lost that property as a result of the scheme of consolida tion, the agreement for sale became void.
[918 C E] Sagna & Anr.
vs Kali Ram & Ors. , approved.
Shanti Prasad vs Akhtar & Anr.
and Chettan Singh & Ors.
vs Hira Singh & Ors. overruled.
|
: CrimitIal Appeal No. 22 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 12th September 1975 of the Punjab and Haryana High Court in Criminal Revision No. 314 of 1973).
R.L. Kohli, for the appellant.
O.P. Sharma, for respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
We made an order on 28th January, 1977 immediately after the conclusion of the hearing of the appeal and by that order, we allowed the appeal and set a 'side the order of conviction and sentence recorded against the appellant.
We now proceed to give our reasons for making that order.
The appellant was tried and convicted by the Judicial Magistrate, 1st Class, Ludhiana for offences under sections 468, 411 and 420 read with section 109 of the Indian Penal Code.
He carried an appeal to the Sessions Court but the appeal was unsuccessful.
A further revision application followed but that too was rejected by the High Court.
Hence the present appeal by special leave. 1009 The facts giving rise to the prosecution are set out in great detail in the judgment of the High Court and hence it is not necessary to reiterate them.
It is enough to state that 354 black iron sheets worth Rs. 17,701.91 were des patched by Hindustan Steel Plant from Munda near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No. SEKC 4075.
The Railway Receipt in respect of this consignment was sent to M/s Shiv Rattan Mohatta through the State Bank of Bikaner and M/s Shiv Rattan Mohatta took delivery of the Railway Receipt against payment to the Bank.
The consignment, however, did not reach Bikaner and on enquiries being made, it was found by the Railway authorities that the wagon containing the goods had reached Agra en route Bikaner but at some point of time before it reached Agra, the labels attached to the wagon were either changed or removed and the entry in the vehicle summary guidance was also tempered with and Changed to exhibit LAR indicating that the wagon was des patched from Lalitpur and its destination was Ludhiana.
The result was that wagon, instead of going to Bikaner, was carried to Ludhiana and it reached there on 1st August, 1964.
The prosecution case was that round about this time, one person.
styling himself .as
Umedi Lal, resident of Agra, approached a firm called M/s Jindal Khemka & Co. which was carrying on business as dealers in iron sheets in Ludhi ana.
Umedi Lal produced a Railway Receipt exhibit PW 10/A before Joginder Lal and Ram Nath, partners of this firm and offered to sell the goods covered by this Railway Receipt to M/s Jindal Khemka & Co. This Railway Receipt was a forged document written out on a blank form stolen from the Railway Receipt Book maintained at a railway station called Banmore.
Joginder Lal went to Ludhiana Railway Station with this Railway Receipt on 2nd August, 1964 for taking delivery of the goods and presented the Railway Receipt to Teja Singh Sodhi, who was the Goods Clerk on duty at the goods sheet.
Teja Singh entertained some doubt about the genuineness of the Railway Receipt and he told Joginder Lal that the Rail way Receipt appeared to be defective.
In view of this, Joginder Lal, according to the prosecution, returned the Railway Receipt to Umedi Lal on the following day when he came to enquire about the receipt of the goods.
Umedi Lal then went to the railway station accompanied by one Shoja Ram, who was a Washing Soap dealer in Ludhiana, and present ed the Railway Receipt to Teja Singh Sodhi for taking deliv ery of the goods.
Curiously enough, though only a day before, Teja Singh Sodhi had entertained doubt about the genuineness.
of the Railway Receipt, his doubts suddenly seemed to have vanished and he delivered the consignment of 354 black iron sheets which had come in wagon No. SEKG 40765 to Umedi Lal.
It does not appear from the record us to where this consignment of 354 black iron sheets was kept by Umedi Lal, but out of it, 200/250 iron sheets Were taken to the premises of M/s Jindal Khemka & Co. for sale On commis sion basis.
Joginder Lal and Ram Nath were, however, ac cording to the prosecution, advised by some broker that since iron sheets were controlled items, they should insist on production of a bill showing purchase of these iron sheets by Umedi LaI. Joginder Lal and Ram Nath according asked Umedi Lal to produce 1010 the bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented 'surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur.
When this talk took place between Joginder Lal and Ram Nath on the one hand and Umedi Lal on the other, Umedi Lal was, according to the prosecu tion, accompanied by the appellant who was at the material time employed as a Guard in the Northern Railway.
Since Joginder Lal and Ram Nath refused to purchase the iron sheets, Umedi Lal removed the same in three carts and passed a receipt in, respect of the same in favour of M/s Jindal Khemka & Co. The prosecution case was that at this time also Umedi Lal was accOmpanied by three or four persons who included the appellant.
It appears that since M/s Shiv Rattan Mohatta did not re ceive delivery of the iron sheets consigned to them in Wagon No. SEKC 40765, they lodged a claim with the Railway Admin istration and this led to enquiries being made by the Rail way Administration.
Ultimately, the Railway Administration filed a first information report with the Special Police Establishment, Ambala Branch, and following upon the first information report, the police started investigation.
During the course of investigation, the police entertained suspicion against the appellant and they obtained from 'the appellant specimen handwritings PW 27/37 to PW 27/57 for the purpose of comparing them with the handwriting on the Rail way Receipt exhibit PU 10/A which was a forged document.
The Police also requested the Railway authorities to direct the appellant and one Ameeruddin, who was also an employee of the Railway Administration, to subject themselves to test identification parade at the hands of the Special Railway Magistrate, Patiala.
The appellant and Ameeruddin accord ingly went to Patiala and they were taken to the Central Jail and there, a test identification parade was held, at which Joginder Lal failed to identify the appellant but Ram Nath, after some hesitation, managed to identify him.
The specimen handwritings of the appellant Exs.
PW 27/ 37 to PW 27/57 were sent, along with the Railway Receipt exhibit PW 10, 'A, to B. Lal, Government Examiner of Questioned Docu ments and B. Lal gave his opinion that the writing marked at A1 on the Railway Receipt exhibit PW 10/A and the specimen handwritings PW 27/37 to 27/57 were all by One and the same person.
The appellant was, on the basis of this material, put up for trial before the Judicial Magistrate, 1st Class, Ludhiana.
The learned Magistrate convicted the appellant and his conviction was maintained in appeal as well as revision.
The question is whether the material on record was sufficient to justify the conviction of the appellant.
We have carefully gone through the evidence but we find it difficult to sustain the conviction of the appellant.
The only two pieces of evidence against the appellant are the evidence of B. Lal, the handwriting expert, who identi fied the handwriting on the forged Railway Receipt exhibit PW 10/A as that of the same person who wrote the specimen signatures Exs.
PW 27/37 to PW 27/57 and the evidence show ing the presence of the appellant with Umedi Lal at Ludhiana when the talk took place between Umedi Lal on the one 1011 hand and Joginder Lal and Ram Nath on the other in connec tion with the sale of the iron sheets.
We do not think that these two pieces of evidence are at all satisfactory and in any event on conviction can be rounded on them.
In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Rail way Administration with his Headquarters at Agra and he had nothing to do with the train by which Wagon No. SEKG .40765 was despatched from Munda to Bikaner, nor with the train which carried that wagon from Agra to Ludhiana.
He was not a Guard on either of these two trains.
There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station.
It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration,. could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time.
It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt exhibit PW 10/A was that of the same person who wrote the specimen handwrit ings exhibit 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to candemn the appel lant merely on the strength of opinion evidence of a hand writing .expert.
It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration.
This rule has been universally acted upon and it has almost become a rule of law.
It was held by this Court in Ram Chandra vs State(1) that it is unsafe to treat expert hand writing opinion as sufficient basis for conviction, but it may be relied upon when supported by other items o[ internal and external evidence.
This Court again pointed out in Ishwari Prasad vs Md. Isa(2) that expert evidence of hand writing can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar vs Subodh Kumar (3) where it was pointed out by this Court that expert 's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear_ direct evidence or by Circumstantial evidence.
This Court had again occasion to consider the evidentiary value o[ expert opinion in regard to handwriting in Fakhruddin vs State(4) and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evi dence of a handwriting expert and before acting upon such evidence.
the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.
It is interesting to note that the same view is also echoed in the judgments of English and American courts.
Vide Gurney vs Langlands(5) and Matter of Alfred (1) AIR 1957 SC 381.
(2) ; (3) AIR 1964 SC 529 (4) AIR1967 SC 1326 (5) 1822, 5B & Qld 330 1012 Fogter 's Will(1).
The Supreme Court of Michigan pointed out in the last mentioned case: Every one knows how very unsafe it is to rely upon any one 's opinion concerning the nice ties of penmanship Opinions are necessarily evil" and may be valuable, but at best this kind of evidence, vii".
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence being opinion evidence, is by its very nature, weak and infirm and cannot of itself form and the basis for a conviction.
We must, therefore, try to see whether,in the present case, there is, apart from the evi dence of the hand.
writing expert B. Lal, any other evidence connecting the appellant with the offence.
The only other evidence which was sought to be relied upon on behalf of the prosecution was that showing the presence of the appellant with Umedi Lal at Ludhiana when there was talk between Umedi Lal on the one hand and Jogind er Lal and Ram Nath on the other in regard to the sale of the iron sheets.
But this evidence is wholly unsatisfactory and does not inspire any confidence at all.
In the first place, it is difficult to see why the appellant should have one with Umedi Lal to Ludhiana for the purpose of selling the iron sheets.
The appellant was a mere railway Guard and even if it be assumed for the purpose of argument that his service were utilised for the purpose of forging the railway receipt exhibit PW 10/A, there is no reason why he should have been persuaded to accompany Umedi Lal to Ludhiana.
It is true that the appellant was on leave from 1st August, 1964 to 16th August, 1964 but from that circumstance, it does not follow that he had gone to Ludhiana in connection with the sale of the iron sheets.
Even according to the prosecution, the appellant was in Ludhiana only on 6th August, 1964 and that would not necessitate the appellant taking such a long leave from 1st August, 1964 to 16th August, 1964.
The leave taken by the appellant from 1st August, 1964 to 16th August, 1964would not necessarily support the inference that the appellant was present in Ludhiana on 6th August, 1964.
The appellant might have taken this long leave for some other purpose.
Moreover, it may be noted that Joginder Lal could not identify the appel lant at the rest identification parade held at the Central Jail, PatiaIa.
Ram Nath, of course, did identify the appel lant but that was after some hesitation. 'The Special Rail way Magistrate (PW 39) stated in cross examination that Ram Nath took some time in identifying the appellant.
The appellant in fact raised an objection before the Special Railway Magistrate, prior to the test identification parade, that he had a. doubt that he had been shown to the witnesses by the police.
The identification made by Ram Nath at the test identification parade can therefore.
inspire any confi dence in the mind of the Court.
Moreover, it is diffi cult to imagine how Ram Nath who is supposed to have seen the appellant for the first time on 6th August, 1964 on a stray occasion could identify him at a test identification parade held after about two and a half years on 25th Febru ary, 1967.
It not as if the appellant had any direct talk with Rain Nath on this 1013 solitary occasion.
The appellant was supposed to have merely accompanied Umedi Lal along with one or two other persons and it is impossible to believe that Ram Nath could have remembered his fact after such a long period as two and a half years.
We are not ' at all satisfied that the appel lant was with Umedi Lal when the latter is supposed to have negotiated with Joginder Lal and Ram Nath in connection with the saIe of the iron sheets.
It is indeed strange that the police could not trace Umedi Lal or even Bhoja Ram.
Bhoja Ram, according to the prosecution evidence, was frequently going to the Railway Station for taking delivery of goods on behalf of M/s Jindal Khemka & Co. and yet he could not be caught hold of by the police.
That is indeed a sad commentary on the efficiency of the police.
We fail to understand why the police did not try to find out what happened to the iron sheets where they went from the shop of M/s Jindal Khemka & Co. If the prosecution story is true, these iron sheets were removed by Umedi Lal from the shop of M/s Jindal Khemka & Co. and they must have been removed by some cartmen.
We find it difficult to believe that the police could not have pursued the matter and traced the iron sheets by making enquiries from the cartmen.
It is also intriguing why the police did not try to find out the where.
abouts of Bhoja Ram.
SureIy he could not have disappeared into the thin air.
It is not right for us to speculate but we cannot help feeling that M/s Jindal Khemka & Co. were not absolutely innocent in so far as this transaction is concerned.
Umedi Lal was a stranger to both Joginder Lal and Ram Nath and yet, accord ing to the prosecution case, Umedi Lal handed over the forged Rail.
way Receipt PW 10/A to Joginder Lal for the purpose of taking delivery of the goods without insisting on payment and even without settling the bargain.
The Railway Receipt Ex PW 10/A was found to be defective by Teja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, persuaded to accept the same Railway Receipt and deIivered the iron sheets against it at the instance of Bhoja Ram, who was a person frequently acting on behalf of M/s Jindal Khemka & Co. Then again, Joginder Lal and Ram Nath are supposed to have returned the iron sheets to Umedi Lal because some broker told them that they should insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do.
This also appears to be a rather 'ngenuous story made up by Joginder Lal and Ram Nath for the ose of showing as if the iron sheets did not remain with them.
indeed strange why they should have taken a receipt from Umedi ,7hen the latter removed the goods from their shop.
The iron belonged to Umedi Lal and if Umedi Lal took them back from der Lal and Ram Nath, there was no reason why the latter d have insisted on taking a receipt from him.
Presumably the .t was fabricated for the purpose of support ing their case that id not keep the iron sheets with them, because otherwise they have nO account for them.
It does appear to us prima facie edi Lal was a fictitious person and the iron sheets were taken of by M/s Jindal Khemka & Co. for themselves on the 1014 strength of the forged Railway Receipt PW 10/A.
But some how or the other, due to police inaction, they appear to have escaped and a small man like the appellant seems to have been made a scape goat.
We are of the view that the prosecution has totally failed to bring some the charge against the appellant and hence our order dated 28th January, 1977 setting aside the order of conviction and sentence recorded against the appel lant and acquitting him of the offences charged against him.
S.R. Appeal allowed.
| IN-Abs | A certain consignment of iron sheets despatched by M/s. Hindustan Steel Plant EXBNDM (Banda Bunda, near Bhilai) to Bikaner in wagon No. SEKG 4875 was carried to Ludhiana via.
Agra because at some point of time before it reached Agra, the labels attached to the wagons were either changed or removed and the entry in the vehicle summary guidance was also tampered with and changed to EXLAR to LDH indicating that the wagon was despatched from Lalitpur and its destina tion was Ludhiana.
One Umedi Lal, a resident of Agra, approached a firm called M/s. Jindal Khemka & Co. represent ed by its partners Joginder Lal and Ram Nath with a forged railway receipt exhibit PW 10/A written on a blank form stolen from the Railway Receipt Book maintained at Ban more Railway Station and offered to sell to them the iron sheets covered by the aforesaid consignment sent by M/s. Hindustan Steel Co. Ltd. to Bikaner.
Umedi Lal represented himself as the partner of M/s. Bansi Dhar & Sons.
, Lalitpur_ since the forged RR (to self) bore the name of the consignor as M/s. Bansi Dhar & Sons, Lalitpur.
After negotiations when one of the partners, Mr. Joginder Lal presented the RR and claimed the goods, a goods clerk on duty, by name Teja Singh Sodhi, entertained a doubt and returned the RR as defective.
Thereafter, Umedi Lal accompanied by one Bhoja Ram, a wash ing soap dealer presented exhibit PW10A himself and obtained the delivery of the goods from the very same goods clerk, Teja Singh, who entertained the suspicion about the RR earlier.
Joginder Lal later on refused to purchase the iron sheets being a controlled item, in the absence of bill of purchase, but, however, took a receipt exhibit PW45/A from Umedi Lal to the effect that the latter has taken back the iron sheets brought by him to their godown.
The appellant, a guard working in the Northern Railway, was stated to have accompa nied and been present on the day i.e., 6 8 1964 when Jogind er Lal asked Umedi Lal to produce the original purchase bill.
On this basis coupled with the circumstances, namely, (a) his absence on leave from 1 8 1964 to 16 8 1964; (b) the tally of his handwriting given before the Police during the investigation with that of exhibit PW10/A as opined by the handwritten expert and (c) his identification by Ram Nath, one of the partners of M/s. jindal Khemka & Co. at the identification parade the appellant was put on trial for the offences under sections 109/420, 411,468, 471 but convicted for offences under sections 468, 411, 109/420 I.P.C. and sentenced to 2 years R.I. with a fine of Rs. 1,000/ or in default to undergo further R.I. for six months under section 468 and to R.I. for one year each under section 411 and 109/420 LP.C. the substantive sentences to run concurrently.
The appeals before the Sessions Judge and the revision before the High Court were dismissed.
Allowing the appeal by special leave, the Court, HELD: (1) It is well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
It is unsafe to base a conviction solely on expert 's opinion without substantial corroboration.
In the instant case, it would be extremely hazrdous to condemn the appellant merely on the strength of opinion 'evidence of a handwriting ' expert.
[1011C D] Ram Chandra vs State AIR 1957 SC 361; Ishwari Prasad vs Md. Isa ; ; Shashi Kumar vs subodh Kumar AIR 1964 SC 529 and Fakhruddin vs State AIR 1967 SC 1326, reiterated.
1008 Curnev vs Langlande (1622) 5 B & AId.
330; Morllar of Alfred Foster 's Will , quoted with approval.
(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that he had gone to Ludhiana in connection with the sale of iron sheets and that he was present in Ludhiana on 6th August 1964.
The identification by Ram Nath after some hesitation, the improbability of identifying after 21/2 years a person who is supposed to have merely accompanied another only once and the inability of Joginder Lal to identify him all these are circum stances, which militate the prosecution theory of the appel lant 's presence.
No conviction can therefore, be founded on such evidence.
[lO12D A, 1013 A B] (3) In the instant case the various facts, namely, inability of the Police to trace Umedi Lal or even Bhoja Ram who was frequently going to the Railway Station for taking delivery of goods on behalf of M/s. Jindal Khemka & Co. and apprehend them, the passing on of the forged exhibit PW10/A to joginder Lal by Umedi Lal, a stranger without insisting on payment and even without settling the bargain, the delivery of the goods the next day to Umedi La1 by Teja Singh who earlier suspected the genuineness of the RR when presented by Joginder Lal,the return of the iron sheets on the advice of some, broker on the non production by Umedi Lal of a bill of purchase, taking a receipt exhibit PW45/A when Umedi Lal removed back his goods etc.
prima facie indicate that Umedi Lal was a fictitious person and M/s. Jindal Khemka & Co. were not absolutely innocent in so far as this transaction was concerned.
This iron sheets appeared to have been taken delivery of by.
M/s. Jindal Khamka & Co. for themselves on the strength of the forged Railway Receipt No. PWIO/A.
But some how or the other, due to police inaction, they appear to have escaped and a small man like the appellant seems to have been made a scape goat.
The prosecution has totally failed to bring home the charge against the appellant.
[1013C H, 1014 A B] [Their Lordships expressed their dissatisfaction in the way the case was investigated and observed that "it was indeed a sad commentary on the efficiency of the Police".] [1013B C]
|
riminal Appeal No. 447 of 1974.
(Appeal by Special Leave from the Judgment and Order dated the 14th March 1974 of the Delhi High Court in Crimi nal Revision Petition No. 61 of 1974.
Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appel lant.
V.C. Mahajan and S.L.Aneja, for 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 March 14, 1974, allowing the revision application of.
respondent Dev Raj Vijh and 'dismissing the appellant 's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code.
Appellant Raj Kumari Vijh was married 'to respondent Dev Raj Vijh in Delhi, in June 195 '0.
It is the admitted case of the parties that they were living separately from 1953.
The appellant filed her 999 first application for maintenance under section 488 of the Code, in 1955, but it was dismissed.
The respondent filed an application for divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh).
It was ultimately dismissed on appeal on March 29, 1968.
In the meantime the appellant filed a suit against the respondent for recovery of her "stridhen" in Delhi in 1956.
It was decreed on appeal by the Delhi High Court in 1967, for Rs. 6,458/ .
The appel lant gave a notice to the respondent on June 24, 1968, claiming maintenance as a 'deserted wife.
Nothing came out of it and she filed the present application under section 488 of the Code in the .Court of the Delhi Magistrate on March 18, 1969.
It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P.S. Narela, Delhi, towards the end of December 1968, because the respondent visited her there for a settle ment and for non execution of the decree which she had obtained for Rs. 6,458/ on account of her "stridhan".
It was stated in the application that the parties lived at Lampur, as husband and wife and there was cohabitation.
The appellant prayed for an order allowing her Rs. 450/ per month for maintenance ' as the respondent had sufficient means but had neglected or refused to maintain her.
The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur.
An objection was however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of res judicata.
An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never resided, permanently or temporarily in Delhi.
We have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed.
The Magistrate passed an order for production of evidence.
The respondent thereupon prayed that the question of juris diction may be decided before recording the evidence.
That was not agreed to by the magistrate.
He made an order on November 19, 1969 that the question of jurisdiction must await the recording of the evidence on the whole case.
The respondent did not challenge that order or apply for permis sion to file additional reply.
On the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the appellant 's witnesses did not even know him.
Both the parties led their evidence, al though it appears that the respondent did not like to avail of the opportunity which was given to him to lead evidence on the merits.
He did not even apply for permission to file any ,additional reply when the Magistrate recorded the appellant 's evidence on her application for maintenance as a whole.
Ultimately the Magistrate made his final order on May 21, 1973.
He took the view that there was no specific denial of the appellant 's allegation that the parties last resided together, as husband and wife, in village Lampur, in Delhi, towards the end of December in 1968.
1000 He took notice of the fact that the plea of bar against the maintainability of the second application because of the dismissal of the first application, was not pressed by the respondent and after referring to the entire evidence in details, he reached the conclusion that he had the jurisdic tion to entertain the application, and granted maintenance allowance at the rate of Rs. 125/ per month, with effect from March 18, 1969, along with an order regarding the mode of payment of the arrears.
The respondent applied for a revision of that order, and the Additional Sessions Judge referred the case, to the High Court on November 30, 1973, for dismissal of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had no juris diction to entertain it.
As the High Court has allowed the reference, and dismissed the revision application which was filed by the appellant for an increase in the mainte nance allowance, the appellant has come up to this Court by special leave.
In its impugned judgment dated March 14, 1974, the High Court has recorded the finding that the parties did not reside together at village Lampur, and for that reason it took the view that the Delhi Court had no jurisdiction to entertain the appellant 's application under section 488 of the .Code.
Counsel for the appellant has vehemently urged that the finding of the High Court is incorrect, but as it is a finding of fact, we shall proceed on the assumption that does not call for interference in this appeal.
The question however remains whether section 531 of the Code would be applicable to the case? The High Court has held that the section would not be applicable, and that is why it has passed the impugned order for the dismissal of the application of the appellant under section 488 of the Code.
The High Court has taken that view for the following reasons , (i) The objection as to jurisdiction was raised "right at the first instance by the husband".
(ii) The respondent "specifically reserved his right to file a written reply on merits after the question of jurisdiction was decid ed".
(iii) As the respondent had "reserved his right to lead evidence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on merits . . " (iv) There was "obvious prejudice and failure of justice" the respondent as he never led evidence on the merits.
(v) It was necessary for the appellant to.
prove that the respondent had refused and neglected to maintain her, and that "obviously requires an opportunity to be given to the husband to prove his case,, if it be one, that he has not refused or refuses or neglected to maintain his wife or what his income and means is".
1001 (vi) "Before a decision on merits can be given the husband has the undoubted request (sic) to lead evidence on merits".
(vii) A proceeding cannot be entertained in a court which has jurisdiction by simply taking recourse to section 531 of the Code, when an objection has been taken against main tainability, for otherwise the provision relating to jurisdiction would become nuga tory.
Section 531 "can cure the infirmity after the case has been fought on merits.
" We have examined these grounds, but we are constrained to say that they are not tenable in the facts and circumstances of this case.
Section 531 of the Code reads an follows, "531.
No finding, sentence or order of any Criminal Court shah be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
" The section therefore relates to a defect of jurisdiction.
As has been stated by this Court in Purushottamdas Dalmia vs The State of West Bengal(1) those are two types of jurisdic tion of a criminal court, namely, (1) the jurisdiction with respect to the power of the court to try particular kinds of offences, and (2) its territorial jurisdiction.
While the former goes to the root of the matter and any transgression of it makes the entire trial voild, the latter is not of a peremptory character and is curable under section 531 of the Code.
Territorial jurisdiction is provided "just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court '.
Sub section (8) of section 488 in fact provides that proceedings under the section "may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.
" This therefore is ordinarily the requirement as to the fling of an application under section 488 within the limits of the jurisdiction of the magistrate concerned.
So where a magistrate has the "power ' to try a particu lar.
application under section 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why section 5 31 of the Code should not be applicable to the order made by him.
It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531.
(1) ; 1002 The first reason why the High Court .has not given the benefit of section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent "right at the first instance.
" Counsel for the respondent has strenuously argued that such.
a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the, impression that section 531 of the Code, would, at any rate, validate his order.
That, according to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531.
Reliance in this connection has been placed on Radharani vs Rahim Sardar(1), Sakuntala vs Thirumalayya(2), State vs Tavara Naika(3), Sultan Chand vs Yogindra Nath Bar (4), and Satwant Singh vs Smt.
jaswant Kaur (5).
As is apparent, section 531 does not entitle a magis trate, who is not a magistrate of the class referred to in sub section (1) of section 488, to proceed with an applica tion for maintenance.
In fact even a District Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his juris diction under sub section (8) of section 488.
The true meaning of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a magistrate, who is otherwise duly empowered to make an order under sub section (1 ) of section 488 of the Code, cannot proceed with an application under that subsec tion for the purpose of deciding whether he has the territo rial jurisdiction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction.
Section 531 cannot thus be said to be inapplicable to a case where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contention about the correct place of the pro ceeding, and the magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities.
In other words, there is no reason why, in such a case, section 531 should not be applicable merely because the magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it.
If the magistrate,in this case, had thought of assuming juris diction under section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length in his order and arrived at the decision that he had the jurisdic tion.
We have gone through the cases which have been cited by the counsel for the respondent.
Radharani and another vs Rahim Sardar (supra) was a case where the magistrate pro ceeded with the trial (1) A.I.R. 1946 Calcutta 459.
(2) (3) A.I.R. (4) A.I.R. 1944 Peshawar 25.
(5) 1003 in the wrong local area with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction.
This is however not so in the present case, because the Magistrate recorded the evidence on the question of territorial jurisdiction, and he went to the extent of making 'a reference to the entire evidence which was led on the point.
Moreover he took note of the fact that the re spondent had not specifically dened that he lived at village Lampur with the appellant.
This is therefore not a case where the Magistrate proceeded with the application even though he had the knowledge that it did not fail within his jurisdiction.
The same is the position in regard to Sakunlala vs Thirumalayya (supra) and it also cannot avail the respondent.
We have gone through State vs Tavara Naika (supra).
It was not a case under section 488 of the Code.
What has been said there is that the curative provisions of section 531 should not be an excuse for overlooking a mate rial irregularity pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial.
It does not therefore lay down anything different from what has been stated in Radharani vs Rahim Sardar (supra).
It was a case where the accused was commit ted to a wrong sessions division, and the mistake was cor rected because the trial had not commenced.
Sultan Chand & another vs Yogindra Nath Baz (supra) was also not a case under section 488 of the Code.
It has been held in that case that when the question of jurisdiction has been raised before the trial magistrate, it is his duty to determine the point, otherwise the provisions 'as regards jurisdiction would never be enforced and that section 531 cannot be applied to such a case.
As has been stated, the Magistrate in the present case addressed himself to the question of jurisdiction, recorded detailed evidence on it, considered the evidence in his order and reached the conclusion that the application was maintainable in his court.
This is therefore a different case.
Satwant Singh vs Smt.
Jaswant Kaur (supra) was a case under section 488 of the Code.
It has been held there that where the question of jurisdiction had been raised before the trial magistrate, it wa.s his duty to determine the point, and that he cannot proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction.
As has been shown, this was not so in the present case.
It would thus appear that the High Court erred in taking the view that section 531 would not be applicable to this case merely because an objection as to jurisdiction was raised by the respondent "right at the first instance.
" The second ground mentioned by the High Court is that section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decid ed,.
We find that this is clearly a misstatement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent re served any such right to file a written reply on the merits at a later stage, after the question of jurisdiction was decided against him.
On the other hand, we find that the Magistrate specifically overruled the objection of the respondent, and made an order directing the parties adduce their evidence on the whole case and specifically rejected 16 206SCI/77 1004 the respondent 's application for deciding the question of jurisdiction in the first instance.
The Magistrate has clearly stated that an order was made.
by him for the pro duction of evidence "in the case", and that he decided to defer a decision of the question of jurisdiction until after the evidence had been recorded as a whole.
The Magis trate has further stated that the respondent did not file his further or additional reply even then.
The High Court therefore undoubtedly erred in thinking that the respondent specifically reserved his right to file a written reply on the merits later on.
As has been shown, no such reservation was permitted by the magistrate, and counsel for the re spondent was not able to show how the respondent could unilaterally make such a reservation for himself.
It may be that, in a given case, it may be advisable for a magistrate to confine the evidence of the parties, in the first in stance, to any preliminary objection relating to jurisdic tion, and to decide the controversy on the merits thereaf ter, but as this was not so in the present case, we arc unable to find any justification for the second ground mentioned.
by the High Court.
The third ground of the High Court is also untenable, for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on the merits and did not delib erately give up that right. 'Here again, counsel for the respondent was unable to show how it could be said that the respondent made any such reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his application for deciding the question of jurisdiction as a preliminary question and had passed an ,order for the pro duction of all the evidence in the case.
If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that he had reserved the right to lead evidence at a later stage.
The High Court has taken the view that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits.
But the High Court failed to appreciate that the respondent had to thank himself for that predicament.
He knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect.
He also knew that the Magis trate had called upon the parties to lead all their evi dence.
The appellant obeyed that order and examined her witnesses.
The respondent persisted in thinking that the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it sufficient to confine his evidence to the question of jurisdiction.
if he deliberately refrained from producing his evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice.
As it is, Counsel for the respondent has not been able to refer to any application of the respondent.
whether oral or documentary, expressing a desire to lead his evidence on the merits.
The fact of the matter therefore is that the respondent had decided that he would not lead any evidence on the merits, and confined his evidence to the question of jurisdiction.
It may be that, as 1005 has been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance.
The fifth ground mentioned by the High Court is that before an order could be passed under section 488(1) it was necessary to prove that the husband had refused or neglected to maintain his wife, and that required an oppor tunity to be given to the husband to prove, his case.
But the argument is futile because the respondent did not set up any defence on the merits.
On the other hand, the Magis trate.
found that there was no controversy about the facts that the appellant was the lawfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain her.
In its sixth ground the High Court has stated that before a decision could be given on the merits, the husband could make a request for permission to lead evidence on merits.
It would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magistrate.
Lastly, the High Court has taken the view that a pro ceeding cannot be maintained by a court which has no juris diction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relating to jurisdiction would become nugatory.
This point has already been considered earlier and need not be re examined.
It is thus quite clear that the High Court committed a serious error of law in refusing to.
invoke section 531 in the facts and circumstances of this case.
It is not in controversy that the Magistrate who took the proceedings, on the appellant 's application under subsection (1) of section 488, was one of the magistrates mentioned in that sub sec tion.
The respondent raised a controversy as to his local jurisdiction, and the Magistrate ordered the parties to lead all their evidence.
He specifically rejected the applica tion for confining the evidence to the question of jurisdic tion, or to try that as a preliminary issue.
It is there fore futile to contend that the Magistrate gave himself jurisdiction by recourse to section 531 of the Code.
On the other hand in his final order, he set out the points which arose for consideration on the question of jurisdic tion, made a mention, at length, of the entire evidence on that question and took into consideration the conduct of the respondent and the ease law as well as the respondent 's reply.
All that led him to the conclusion that he had jurisdiction to try the application.
There is therefore no reason why section 531 should not be held to be applicable to this case.
As has been shown, it is futile for Counsel for the respondent to raise the question of prejudice, or to say that there was a failure of justice, because the respondent did not lend his evidence on the merits.
As we have pointed out, he did So deliberately and in 1006 defiance of the order of the Magistrate calling upon him to lead his evidence on the whole case.
The respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife, and made an order that he shall make a monthly allowance of Rs. 125/ per mensem for her maintenance.
The appeal is allowed and the impugned order of the High Court dated March 14, 1974, is set aside, with costs.
P.B.R. Appeal allowed.
| IN-Abs | Section 531 of the Criminal Procedure Code, 1898 provides that no finding, sentence or order of any criminal Court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions divi sion, district, subdivision or other local area, unless it appears that such error has in Tact occasioned a failure of justice.
In her claim for maintenance from the respondent, who was her husband, the appellant filed a petition under section 488 Cr.
P.C. in the Court of a Magistrate.
The respondent took objection to the Court 's jurisdiction to try the case on the ground that the parties did not reside within its jurisdic tion.
The Magistrate passed an order that the decision on the question of jurisdiction must await the recording of evidence on the whole case.
The respondent did not chal lenge that order.
Ultimately the Magistrate held that he had the jurisdiction to entertain the application and decided it on the merits.
The Sessions Judge referred the respond ent 's revision application to the High Court.
The High Court heard that by taking recourse to section 531, proceedings could not be entertained in a Court which had no jurisdic tion more so when an objection had been taken against its maintainability and that section 531 could cure the infirmity only if the case had been fought on merits.
Allowing the appeal, HELD: The High Court erred in taking the view that section 531 would not be applicable to this case merely because the objection as to the jurisdiction was raised by the respond ent right at the first instance.
[1003 F] 1.
(a) Territorial jurisdiction is provided as a matter of convenience for the Court, the accused and the witnesses.
Under section 488(8) a proceeding may be taken against any person m any district where he resides or is or where he last resided with his wife.
[1001 F G] (b) Where a Magistrate has the power to try a particular application under section 488 and the controversy relates solely to his territorial jurisdiction, there should, Ordinari ly, be no reason why section 531 should not be applicable to the order made by him.
[1001 H] (c) The true meaning_of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a Magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a Magistrate, who is otherwise duly empowered to make an order under section 488(1), cannot proceed with an application under that subsection for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application on the merits if he fin ds that he has the territorial juris diction.
Section 531 cannot be said to be in applicable to a case where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contentions about the correct place of the proceeding, and the Magistrate finds it neces sary (after taking note of the entire evidence on the con troversy) to arrive at a decision on the basis of the bal ance of probabilities.
There is no reason why, in such a case, section 531 should not be applicable merely because the Magistrate, while considering the evidence relating to jurisdiction, unwittingly 998 makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it If the Magistrate in this case, had thought of assuming jurisdiction under section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdic tion, or referred to it at length in his order and arrived at the decision that he had the jurisdiction.
[1002 D G] Purushottamdas Dalmia vs The State of West Bengal ; followed.
Radharani vs Rahim Sardar.
A.I.R. 1.946 Calcutta 459.
Sakuntala vs Thirumalyya , State vs Tavara Naika A.I.R. , Sultan Chand vs Yogin dra Nath Baz.
A.I.R. 1944.
Peshawar 25 and Satwant Singh vs Smt.
Jaswant Kaur, , held inapplicable.
In the instant case, the Magistrate was one of the Magistrates mentioned in section 488( 1 ).
He had specifically rejected the respondent 's application for confirming the evidence to the question of jurisdiction or to try that as a preliminary issue.
It cannot therefore be said that he had given himself jurisdiction by recourse to section 531.
The Magistrate had set out the point that arose for considera tion, discussed the entire evidence and taken into consider ation the conduct of the respondent all of which led to the conclusion that he had the jurisdiction to try the applica tion.
There is therefore no reason why section 531 should not be held to be applicable to this case.
[1005F H] (d) The High Court erred in holding that section 531 would not be applicable because the respondent had reserved a right to file a written reply on merits after the question of jurisdiction had been decided.
The Magistrate had spe cifically overruled the respondent 's objection, and directed the parties to adduce evidence, and deferred the decision on the question of jurisdiction until after the evidence had been recorded.
The respondent did not file his reply on the merits.
[1003G H] (e) The High Court erred in holding that there was failure of justice because the respondent never led evi dence.
The Magistrate called upon the parties to lead evidence.
While the appellant obeyed the order, the re spondent persisted in thinking that the Magistrate had no jurisdiction, refused to examine his witnesses on merits, and chose to confine his evidence to the question of juris diction.
[lOO4F H]
|
Appeal Nos. 1298 and 1299 of 1969.
Appeal from the Judgment and Decree dated the 9th Au gust, 1966 of the Punjab and Haryana High Court in Regular First Appeals Nos. 134 and 120 of 1963.
N.H. Hingorani for the Appellant.
O.P. Sharma for Respondent.
The Judgment of the Court was delivered GOSWAMI, J.
These appeals are by certificate of the High Court of Punjab and Haryana.
Civil Appeal No. 1299 of 1969 is concerned with the appellant 's suit for declaration of his dismissal order dated October 21, 1959, as void and illegal.
Civil Appeal No. 1298 of 1969 arises out of his suit for arrears of salary.
Both the matters were heard together in the.
High Court and the judgment out of which Civil Appeal No. 1299 of 1969 arises is the principal judg ment following which a short order was passed by the High Court dismissing the other suit of the appellant for arrears of salary.
The High Court granted certificates in both the appeals.
It will be sufficient to deal with Civil Appeal No. 1299 of 1969 in this judgment as the decision therein will govern the other appeal.
The facts may now be briefly stated: The appellant who was the plaintiff in the court below was appointed as a Clerk in the Patiala State some time in July 1948.
On the formation of the new State of Punjab on November 1, 1956, with the 958 merger of the erstwhile Pepsu and Punjab States the appel lant was integrated in the service of the new State of Punjab as permanent Assistant in the grade of Rs. 150 10 300/ and was actually getting Rs./70/ per month on October 21, 1959, the date of his dismissal in the office of the Financial Commissioner, Punjab.
The appellant instituted a suit in March 1962 challeng ing his order of dismissal dated October 21, 1959, as void and unconstitutional praying for a declaration that he continued to be in service of the Punjab State.
In June 1962 he instituted a second suit as pauper claiming a decree for about Rs. 8,689/ as arrears of his ' salary and allowances and also a further decree for Rs. 278/12/ per mensem from 5.6.1962 to 4.7.1962 and Rs. 290/ per mensem from 5.7.1962 upto the date of the decree.
Both the suits were decreed by the trial court.
According to the plaint, the appellant, due to serious illness of his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the.
sanction of the competent authority.
He obtained extension of leave on account of illness of his mother, wife and daughter.
Meanwhile the appellant himself became seriously iII and prayed for leave from 1.11.1958 to 28.2.1959 0n the basis of a medical certificate granted by Dr. Inder Singh Sodhi,, Retired Civil Surgeon, Pepsu, Patia la.
The authorities declined to sanction the leave.
The appellant also.
continued to be seriously ill and was unable to attend his duties.
When he.
recovered he reported for duty at Simla on March 2, 1959 and he was permitted to resume his duty on furnishing.
a certificate of fitness granted by the aforesaid Retired Civil Surgeon.
On January 27, 1959, the appellant was served with a chargesheet by the Financial Commissioner (Development) Punjab asking him to show cause why he should not be dismissed from Government service for his wilful absence from duty after the expiry of the earned leave sanctioned to him upto October 31, 1958, which was described as "misbeha viour".
The chargesheet, inter alia, stated: "(1) .
You deliberately deed the orders and again applied for extension of leave upto the 31st December, 1958 reigning yourself to be iII, and also threatened that in case leave was not allowed, you might be granted interview with the Revenue Minister . " X X X X (2) That on the one hand you have been applying for grant of extension of leave on account of your own illness and on the other, you have requested that you may be allowed to appear in B.A. Examination to be held in April, 1959.
This, therefore, clearly shows that you are not actually ill but are malin gering, and have knowingly defied Government orders.
959 (3) That your wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October, 1958, is a misbehaviour".
The appellant submitted his explanation on March 11, 1959.
There was an enquiry by the Deputy Secretary (Development) in May 1959.
He was served with a second show cause notice on August 14, 1959, enclosing the report of the Enquiry Officer.
The appellant submitted his representation to.
the said notice on October 6, 1959.
On October 21, 1959, the Financial Commissioner (Revenue) passed the order of dis missal.
As already stated, two suits were filed by the appellant in 1962.
The Subordinate Judge, First Class, Patiala, decreed both the suits on January 15, 1963.
The State Government appealed to the High Court and the same was allowed on August 9, 1966 and both the suits were dismissed.
That is how these appeals came before us on certificates.
We are concerned in these appeals with only one point which, if it is held in favour of the appellant, will con clude the matter and it will not be necessary to deal with the other questions with reference to the illegalities in the course of the departmental enquiry alleged by the appel lant.
It is submitted on behalf of the appellant that the order of dismissal is invalid on account of violation of Article 311(1) of the Constitution.
The following facts are relied upon by the appellant in order to sustain his submission.
It is admitted by the respondent that the appellant initially joined service in the State of Patiala in 1948 as a Clerk and he was confirmed as an Assistant in the Pepsu Civil Secretariat by an order dated October 31, 1956, of His Highness the Rajpramukh, which is the previous day of the 'appointed day ' under the State Reorganisation Act, 1956.
Thus he was integrated in the new State of Punjab as a confirmed Assistant.
Before his integration in Punjab he was governed by the Patiala and East Punjab States Union Civil Services (Punishment and Appeal) Rules, 1953 (briefly the Pepsu Rules) which were made in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
By a Notification of the Punjab Government No. 976GII 87/2499, dated February 9, 1957, these Pepsu Rules continue to apply as from 1st November, 1956, to the corresponding services, posts and personnel of the new State of Punjab till further orders.
Rule 6 of the Pepsu Rules provides as follows : "6.
Authority to impose punishment.
Subject to the provisions of clause (1) of Article 311 of the Constitution of India, the authorities competent to impose any of the penalties specified in rule 4 upon the persons to whom these rules apply, shall be such as may be prescribed.
by Government in the rules regulating the appointment and conditions of service of such persons".
Dismissal is one of the penalties provided under rule 4 (see rule 4 (vii).
As provided under Rule 6 above men tioned, the Rajpramukh 960 under Article 309 of the Constitution by a notification in the Pepsu Gazette of Juno 27, 1954, made appropriate rules on 14th June, 1954, determining the authorities competent to impose penalties on members of certain services and holders of certain posts in connection with the affairs of the State.
Item No. 14 in the Schedule to these rules mentions "Members of Class III and IV Services in Sectt." and.
the punishing authority for dismissal of such employees is the State Government.
It is, therefore, clear that under the Pepsu Rules which governed his conditions of service the State Government alone was competent to impose the punishment of dismissal.
Under the Pepsu General Clauses Act, 1953, "State Government shall mean, in relation to anything done or to be done after the commencement of the Constitution, the Rajpramukh".
(See section 2(46).
As noted earlier, factually, the appellant was con firmed and necessarily appointed by the Rajpramukh.
Under the Pepsu Rules the Rajpramukh alone was the appointing authority.
The appellant therefore, cannot be removed from service by any authority subordinate to the Governor in Punjab.
The coordinate authority in Punjab is the State Government.
The Governor of Punjab alone, therefore, was competent to pass the order of dismissal of the appellant.
The Financial Commissioner (Revenue) is an authority subor dinate to the Governor.
He was, there, not competent to pass the order of dismissal.
The order of dismissal is violative of Article 311 (1) of the Constitution and is, therefore, invalid and is liable to be struck down.
Mr. Sharma, on behalf of the respondent, submits that there is no violation of Article 311 (1) of the Constitu tion.
The appointing authority for a post held by the appellant in the State of Punjab is the Financial Commis sioner (Revenue).
He submits that the appointing authority of the appellant before his integration into the State of Punjab does not come into the picture.
He adds that this submission of his is in consonance with the provisions of section 116 of the (brief ly the Act).
We may, therefore, read section 116 of the Act: "116(1) Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new Part A State or a Part C State shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new Part A State or Part C State in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such Part C State, as the case may be 961 (2) Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office".
Mr. Sharma submits, relying upon the provisions of section 116(1), that since the appointing authority for an Assistant in the State of Punjab is the Financial Commissioner (Revenue) it follows that he is the appropriate authority under section 116(1) to impose the penalty of dismissal.
This submission follows from what the High Court accepted in the impugned judgment in the following words: "Our attention has not been drawn on behalf of the learned counsel for the respond ent to any rule according to which the Gover nor of Punjab, as is contended, is the proper authority for the appointment of Assistants.
Indeed, it is not disputed that if the plain tiff had been appointed as Assistant in the State of Punjab, then the Financial Commis sioner (Revenue) would have been the appropri ate authority competent to enquire into the petitioner 's conduct and impose the penalty of dismissal; in other words, in that case, the appointing authority could not have been higher in rank than the Financial Commissioner (Revenue).
It is certainly not the plain tiffs respondent 's case that appropriate authority for appointing Assistants in the State of Punjab is the Governor".
We are unable to appreciate the above line of reasoning of the High Court.
Section 116(1) is very clear.
To concretise the appellant 's case in terms of section 116(1), it is sufficient to state that the appellant who, immediate ly before the appointed day, was holding the post of an Assistant in the former State of Pepsu, shall continue to hold the same post in the new State of Punjab and shall be deemed as from that day to have beer/duly appointed to such post by the Government of Punjab.
We are not concerned in the instant case about the appointment being deemed to be made by " 'other appropriate authority" in the State of Punjab since the appellant had been appointed by the Rajpra mukh of Pepsu which is equivalent to the State Government of Pepsu and the coordinate authority in the new State of Punjab is the Governor of Punjab.
The argument that in the new State of Punjab the Financial Commissioner (Revenue) is the appropriate authority for appointing Assistants is absolutely irrelevant in the context of section 116(1) which enables the status quo ante to continue except where the post ceases to exist under the provisions of the Act.
It is also important to bear in mind the provisions of section 115(7) of the Act where under the proviso thereto "the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) shall not be varied to his disadvantage except with the previous approval of the Cen tral Government".
One of the conditions of service of the appellant was that having been appointed by the State Government of Pepsu he could be only dismissed by the State Government of Pepsu if he had continued there.
962 Under section 116 when he is integrated in the new State of Punjab he carries with him 'that condition of service with regard to his termination of employment and it cannot be.
varied to his disadvantage, under section 115(7) of the Act except with the previous approval of the Central Gov ernment.
(See Takhatray Shivdatray Mankad vs State of Gujarat(1)and Bholanath J. Thakar vs The State of Saurashtra(2).
No such approval of the Central Government in the instant case is produced before us.
It is, there fore, clear that an authority subordinate to the Governor of Punjab was not competent to pass the order of dismissal of the appellant.
Mr. Sharma submits that the Punjab Financial Commis sioner 's Office (State Service Class III) Rules, 1957, are applicable in the instant case.
Therefore, under rule 4 thereof the Financial Commissioner is the appointing author ity for Assistants, the category to: which the appellant belongs.
He adds that even though these Rules may be disad vantageous to the appellant he cannot complain on account of the approval of these Rules by the Central Government under section 115(7) of the Act.
Mr. Sharma submits that these Rules received the approval of the Central Government as will appear from the general circular dated May 11, 1957, to all the State Governments.
He further submits that in N. Raghavendra Rao vs Deputy Commissioner,South Kanara, Mangalore(a) and in a recent decision in Mohammad Shujat Ali & Ors.
vs Union of India & Ors. etc.
,(4) this Court referred to that circular of May 11, 1957, and held that that circular amounted to general approval under the proviso to section 115(7) of the Act.
We are, however, unable to see how this memorandum of May 11, 1957 can be called in aid as 'previous approval ' under section 115(7) of the Act when the Punjab Financial Commissioner 's Office (State Service.
Class III).
Rules, 1957 were already promul gated on February 28, 1957.
Approval under section 115(7) is previous approval and not subsequent ratification.
The above decisions, therefore, do not come to the aid of the respondent.
Mr. Sharma also drew our attention to a decision of this Court in Rajvi Amar Singh vs The State of Rajasthan(5) which is clearly diStinguishable on facts.
This Court was not called upon in that case to consider the provisions of the State Reorganisation Act.
Our attention has been drawn by the appellant to.
an unreported judgment of this Court in Mysore State and Road Transport Corporation, etc.
vs Mirja Khasim Beg & Anr.
etc.(6) pronounced on December 1, 1976.
This Court had to deal with a similar question although appertaining to: the "competent authority" under section 116(2) of the Act in the background of Article 311(1) of the Constitution.
The following passage from that decision will make the. point clear: (1) ; (2) A.I.R. 1954 S.C. 680.
(3) ; (4) ; (5) [1958] S.C.R.1013.
(6) C.A.S. Nos.
1601 1609 & 2402 2405 of 1968 dated 1 12 1976.
963 "In the instant cases, the first re spondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State.
On the coming into force of the , on November 1, 1956, they were to be deemed by virtue of sub section (1) of section 116 of the to.
have been appointed with effect from that date to the posts held by them on that date by the appropriate au thority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad.
The authority equivalent to or coordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to.
the appellants ' own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'compe tent authority ' in terms of sub section (2) of section 116 of the .
The fact that there was no post of Superintendent of the Traffic in the Mysore.
Government Road Transport Department in the State of Mysore is of no consequence.
Such being the position, the first respondent could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 115(7) of the . ".
In the result both the judgments of the High Court are set aside and the judgments and decrees of the Subordinate Judge, First Class, Patiala, stand restored.
The appeals are allowed with costs.
We are thankful to Mr. Hingorani for his assistance as amicus curiae in these appeals.
P.H.P. Appeals allowed.
| IN-Abs | The appellant was appointed as a clerk in the Patiala State in 1948.
On the formation of the new State of Punjab in 1956, the appellant was integrated in the service of the new State of Punjab as permanent Assistant.
The appellant overstayed leave and.
therefore, after holding an enquiry the Financial Commissioner.
Punjab dismissed him from serv ice in October, 1959.
Appellant filed two suits, one for a declaration that his dismissal order was void and illegal second for arrears of salary on the basis that the dismissal was illegal.
The trial Court decreed both the suits.
The High Court in appeal reversed the decrees of the trial Court and dismissed the suits.
In the appeals by certificate the appellant contended that the appellant was confirmed in the State of Patiala by the order of the Raj Pramukh.
Before its integration he was governed by the Patiala and East Punjab States Union Civil Services (Punishment and Appeal) Rules 1953 which were made in exercise of powers conferred by proviso to article 309 of the Constitution.
By a notification of the Punjab Govern ment dated 9 2 1957 the said 1953 Rules were made applicable to the corresponding services from 1st November, 1956 on wards till further orders in the new State of Punjab.
Under the 1953 Rules, the State Government was the appropriate authority for dismissing members of Class Iii and IV.
Under section 2(46) of the Pepsu General Clauses Act, 1953.
State Government means the Rat Pramukh.
The appellant, therefore, contended that he cannot be removed from service by any authority subordinate to the Governor of Punjab and since the Financial Commissioner is an authority subordinate to the Governor.
he was not competent to pass the order of dismissal.
The respondent contended that the appointing authority for the post held by the appellant in the State of Punjab is the Financial Commissioner and, therefore.
he is the appro priate authority under section 116(1 ) of the States Reorganisa tion Act, 1956 to impose the penalty of dismissal.
Second ly, in the present case the Punjab Financial Commissioner 's Office (State Services Class III) Rules.
1957, apply.
Although the said rules are more disadvantageous to the appellant since they have received the approval of the Central Government by the General Circular dated 11 5 1957, the appellant was rightly dismissed by the Financial Commis sioner.
Allowing the appeals.
HELD: 1.
Section 116(1) merely provides that the appel lant shall continue to hold the same post in the new State of Punjab and shall be deemed to have been duly appointed to such post by the Government of Punjab.
The fact that in the new State .of
Punjab the Financial Commissioner is the appropriate authority for appointing Assistants is absolute ly irrelevant.
Under section 115(7) of the States Reorganisation Act the conditions of service applicable to 957 a civil servant immediately before the appointed day cannot be varied to his disadvantage except with the previous approval of the Central Government.
One of the condition of service of the appellant on the appointed day was that since he was appointed by the State Government of Pepsu he could only be dismissed by the State Government of Pepsu if he had continued there.
[961 H, 962 A] 2.
The Memorandum of 11 5 1957 cannot be called in aid as previous approval because the Punjab Financial Commis sioner 's Office Rules 1957 were promulgated on 28 2 1957 before the Circular dated 11 5 1957 was issued.
No approval of the Central Government has been produced.
Therefore, authority subordinate to the Governor of Punjab was not competent to pass an order of dismissed of the appellant.
[962 D E] The Court set aside the judgment and decrees of the High Court and restored those of the trial Court.
[963 E] Takhatray Shivdatray Mankad vs State of Gujarat ; and Bholanath J. Thaker vs The State of Saurashtra AIR 1954 SC 680, followed.
N. Raghavendra Rao vs Deputy Commissioner, South Kamara, Mangalore ; and Mohammad Shujat Ali & Ors. etc.
vs Union of India & Ors. etc.
; , distinguished.
Rajvi Amar Singh vs The State of Rajasthan, , distinguished.
Mysore State and Road Transport Corporation etc.
vs Mirja Khasim Ali Beg & Anr.
C. As.
1601 1609 and 2402 2405 of 1968 dt. 1 12 1976 followed.
|
: Criminal Appeal No. 502 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 16 9 1975 of the Delhi High Court in Criminal Revision No. 139 of 1975).
A.K. Gupta, for the appellants.
G. Das, and R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellants who are Railway employ ees, were convicted by the learned Metropolitan Magistrate, Delhi under rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months ' rigorous imprison ment.
The order of conviction was upheld in appeal by the learned Additional Sessions Judge and in revision by the Delhi High Court with the difference that whereas the former upheld the sentence too, the latter has reduced it to the period already undergone.
In this appeal by special leave the Iegality of conviction is questioned by the appel lants.
The case of the prosecution is that the appellants are leaders of the Northern.
Railwaymen 's Union and that on May 5, 1974 they 993 held a meeting in Tughlakabad Railway Yard inciting railway workers to go on strike from May 8.
This is alleged to be in breach of the order passed by the Government of India under rule 118(1) of the Defence of India Rules, 1971.
That rules reads thus: "118.
Avoidance of strikes and lock outs. (1) If in the opinion of the Central Government or the State Government it is necessary or expedient so to.
do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military Opera tions, or for maintaining supplies and services essential to the life of the communi ty, nothwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to .any undertaking or class of undertakings, make provision (a) for prohibiting, subject to the provisions of the order, a strike or lock out in connection with any industrial dispute; (b) for requiring employers, workmen, or both, to observe for such period as may be, specified in the order such terms and conditions of employment as may be determined in accordance with the order: Provided that no order made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to.
the workmen than those which were applicable to them at any time within three months preceding the date of the order.
" By sub rule (2), if any person contravenes any order made under sub rule (1) he shall be punishable with imprison ment for a term which may extend to three 'years or with fine or with both.
The order issued under rule 118(1)(b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and serv ices essential to the life of the community to prevent strikes in the Railway Services 'and that therefore "the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of six months w.e.f.
the 26th November, 1973.
" In support of its case the prosecution examined three witnesses called S.D. Sharing, Dilbagh Rai and jasbir Singh.
Sharma 's evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him.
The witness admits that he had no personal knowledge that the appellants had held any meeting nor had 994 he heard their speeches.
The second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Station and was entrusted with the investigation of the case.
In the nature of things he too has no personal knowledge of what the appellants did or said.
Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad is in the circumstances the only witness whose evidence could, if at all, help the prosecution to establish the charge that the appellants had contravened the order issued by the Government of India under r. 118(1)(a) of the Defence of India Rules, 1971.
But even that evidence, in our opinion, is inadequate for proving the charge levelled against the appellants.
Jasbir Singh claims to have attend ed a meeting addressed by the appellants but he has not stated as to what exactly the appellants said in the meet ing.
He has given his own gist or summary of what the appellants meant to convey to the audience stating that they incited the workers to go on strike and threatened them with dire consequences if they did not respond to the call.
Such a broad, resume is not safe to rely upon for holding the charge proved.
In view of the total absence of evidence showing what the appellants in fact said in the meeting, the summary coined by Jasbir Singh of the happenings in the meeting cannot form the basis of conviction.
What is chargeable as contravening the prohibition imposed under the order issued by the Government of India under r. 118(1)(a) is in the circumstances of this case the words used by the speakers and not the gist of the speeches made by a member of the audience.
A summary of a speech may broadly and generally not be inaccurate and yet it may not faithfully reflect what the speaker actually said and in what context.
Therefore, we would prefer not to rely on the gist given by the witness without knowing the data on the basis of which the gist was given.
The charge must therefore fail.
One of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speech es a railway strike was imminent and that such a strike was in fact launched on May 8, 1974.
Section 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved.
Section 57 enu merates facts of which the Court "shall" take judicial notice and states that on all matters of public history, literature, science or art the 'Court may resort for its aid to appropriate books or documents of reference.
The list of facts mentioned in section 57 of which the Court can take judicial notice is not exhaustive.
and indeed the purpose of the section is to> provide that the .Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice.
Recognition of facts without formal proof is a. matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowl edge.
(see Taylor 11th edn.
pp 3 12; Wigmore sec 2571 foot note; Stephen 's Digest, notes to Art, 58; Whitley Stokes ' Anglo Indian Codes Vol.
II p. 887).
Shutting the judicial eye to the 995 existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual.
No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present.
The date of poll, the passing away of a man of eminence and events that have rocked the nation need no proof and are judicially no ticed.
Judicial notice, in such matters, takes the place of proof and is of equal force.
In fact, as a means of establishing notorious and widely known facts it is supe rior to formal means of proof.
Accordingly, the Courts below were justified in assuming, without formal evidence, that the Railway strike was imminent on May 5, 1974 and that a strike intended to paralyse the civic life of the Nation was undertaken by a section of workers on May 8, 1974.
But the matter does not rest there.
Rule 118(1)(a) empowers the Government to issue an order prohibiting a strike "in connection with any industrial dispute".
The Order issued by the Government on November 26, 1973 recites, as required by the Rule, that the Central Government prohib its a strike "in connection with any industrial dispute" in the Railway Services in India for a period of six months.
Rule 118 (2) prescribes punishment for a person who con travenes any order made under the Rule.
We have no doubt that the Government possesses the power to issue an appro priate order under Rule 118 (1) even if there is no existing industrial dispute because the power can be exercised prophylactically for preventing a strike in connection with an imminent industrial dispute.
But the prosecution must establish, in order that the conduct charged as penal may fall within the mischief of the Order, that the strike in regard to which the incitement was given was in connection with an industrial dispute.
Unless that is established, there can be no contravention of the order issued by the Government, because the contravention consists in doing what is prohibited by the order.
And what is prohibited by the order is a strike in connection with an industrial dispute.
Thus the prosecution has to establish not only that a strike was imminent or had actually taken place, of which judicial notice may be taken, but further that the strike was in connection with an industrial dispute, which is a matter of evidence.
Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohibiting inter alia a strike in connection with any industrial dispute.
Since the rule does riot empower the Government to issue an order prohibiting strikes generally, whether they bear any connection with an industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industrial dispute.
The prosecution did not lead any evidence to prove this impor tant ingredient of the offence and the generalisation made ' by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute.
It is urged by the learned counsel appearing for the Delhi Administration, who are respondents to the appeal, that what is contemplated by rule 118(1)(a) itself is a strike in connection with 996 an industrial dispute and therefore it is not necessary for the prosecution to establish that the strike was in connec tion with any industrial dispute.
There is no warrant for this submission and nothing contained in sub rule (3) of rule 118 which defines the expressions "industrial dispute" and "strike" lends support to the counsel 's submission.
It is well known that strikes are sometimes undertaken for purposes unconnected with an industrial dispute, as for example when the workers demand a closure of the establish ment on the demise Of a person of national importance.
In fact, strikes are not unoften launched for reasons which do not reasonably bear any connection with an industrial dispute.
An argument was advanced before us on behalf of the appellants that the conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971.
It i,s unnecessary to consider this question in view of our finding that the evidence led by the prosecution is insufficient to 'estab lish the charge levelled against the appellants.
We would however like to point out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished is rule 36(6)(j) read with rule 43(1)(a).
The former defines a "prejudicial act" to include instigation or incitement for cessation or slowing down of work by a body of persons employed in any place of employment in which 100 persons or moro are normally employed, in furtherance of any strike which is prohibited under rule 118 or is illegal under any law for the time being in force.
The latter provides that no person shall without lawful authority or excuse do any prejudicial act.
By rule 43 (5) a person who contravenes any of the provisions of rule 43 is punishable with impris onment which may extend to 5 years or with fine or with both.
In the result we allow the appeal, set aside the order of conviction and sentence and acquit the appellants.
S.R. Appeal allowed.
| IN-Abs | In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tughlakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen 's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment.
The order of conviction was upheld in appeal by the Sessions Court but in revision, the Delhi High Court while upholding the conviction re duced the sentence to the period already undergone.
In appeal by special leave to this Court, the appellants contended (1) There was no legal evidence to warrant the conviction; (2) The courts below were not justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike.
was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971.
Allowing the appeal by special leave, the court, HELD: (1) The courts below were justified in assuming without formal evidence that the railway strike was immi nent on May 5. 1974 and that a strike intended to paralyse the civic life of the nation was undertaken by a section of workers On May 8, 1974.
[995A B] (2) The purpose of section 57 of the Evidence Act is to provide that the court shall take judicial notice of certain facts rather than exhaust the category of facts of which the court may in appropriate cases take judicial notice.
Recog nition of facts without formal proof is an act of expedien cy.
Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual.
No court insists on a formal proof by evidence of notorious facts of history past or present and events that have rocked the nation need no roof and are judicially noticed.
judicial notice in such matters takes place of proof and is of equal force.
[994F H, 995 A] (3) The Government possesses the power to issue an appropriate order under rule 118(1) prohibiting the strike "in connection with any industrial dispute" even if there is no existing industrial dispute because the owner can be exercised prophylactically by preventing a strike in connec tion with an imminent strike.
[995C D] (4) In order to maintain a charge under rule 118(1) of the Defence of India Rules, 1971, the prosecution has to establish not only that a strike was imminent or had actual ly taken place of which indicial notice may be taken but further that the strike was in connection with the industri al dispute which is a matter of evidence.
[995E F] 992 (5) What is chargeable as contravening the prohibition must under the order issued by the Government of India under Rule 118(1)(a) is, in the circumstances of this case, the words used by the speakers and not the gist of the speeches made by a member of the audience.
A summary of speech may broadly and generally not be inaccurate and it may ' not faithfully reflect what the speaker actually said and in what context.
[994D E] (6) Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohib iting inter alia, a strike in connection with any industrial dispute.
Since the rule does not empower the Government to issue an order prohibiting strikes generally, whet.her it is in connection with the industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industri al dispute.
In the instant case, the prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute.
[995F G] (7) The contention of the prosecution that what is contem plated by rule 118 (1)(a) itself is a strike in connection with an industrial dispute and, therefore, it is not neces sary for the prosecution to establish that the strike was in connection with any industrial dispute is neither warranted nor supported by anything contained in sub rule (3) of rule 118 which defines expressions "industrial dispute" and "strike".
[995H, 996A B] [In view of the finding that the evi dence led by the prosecution is insufficient to establish the charge, in the instant case, the court thought it unnecessary to consider the question whether the conduct attributed to the appellants fall within the mischief of the order dated 26 11 1973, since inciting other workers to go on strike may be outside the definition of the words "strike" contained in Rule 118(3)(b) of the Defence of India Rules, 1971.
" The court, however, pointed out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished in Rule 36(6) read with Rule 43(1)(a).]
|
: Criminal Appeals Nos. 418 419 and 484 485/76.
(From the Judgment and Order dated 6 7 1976 of the Andhra Pradesh High Court in Writ Petition Nos.
1865, 1870 of 1976 respectively.) P. Parmeswara Rao, G. Narayana Rao and A. K. Ganguli, for the appellants in Crl.
Appeals Nos. 418 419/76 and respondents in Crl.
Appeals Nos. 484 485/76.
R.K. Jain, fox the appellant in Crl.
A. No. 484/76 and respondent in Crl.
A. No. 418/76.
section Lakshminarasu, for the appellant in Crl.
A. No. 485/76 and for respondent in Crl.
A. No. 419/76.
The Judgment of the Court was delivered by GUPTA, J.
These are a group of four appeals from a common Judgment of the Andhra Pradesh High Court partly allowing two writ petitions, writ petition No. 1865 of 1976 filed by A.V. Rao, and writ petition No. 1870 of 1976 made by N.V. Krishnaiah.
The High Court rejected the petition ers ' prayer for setting off under section 428 of the Code of Criminal Procedure, 1973 the periods during which they were in preventive detention against the term of imprisonment imposed on them on their conviction in a sessions trial, but accepted their contention that they were entitled to the benefit of the remission system under the for the period during which they were in jail as under trial prisoners before their conviction: Criminal Ap peals Nos. 418 and 419 of 1976 by State of Andhra Pradesh are directed against the part of the High Court 's Judgment granting the writ petitioners the benefit of the remission system under the treating for this purpose the period of undertrial detention on the 'same footing as a term of imprisonment on conviction.
Appeal No. 418 arises out of writ petition No. 1865 of 1976 filed by A.V. Rao and Appeal No. 419 is from writ petition No. 1870 of 1976 made by N.V. Krishnaiah.
The writ petitioners have also filed appeals against the part of the.
Judgment disallowing their prayer for set off under section 428 of the Code of Criminal Procedure.
Criminal Appeals Nos.
484 and 485 of 1976 are by A.V. Rao and N.V. Krishnaiah respectively.
All the four appeals are on certificate of fitness granted by the High Court.
The relevant facts are as follows.
A.V. Rao, appel lant in appeal 484 of 1976 and respondent in appeal 418 of 1976, was in detention under the Preventive Detention Act when on December 18, 1969 a first information report was filed naming him among others as an accused in a case involving offences under section 121A and 120B read with section 395, and section 120B read with section 447 of the Indian Penal Code, 'which gave rise to sessions cases Nos. 106 of 1970 and 6 of 1971 on the of the Additional Sessions Judge, Hyderabad.
The detention order under 9 the preventive detention law was revoked by the State Gov ernment on April 11, 1970 and Rao was released on the next day, April 12.
He was then produced before the magistrate in connection with the sessions cases on April 13, 1970; there is some doubt about this date because the record at some places mentions the date as April 18, but the discrepancy is not of any significance on the questions arising for decision in these appeals.
On April 10, 1972 Rao. was convicted along with others and sentenced to various terms of imprisonment for the offences charged against him; the maximum sentence was rigorous imprisonment for four years.
The sentences were directed to run con currently.
His appeal against the order of conviction was.
dismissed by the High Court on November 28, 1975.
He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, 1970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account the entire period during which he was in detention for the purpose of remission of his sentence under the .
The petitioner further claimed that had he been free at the time when the F.I.R. was lodged on Decem ber 18, 1969, he would have surrendered immediately and would have been produced before the court for remand on the next day as some of the co accused in the case had been it was submitted that if the "concerned authority" who could but did not "take immediate and necessary steps to produce the petitioner" before the magistrate, the petition er should not be made to suffer.
The facts of N.V. Krishnaiah"s case are similar.
Krish naiah, appellant in appeal No. 485 and respondent in appeal No. 419, was also an accused in the sessions cases 106 of 1970 and 6 of 1971 with A.V. Rao and others.
lie however was not in detention when the F.I.R. was lodged.
He was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972.
He was also convicted by the Addi tional Sessions Judge on April 10, 1972 and the maximum sentence in his case too was rigorous imprisonment for four years.
He also preferred an appeal to the High Court against the order of conviction.
The High Court granted him bail and he was released on bail on April 29, 1972.
He was arrested under the on June 26, 1975.
The High Court dismissed the appeal on November 28, 1975.
A warrant of arrest issued by the Additional 'Sessions Judge on December 1, 1975 was served on him on December 30, 1975, on which date the detention order under the was also revoked.
On these Krishnaiah in his writ petition sought an order on the State of Andhra Pradesh to treat the "period from June 26 1975 to November 28, 1975 as remand period" and to set off under section 428 of the Code of Criminal Proce dure this period during which he was under preventive deten tion, against the term of imprisonment imposed on him on conviction in the sessions cases.
It was also contended that the warrant issued by the Additional Sessions judge on December 1, 1975 should have been served on him immediately, 10 that it was no fault of his that "the concerned authority" chose to serve the warrant on December 30, 1975, and that during this period of one month he should be deemed to have been serving the sentence imposed on him.
, A further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence under the , The question for consideration in appeals 418 and 419 of 1976, preferred by the State of Andhra Pradesh is, whether the period of detention undergone by the two writ petition ers in connection with the sessions cases before their conviction could be treated as a part of the period of imprisonment on conviction so as to entitle them to remis sion of their sentences under the .
The , as its preamble shows.
, is an Act to "amend the law relating to prisons" and to provide rules for the regula tion of such prisons Section 3(5) of the Act defines "remission system" as the "rules for the time being in force regulating the award of marks to, and the consequent short ening of sentences of, prisoners in jail".
Section 59 of the provides that the State Government may make rules consistent with the Act in respect of the various matters specified in clauses (1) to (28) of the section; under clause (5) of section 59 the State Government is authorised to make rules "for the award of marks and the shortening of sentences".
In their writ petitions both the petitioners speak of remission under the "prison rules" without specifying any rule under which relief is sought.
The High Court viewed the question in this way: Sec.
428 Crl.
P.C. clearly ordains that the remand detention shall be set off against the term of imprisonment imposed on the accused person on conviction.
The section further clarifies that the liability of such person to undergo, imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
In other words, the statute equates the under trial detention or remand detention with imprison ment on conviction.
The provision, in so many words, treats the remand ' detention as part of the period of imprisonment after conviction.
If remissions are given for imprisonment after conviction, there is no plausible or understandable reason.
, why it should be denied to the remand period when the statute equates both of them." The High Court accordingly held that all the remissions that are available or permissible to the two petitioners in regard to imprison ment on conviction are available to them oven in respect of the remand period and directed the authorities "to work out these remis sion and give the benefit to the petitioners".
We do not consider the view taken by the High Court on this point as correct.
Section 428 of the Code of Criminal Procedure.
1973 is in these terms: Period of detention undergone by the accused to be set off against the sentence of imprisonment. "428.
Where an accused person has, on conviction, been sentenced to imprisonment for a term, the period of deten 11 tion, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, Shall be set off against the term of imprison ment imposed on him on such conviction, and the liability of such person to undergo im prisonment on such conviction shall be re stricted to the remainder, if any, of the term of imprisonment imposed on him." Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction.
The section only provides for a "set off", it does not equate an "undertrial detention or remand detention with imprisonment on conviction".
The provision as to set off expresses a legislative policy, this does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes.
The basis of the High Court 's decision does not, therefore, seem to be right.
Apart from that, the does not confer any right upon the prisoner to claim remission.
It was pointed out in G.V. Godse vs State of Maharashtra(1) that" . the does not confer on any authority a power to commute or remit sentences, it provides only for the regula tion of prisons and for the treatment of prisoners confined therein.
Section 59 of the confers a power on the State Government to make rules, inter alia, for rewards for good conduct.
Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act.
" It was explained that the rules under the do not substitute a lesser sentence for a sentence awarded by the court.
The rules enable a prisoner to earn remis sions but, as held in G.V. Godse 's case, the question of remission is exclusively within the province of the appro priate Government.
If the Government decides to remit the punishment to which a person has been sentenced, the remis sion may be worked out according .to the rules framed under the .
This being the position, appeals 418 and 419 of 1976 must succeed.
The remaining two appeals, 4.84 and 485 of 1976, preferred respectively by Rao and Krishnaiah, may now be taken up for consideration.
The claim in both these appeals is that the period of detention undergone by each appellant under the preventive detention law should be set off under section 428 of the Code Criminal Procedure against the term of imprison ment imposed on them on their conviction in the aforesaid sessions cases.
The argument is that the 'expression "period of detention" in section 428 includes detention under the Preventive Detention Act or the .
It is true.
that the section speaks of the "period of detention" undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted.
The section makes it clear that the period of detention which it allows to be set off against the term of imprison ment (1) ; , 446.
12 imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the "same ease" in which he has been convicted.
We therefore agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them.
There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each ease should be held to have suffered imprisonment on conviction.
In A.V. Rao 's case (W.P. 1865/76), he was already in detention under the 2Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the sessions eases.
Some of the co accused in these cases were arrested and produced before the magistrate for remand on December 19, 1969, but Rao was produced before the magis trate sometime in April, 1970 after he was released from preventive detention.
It was argued that he also could have been produced before the magistrate for remand on December 19, 1970.
On behalf of the respondent, State of Andhra Pradesh, it was contended that as ' Rao was already in deten tion under the Preventive Detention Act, it was not possible to produce him before the magistrate for remand until the period of preventive detention was over, we do not find any justification in law for the position taken up by the State.
Rao being already in custody, the authorities could have easily produced him before the magistrate when the First Information Report was lodged.
Nothing has been pointed out to us either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course.
That being so we think that the claim that the entire period from December 19, .1969, when many of the co accused were produced before the magistrate to April 18, 1970 should be treated as part of the period during which Rao was under detention as an under trial prisoner, must be accepted as valid.
A.V. Rao 's Appeal No. 484 of 1976 is allowed to this extent.
In the case of N.V. Krishnaiah, the Additional Sessions Judge, Hyderabad, issued a warrant on December 1, 1975 after his appeal against conviction was dismissed by the High Court on November 28, 1975.
The warrant, however, was.
served on him only on December 30, 1975 on which date the order under maintenance of Internal Security Act was revoked.
It is claimed ' that the warrant could have been served immediately on that dismissal Of the appeal on November 28, 1975 and the accused was not responsible if the authority concerned chose to serve the warrant on him on December 30, 1975.
In this case also, the argument on behalf of the State of Andhra Pradesh is that it was not possible to forward Krishnaiah to jail consequent on his conviction in the session cases until the period of his detention under the was over.
We do not see why that should be so.
Section 418 requires the court passing the sentence .to forthwith for ward a warrant to the jail or other place in which he (accused) is, or is to be, confined, and, unless the ,ac cused is already confined in such jail or other 13 place, shall forward him to such jail or other place, with the warrant".
Section 418 thus does not exclude a case where the warrant concerns an accused who is already in detention On behalf of the State it was sought to be argued that if the warrant was served on Krishnaiah immediately after his conviction was upheld by the High Court in appeal, the position would have been anomalous, because then he would have been in detention both under the preventive detention law and as a convicted accused in a criminal case.
We have not been referred to any provision either in the Code of Criminal Procedure or in the Maintenance of Internal Securi ty Act which requires the service of the warrant to be delayed until after the period of preventive detention is over.
As regards the alleged anomaly of a man having to suffer two kinds of detention at the same time, one preven tive and the other punitive, we do not find this to be a valid objection.
The position is not different from the case where a man is sentenced on different counts to a term of rigorous imprisonment and another term of simple impris onment, and the sentences are directed to run concurrently.
Counsel for the State referred us to the decision in Harad han Saha and another vs The State of West Bengal & others,(1) in support of his contention.
In our opinion this case does not help him at all.
What was held in this case was, inter alia that the nature of preventive detention is entirely different from punitive detention, and there is no bar to a man being detained under the preventive deten tion law when a criminal proceeding for the offences on which the preventive detention is based is pending.
If that be so, there can be no bar to the preventive and punitive detentions continuing simultaneously.
We therefore allow appeal No. 485 of 1976 to the extent that Krishnaiah should be taken to have serving the sentence imposed on him from December 1, 1975.
In the result the criminal appeals Nos. 418 and 419 of 1976 by the State of Andhra Pradesh are allowed, and the appeals Nos. 484 and 485 of 1976 preferred respectively by A.V. Rao and N.V. Krishnaiah are allowed to the extent indicated above.
M.R. Appeals al lowed.
| IN-Abs | The cross appeals arose from two writ petitions filed by A.V. Rao and N. V. Krishnaiah in the High Court.
A.V. Rao 's case was that while he was already in preventive detention.
on December 18.
a First Information Report was lodged against him in connection with some Sessions cases.
Some of the co accused in ' these cases were produced before the Magistrate on December 19, 1969 for remand, but Rao was produced before him only in mid April, 1970 after his release from preventive detention.
The accused in the Sessions cases were thereafter convicted and sentenced, and Rao.
filed a writ petition asking for an order on the State Government to set off u/s , the time between December 19, 1969 and April 13, 1970, against his term of imprisonment, treating the said period as the period of detention undergone by him as an undertrial prisoner, and also to take the same into account, for the purpose of remission of his sentence under the Prisons Act.
Rao con tended that he could have been produced before the Magistrate for remand on December 19, 1969.
The State Government contended that Rao could not be produced before the Magistrate for remand until the period of preventive detention was over.
In the case of Krishnaiah, he was in detention under the MISA, when his appeal against conviction in a criminal case was dismissed by the High Court, and a warrant was issued against him on December 1, 1975, but was served on him only on December 30, 1975, when the order against him under the MISA was revoked.
The High Court rejected the petitioners ' contention regarding set off under section 428 Cr.
P.C. but accepted their contention regarding the benefit of remission.
Allowing the appeals by the State, and partly allowing the appeals by the original writ petitioners, the Court, HELD: (1) Section 428 of the Cr. P.C., 1973 only pro vides that the period of detention of an accused as under trial prisoner shall be set off against the term of impris onment imposed on him on conviction.
It does not equate an "undertrial detention or remand detention with imprisonment on conviction" or do away with the difference in the two kinds of detention and put them on the .same footing for all purposes.
[11B C] G.V. Godse vs State of Maharashtra, ; ; 446, referred to.
(2) section 428 expressly says that the "period of detention" mentioned, refers to the detention during the investigation, enquiry or trial in connection with the "same case" in which the accused person has been convicted.
The period during which the writ petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them.
[11G, 12 A B] (3) Section 418 does not exclude a case where the war rant concerns an accused who is already in detention.
We have not been referred to any provision either in the Cr.
P.C. or in the MISA which requires the service of the war rant to be delayed until after the period of preventive detention is over.
There is no bar to the preventive and punitive detention continuing simultaneously.
[13A B, C] 2 240SCI/77 8 Haradhan Saha & Anr.
vs State of West Bengal & Ors.
; , referred to.
|
ivil Appeal No. 2041 of 1968.
(From the Judgment and Decree dated 2.2.1966 of the Allahabad High Court (Lucknow Bench) Lucknow in First Execu tion Appeal No 5/62).
S.N. Prasad, for the appellant.
G.C. Mathur and O.P. Rana for the respondent.
The Judgment of the Court was delivered by BEG, C.J.
This appeal by certificate raises the simple question whether certain trees, said to be part of a grove, are included in 34 grove land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) vests in the State of Uttar Pradesh free from all encumbrances.
This very question was raised by the respondent decree holder in the execution proceed ings in this very case, between the same parties which came to this Court on an earlier occasion.
We have perused the judgment of this Court reported in ; , in the case.
We find that the position taken by the respond ent decree holder then also was that, after the coming into force of the Act, what could still be sold in execution of the decree was the right in trees of groves as these contin ued to vest in the intermediary.
This Court rejected ' that submission and held that after vesting of all the rights mentioned in.
section 6 of the Act in the State of Uttar Pradesh, new bhumidhari rights came into existence under section 18 of the Act.
It also held ' that the only way in which a mortgagee could enforce his right against the mortgage or after the Act came into force is provided in section 6(h) of the Act, read with section 73 of the , so that nothing more than the compensation awarded to the, intermediary could be proceeded against by the mortgagee.
Proceed against by the mortgagee.
We are surprised that, even after that decision which, according to the aPPellant judgment debtor, constitutes a complete answer to any further execution proceedings in respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between, trees and a grove and grove land, should have been upheld by a Division Bench of the Allahabad 'High Court (Lucknow Bench).We find that it is impossible for us to accept this opinion in view of the definition of the intermediary 's grove under section 3(13) of the Act which says "intermediary grove means grove land held or occupied by an intermediary as such".
This means that "grove land" and an "intermediary 's groves are equated and groves are on ly collections of trees in plots of land so as to preclude cultivation in them.
The uncut trees are deemed to be parts of the "land".
Section 18(1)(a) of the Act provides that an "intermediary 's grove" is bhumidhari property.
Rights in it are part of bhumidhari rights.
After these clear words of the enactment.
we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove land.
The proposition is well settled, under the general law, that trees, before they are cut, form parts of 'land '.
And, an inseparable part is always included in the whole.
In view of this very clear legal position, we allow this appeal and set aside the judgments and decrees of the High Court and the Execution Court with costs.
S.R. Appeal al lowed.
| IN-Abs | In Rana Sheo Ambar Singh vs Allahabad Bank Ltd., Allaha bad (1962) 2 SCR p.441, this Court held that the respond ent could not enforce his rights under the mortgage by the sale of the new Bhumidari rights created in favour of the mortgagor by section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and that the respondent could only enforce his rights against the appellant in the manner provided under section 6(h) of the Act read with section 73 of the Transfer of Property Act, and follow the compensation awarded to the intermediary.
Despite this decision having been brought to the notice in the execution proceedings initiated by the respondent attachment of the trees in groves belonging to the appellant was ordered by the executing Court taking the view that there is a distinction between the trees and a grove and grove land.
The Division Bench of the Allahabad High Court (Lucknow Bench) upheld the views of the Executing Court and dismissed the appeal Allowing the appeal by certificate, the Court, HELD: (1) The view that there is a distinction between trees and a grove and grove land and, therefore execution against trees in groves could be proceeded against cannot be accepted in the light of the definition of the intermediary grove under section 3(13) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, viz., "intermediary 's grove" means groveland held or occupied by intermediary as such.
[34 D E, H] (2) Groves are only collection of trees in plots of land so as to preclude cultivation in them.
The uncut trees are deemed to be parts of the land.
The proposition is well settled under the general law, that trees, before they are cut.
form parts of 'land '.
And are inseparable part is always included in the whole.
[34E F] (3) Section 18(1)(a) of the Act provide that an "inter mediary grove" bhumidary property.
Rights in it are parts of bhumidari rights.
|
iminal Appeal No. 75 of 1954.
Appeal by Special Leave from the Judgment and dated the 24th July 1953 of the Bombay High Order a Court in Criminal Revision Application No. 669 of 1953 arising out of the Judgment and Order dated the 29th June 1953 of the Court of Presidency Magistrate, 9th Court at Bandra, Bombay in Case No. 11872/73/P of 1952.
, P. K. Chatterjee, for the appellants.
N. section Bindra, (P. G. Gokhale, with him) for the respondent.
December 13.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The first appellant was, at the relevant date, in possession of room No. 10 in House No. 334, Bazar Road, Bandra, Bombay.
, On information that this room was being used as a gaming house, Mr. Bhatt Sub Inspector of Police, raided it on 19 9 1952, and found the two appellants and four others in possession of gaming instruments All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for the purposes of 1051 gaming, and the first appellant was, in addition, charged under section 4(a) of the Act for keeping a gaming house.
The Presidency Magistrate who tried the case, found the first appellant guilty under section 4(a) of the Act, and sentenced him to three months ' rigorous imprisonment.
He also found him guilty under section 5 of the Act, but awarded no separate sentence under that section.
The second appellant was found guilty under section 5, and sentenced to three months ' rigorous imprisonment.
The appellants took the matter in revision to the High Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under section 5, and awarded a sentence of three months ' rigorous imprisonment under that section.
As regards the second appellant, both the conviction and sen tence were confirmed.
Against this order, the present appeal by special leave has been preferred.
Both the courts below have concurrently found that the appellants were present in a gaming house for the purpose of gaming, and have thereby committed an offence punishable under section 5 of the Act, and that finding is not under challenge before us.
The only contention that has been raised before us and it arises only as regards the first appellant is that as the High Court had set aside his conviction under section 4 (a) 'of the Act, it should have set aside the sentence passed on him under that section, and that it had no power under the Code of Criminal Procedure, to impose a sentence under section 5, when none such had been passed by the Magistrate.
This contention is based on, the terms of section 423.
Under that section, when there is an appeal against a conviction, the court has the power under subclause (1)(b) either (1) to reverse the finding and sentence, and acquit or discharge the accused, or order his retrial, or (2) to alter the finding but maintain the sentence, or (3) to reduce the sentence with or without altering the finding, or (4) to alter the sentence with or without either reducing the sentence or altering the finding, but, subject to section 106(3), not so as to enhance the same.
It is urged that the 1052 present case does not fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been imposed under that section by the Magistrate, and that accordingly the order of the High Court could not be justified under any of the provisions of the Code.
It is further contended that the award of sentence under section 5 amounted in the above circumstances to an enhancement, and was, in consequence, illegal, as no notice had been issued therefor '.
as required by law.
In support of this contention, the decision in Ibrahim vs Emperor(1) is relied on.
In that case, as in the present, the accused was convicted both under section 4(a) and section 5 of the Act, but a sentence was passed under section 4(a) and none under section 5.
On appeal, the learned Judges set aside the conviction under section 4(a), and on the question of sentence, observed that the Magistrate was wrong in not having imposed a separate sentence under section 5, and continued: "He ought to have imposed a sentence under each section; but as he has not imposed a sentence under section 5, we cannot impose one ourselves, for that would be enhancing the sentence".
These observations undoubtedly support the first appellant.
A different view, however, was taken in two other decisions, which may now be noticed.
In Superintendent and Remembrancer of Legal Affairs vs Hossein Ali(2), the accused had been convicted by the Magistrate both under section 363 and section 498 of the Indian Penal Code, and sentenced to imprisonment under section 363, no separate sentence having been awarded under section 498.
On appeal, the Sessions Judge set aside the conviction under section 363, but held the accused guilty under section 498.
On a reference as to whether the Sessions Judge could pass any sentence under section 498, it was held by the High Court that he could, under section 423 (1) (b) of (1) A.I.R. 1940 Bom.
(2) A.I.R. 1938 Cal. 439.
1053 the Code of Criminal Procedure, as there was an alteration of the conviction under sections 363 and 498 to one under section 498.
This view proceeds, in our opinion, on a misconception of the true meaning of the words "alter the finding" in section 423(1)(b) of the Code of Criminal Procedure.
When a statute enacts provisions creating specific offences, in law these offences constitute distinct matters with distinct incidents.
Under section 233 of the Code of Criminal Procedure, they have to be separately charged, and under section 367, the judgment has to specify the offence of which and the law under which the accused is convicted.
When there is a conviction for more offences than one, there are distinct findings in respect of each of them, and when section 423 (1) (b) speaks of a finding being reversed or altered by the court of appeal, it has reference to the finding in respect of each of the offences.
When, therefore, the High Court set aside the conviction under section 4 (a) and affirmed that under section 5, there are two distinct findings, one of reversal and another of affirmance, and there is no question of alteration.
The decision in Superintendent and Remembrancer Of Legal Affairs vs Hossein Ali(1) was followed in Pradip Chaudhry vs Emperor(2).
There, the Sessions Judge convicted the accused under sections 324 and 148 of the Indian Penal Code and sentenced them to imprisonment under section 324, but no sentence was imposed on them under section 148.
On appeal, the High Court set aside the conviction under section 324, and confirmed that under section 148.
Dealing with the contention of the accused that the Court had no power under section 423 (1) (b) of the Code of Criminal Procedure to award a sentence under section 148, the learned Judges observed that they had "ample power to transpose the sentence, so long as the transposition does not amount to enhancement".
We are unable to support the reasoning in this decision either.
There is nothing about transposition of sentence under section 423(1)(b).
It only provides for altering the finding and maintaining the sentence, (1) A.I.R. 1938 cal.
(2) A.I.R. 1946 Patna, 235.
1054 and that can apply only to cases where the finding of guilt under one section is altered to a finding of guilt under another.
The section makes a clear distinction between a reversal of a finding and its alteration, and provides that when there is a reversal, the order to be passed is, one of acquittal, discharge or retrial, whereas when there is an alteration, the order to be passed is one of maintaining, reducing or altering the sentence.
But here, the order passed by the High Court is not one of alteration of any finding.
It is, as already stated, a reversal of the finding under section 4(a) and a confirmation of the conviction under section 5.
We are therefore of opinion that on the language of the section, the imposition of a sentence under section 5 by the High Court cannot be justified.
The question still remains whether apart from section 423(1) (b), the High Court has the power to impose the sentence which it has.
When a person is tried for an offence and convicted, it is the duty of the court to impose on him such sentence, as is prescribed therefor.
The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
When the trial Magistrate convicted the first appellant under section 5, it was plainly his duty to have imposed a sentence.
Having imposed a sentence under section 4(a), he obviously considered that there was no need to impose a like sentence under section 5 and to direct that both the sentences should run concurrently.
But, in strictness, such an order was the proper one to be passed.
The appellants then took the matter in revision to the High Court, and contended that their conviction under section 5 was bad.
The High Court went into the question on the merits, and found them guilty under that section.
It was the duty of the High Court to impose a sentence under section 5, and that is precisely what it has done.
The power to pass a sentence under those circumstances is derived from the law which enacts that on conviction a sentence shall be imposed on the accused, and that is a power which can and ought to be exercised by all the courts which, having jurisdiction to decide whether the 1055 accused is guilty or not, find that he is.
We are of opinion that this power is preserved to the appellate court expressly by section 423(1)(d), which enacts that it can "make any amendment or any consequential or incidental order that may be just or proper".
When a conviction is affirmed in appeal but no sentence had been awarded by the trial Magistrate.
, the award of a sentence is consequential on and incidental to the affirmance of the conviction, and it is a just and proper order to be passed under the law.
We are unable to agree with the view expressed in Ibrahim vs Emperor(1) that such an order could be an enhancement of the sentence.
Before a sentence can be said to be enhanced, there must be one which could be enhanced, and when no sentence was imposed on a conviction by the trial Magistrate and one is for the first time awarded in appeal, it cannot correctly be said to be an enhancement.
We are accordingly of opinion that it was within the competence of the High Court to have passed the sentence which it had.
There is another ground on which the order of the lower court can be sustained.
Against the conviction of the appellants by the Presidency Magistrate, no appeal lay, and accordingly the appellants preferred a revision to the High Court.
Under section 439(1) of the Code of Criminal Procedure, the High Court in hearing a revision can exercise the powers of a court of appeal under section 423, and may enhance the sentence.
Under section 439(2), an order of enhancement could not be passed, unless the accused bad an opportunity of being heard in his defence, and under section 439(6), the accused is also entitled, when proceedings are taken under section 439(2), to show cause against his conviction.
The substance of the matter is that when proceedings are taken against the accused for enhancement of sentence under section 439(2), he has a right to be beard both on the question of the propriety of the conviction and of the sentence to be imposed on him if he is convicted.
In the present case, the first appellant had an opportunity of pre (1) A.I.R. 1940 Bom.
1056 senting his case in respect of both these matters, and, in fact, he availed himself of the same.
He himself raised in his revision the question of his guilt under section 5, and the High Court on a consideration of all the evidence affirmed his conviction.
On the question of sentence, section 5 enacts that when a person is found guilty under that section, the punishment shall not be less than three months ' imprisonment and Rs. 200 fine , if be had been convicted for the same offence previously.
The first appellant had a previous conviction, and the sentence of imprisonment is the minimum which could be passed against him under section 5.
With reference to this aspect of the matter, the High Court observes: "In view of the fact that the first accused admits one previous conviction under section 5 of the Act, the sentence of three months ' rigorous imprisonment passed upon him by the learned Presidency Magistrate is justified".
Now, the question is whether, in the circumstances, the order of the High Court could be held to be bad for want of notice under section 439(2).
The law does not prescribe that any particular formalities should be complied with, before action is taken under that section.
It only provides that the accused should have an opportunity of showing cause against the conviction and enhancement, and, as the first appellant was heard on both these questions, the require ments of the section were satisfied.
The order of the High Court could accordingly be maintained under section 439, even if it were to be regarded as an enhancement of the sentence.
In any event, no prejudice has resulted to the first appellant by reason of the absence of a formal notice under section 439(2).
In the result, the appeal is dismissed.
| IN-Abs | The first appellant was prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887) for being present in a gaming house for the purposes of gaming and was, in addition, charged under section 4(a) of the Act for keeping a gaming house.
The Presidency Magistrate, who tried the case, found him guilty under section 4(a) and sentenced him to three months ' rigorous imprisonment.
He also found him guilty under section 5 but awarded no separate sentence under that section.
In revision, the High Court set aside the conviction under section 4(a), but confirmed that under section 5 and awarded a sentence of three months ' rigorous imprisonment under that section.
It was contended for the first appellant that the High Court had no power under section 423(1)(b) of the Code of Criminal Procedure to impose any sentence under section 5 of the Act when no such sentence had been awarded by the Magistrate and that, in any event, the award of such a sentence amounted to an enhancement and was, in consequence, illegal, as no notice had been issued there for, as required by law.
Held, that though section 423(1)(b) of the Code of Criminal Procedure was not applicable to the case, the High Court had power to pass the sentence under section 423(1)(d).
The law does not envisage a person being convicted for an 1050 offence without a sentence being imposed therefor, and the award of a sentence by the High Court was only consequential on and incidental to the affirmance of the conviction, and it was a just and proper order to be passed under the law, within the meaning of section 423(1)(d) of the Code of Criminal Procedure.
Such a sentence cannot amount to an enhancement as it was awarded only for the first time in appeal.
Even if it were to be regarded as an enhancement, the order of the High Court could not be held to be bad for want of notice under section 439(2), as the first appellant had an opportunity of showing cause against the conviction and enhancement, and, in any event, no prejudice had resulted to him by reason of the absence of a formal notice under the section.
Ibrahim vs Emperor (A.I.R. , Superintendent and Remembrancer of Legal Affairs vs Hossein Ali (A.I.R. and Pradip Chaudhry vs Emperor (A.I.R. 1946 Pat. 235), disapproved.
|
Civil Appeals Nos. 2208, 2209 of 1968.
From the Judgment and Decree dated the 10th/llth August.
1965 of the Bombay High Court (Nagpur Bench) in First Appeal Nos. 120 and 123 of 1965.
S.T. Desai, D.N. Mishra and B.N. Mohta, for the appellant M.N. Phadke, .4.
G. Ratnaparkhi, for respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The two appeals, measured by their legal merits or factual dimensions, may.
not justify their longevity from June 23, 1949 to February 1977 the former being the date of birth of the suit and the later the termi nation, at long last, of the cases in this Court.
The subject matter is a relatively small money claim which, perhaps, is less than the amount each side has spent on the forensic scrimmage.
Before, we narrate the facts and discuss the law, we permit ourselves a pensive reflection about our processual justice.
If we (law makers and law yers) tarry any longer to forge a speedy and radical juris prudence of remedies in action, the long quest for the fruits of rights may tempt suitors into the traditional quagmire of processual legalistics where from extrication may prove an expensive futility.
The story which hopefully comes to.
a close with this judgment, among many others like this, bears testimony to the crying need for serious reform not oblique by pass of the court system by an aware legislature, lest the considerable social cost of pursuing judicial remedies stultify and disenchant seekers of legal justice.
The facts, when unfolded, will validate this obiter intended to alert the law maker.
The High Court, thanks to the then rule of valuation under Art, 133 (1)(a) of the Constitution, granted a certif icate of fitness.
The appellant plaintiff, as kartha of a joint Hindu family, Was running a business in the name and style of Jasraj Inder Singh with two shops, 975 one in Khamgaon and the other in Bombay.
(The trade name for the Bombay Shop was slightly different.) The respondent defendant had been having dealings with the plaintiff at both places between October 1947 and May 1948.
The accounts between the parties fluctuated from time to time, since deposits, advances, withdrawals and entrustment of silver, castor, cotton and the like for sale as agents and crediting the prices in the accounts were a running feature of the mutual dealings.
The plaintiff isolated the transactions which took place in Khamgaon and brought a suit claiming a sum of Rs. 11,401 7 9 which represented the net balance due on the Khamgaon khata to him from the defendant on May 12, 1948.
Interest was also demanded on an alleged agreed rate.
It is noteworthy that the plaintiff 's initial folly as Shri Desai, for the appellant frankly admitted, was in excluding from the suit claim the amounts due one way or the other from the Bombay branch of the business.
The contracting parties were identical, the dealings were simi lar and on any fair basis either could get from the other the net amount legally due from both the shops together.
But legal sense and commonsense were abandoned by the plaintiff out of the oblique motive of claiming a larger sum than would be due in case a joint balance was struck.
This dubious device, as will be seen presently, has backlashed on the plaintiff whose disaster in the High Court has been largely courted by this motivated cleverness.
To revert to the litigative narrative, the defendant urged in defence that the demand was untenable since he bad deposited six bars of silver with the Khamgaon shop of the plaintiff to be sold through his Bombay branch and if the sale proceeds thereof were taken into account in the Khamgaon khata a larger sum would be due to him.
(We bypass, for the time being, the fight over this claim being a set off under order VIII, rule 6 C.P.C., or a counter claim in the nature of a substantive relief for the balance).
This counter claim was met by the plaintiff in an additional pleading wherein he urged that the sale of silver bars was a matter for the Bombay shop and should not be mixed up with the Khamgaon dealings which were the basis of the action.
What falls for regrettable comment is that even at this stage the plaintiff did not invoke the obvious argument that the Khamgaon and the Bombay shops both belonged to the same owner and since the transactions were between the same parties (in differ ent places though) when a suit for (or on) final accounts were filed, all the items in the twin places should figure in the resultant decree.
If this straight forward plea were taken the facts tend to show the plaintiff would still have got a decree, may be for a lesser sum.
Oftentimes, obdurate legal obscruantism of litigants, leads to protraction of proceedings, projection of intricate procedural punctilios and the phyrric processual victory forensically won being a potent source of perverting truth, draining resources and undoing justice.
This sombre scenario of the case we are deciding proves how on account of the correct curial ap proach being blinded by the cantankerousness of the plain tiff, conveniently concurred in by the other side, revision and appeal, remand and appeal, and attendant decades of delay and disproportionate litigative spending by both and two friendly businessmen, thanks to this feud, turning into foes, followed at once a disaster to both and detriment to the business community.
And some pre trial conciliation activism by the court at an 976 early stage might well have sorted out the dispute, bettered their relations and pre empted this cock fight.
Doing justice is a noble behest which blesses all; deciding the lis within a judicative pyramid, provocative of appeals and revisions, bleeds both and unwittingly incites the.
bitter persistence in the struggle to win (and lose 1).
We are courts of justice guided by law and the signature tune of the indicature is Fiat Justitia.
We gently suggested, in this spirit, whether the parties would be disposed to com pose their quarrel.
Counsel as often happens, constructive ly helped, but the purchase of peace at this late stage was difficult and we gave up.
Of course, adjudication on the .law and the facts cannot and shall not be influenced by this extra curial excursion.
We pick up the story of the suit where we left it.
In the dog fight that followed, a question of court fee was raised and decided.
That was taken up to the High Court and returned.
A preliminary decree for accounts of the Bombay khata was passed and that too leapt to the High Court re sulting in a remand, fresh issues and so on.
Then a decree was passed and both sides challenged it in appeal and crossobjections and the last lap of the tiring race is this court where the vanquished plaintiff is the appellant.
We proceed to decode the justice and the law of the cause.
We may state that the plaintiff 's obstinate attitude in treating the Bombay shop and Khamgaon shop as two different persons each being entitled to sue the defendant without reference to the amounts due to the latter from the former in inter connected business dealings is a legal fallacy and cute perversity.
However we may repeat that the defendant also proceeded on that 'shop autonomy ' theory but only urged that the silver bars were wrongfully omitted from the Khamgaon khata.
Shops are not persons although suits may be filed in trade names.
The trial court took a commonsense view in commingling the business account of the same par ties.
This was good law.
A plurality of shops owned by the same person does not proliferate into many shop persons.
At an intermediate stage of the many involved interlocutory skirmishes, the plaintiff did allege: "The alleged silver bars were sold by the defendant Suwalal through the said Bombay shop and naturally the sale proceeds of that quantity of silver are credited in the defend ant 's Khata in the Bombay shop.
The plain tiff, therefore in reply to the defendant 's claim of Rs. 17000/ has to file the extracts of accounts of the Bombay shop to put the full picture of transactions before the court.
As the Bombay shop shows the balance of Rs. 4535 12 0 as due to the defendants, the said fact has been so mentioned by the plaintiff in his statement.
" In passing, we may mention that the counter claim led to a demand for court fee and the High Court affirmed this order but reduced the sum on which such fee was payable.
Later, issues were framed by the trial Court which reflected the integrated nature of the dealings between the two par ties in the shops at Khamgaon and Bombay.
The 977 learned District Judge, not obsessed by the wrong headed pleadings, took the view that the shops, though located at different places, were owned by the same family and the claims were so inter connected that, in equity and law, set off was permissible and the net sum due to the plaintiff less than what he had sued for should be de creed.
We may mention the relevant issues framed at the first round even here since we may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant.
Issues 5 and 7 may be reproduced here: "5.
Whether the Bombay & Khamgaon shops owned by plaintiff 's partners are so connect ed with each other that a composite account of the entries in the two shops can be made by the Defendants ? * * * * 7.
Whether on making an account of the two shops of the Plaintiff of Bombay and Khamgaon, the Defendants are entitled to a set off thereafter to a sum of : (a) Rs. 17,000/ as claimed by the Defendants or to a set off.
(b) Rs. 4,535 12 0 as stated by the Plaintiff ?" Later, amended pleadings led to amended issues of which issues 4 to 6 are meaningful and are set out below with the findings thereon; "4.
Whether the Bombay and Khamgaon shops owned by plaintiff 's partners are so connected with each other that a composite account of the entries in two shops can be made by the defendants ? Yes 5.
(a) Whether a sum of Rs. 44,697/10 is debited to the defendants in the account of the Bombay shop ? Yes .
(b) Are these entries proper and correct ? Yes.
(c) And in time ? Yes.
Whether on making an account of the two shops of the plaintiff of Bombay and Khamgaon the defendants are entitled to a set off and thereafter to a sum of (a) Rs. 17,000/ as claimed by the defendants or to a set off No.
(b) Rs. 4,535/12/ as stated by the plaintiff ? Yes.
The plain fact emerges that the two parties were having dealings with each other, that the dealings in Khamgaon and Bombay were inter related and not totally different transac tions, dissociated in nature and divorced in period.
The trial judge treated the totality of transactions as a com posie account and the suit as one on accounts.
He ' granted a decree on these terms 978 "The Plaintiff shall render an account of the Bombay shop to the defendant, who shall be entitled to falsify and surcharge.
A preliminary decree for accounts under order 20, rule 16 CPC shall be drawn up.
After making an account and the necessary adjust ment, the eventual liability inter se shall be determined.
Costs shall abide the result.
" The plaintiff appealed and the defendant filed cross objec tions.
After a 'study of O.8, r. 6 CPC, the High Court felt that the Bombay accounts should not have been gone into and the defendant 's claim by way of set off alone was available for adjudication.
Since it had been held that the silver bars were an item in the Khamgaon shop accounts, the direc tion for rendition of the Bombay account was illegal.
The Court observed: "The learned lower Court was thus in error in converting the claim of set off into a claim for rendering accounts by the plain tiff to the defendants in respect of the deal ings made in the Bombay shop.
The lower Court was bound in terms of Order 8 Rule 6, to treat this claim of set off as a money claim in respect of the ascertained amount and to find whether such amount was due to the defendants from plaintiff.
If such amount was found due to the defendants from the plaintiff, then the defendants would be entitled to set off that amount as against the claim of the plaintiff.
The decree as passed by the learned lower Court will, therefore, have to be set aside.
It is necessary for the trial Court to decide as to, what amount was due to the defendants from the plaintiff.
The issue was framed and parties have led evidence.
The tower Court shall decide the issues left undecided for final decree.
The learned lower Court will decide whether it is proved on the facts that the defendants have to recover Rs. 17,000/ from the plaintiff, and if so found, will adjust the eventual liability inter se, and if it is found that any of the parties has to recover any amount from the other, a decree should be accordingly passed.
The case is, therefore, sent back to the trial Court who will decide as to what amount is due to the defendants from the plaintiff.
Thereafter whatever amount is found due to the defendants shall be adjusted towards the proved claim of the plaintiff in respect of the deposits in the Khamgaon shop.
The Court shall pass a decree in favour of the party in whose favour the.
balance will be found due.
" It is true that the High Court 's observations inhibited the Bombay accounts being generally reopened but when the case was remanded for fresh decision, the trial Court, apparently pressed by the injustice of amputating the composite deal ings, went on to hold that while the plaintiff was right in his demand vis a vis the Khamgaon Khata, the defendant was entitled to a sum of Rs. 4,535/12/ from the Bombay accounts and awarded to the plaintiff a decree for the net balance of 979 Rs. 7,464/4/ .
This he did in purported compliance with the High Court 's direction.
He was bound by it and to act contrary to a higher court 's order is to be subversive of the discipline that the rule of law enjoys in our hierarchi cal justice system.
The trial Judge, in recording findings on all the issues, did a comprehensive investigation of the Bombay accounts since the silver bars, although entrusted to the Khamgaon shop,. were sold in Bombay and rightly credited in the Bombay Khata.
To pick out a single true item which had been inextrica bly got enmeshed in the skein of entries and cross entries was to tear up the fabric of the whole truth.
In a finer sense, harmony is the beautiful totality of a whole sequence of notes and the concord of sweet sounds is illtuned into disjointed discord if a note Or two is unmusically cut and played.
Truth, ' like song, is whole and half truth can be noise: Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmo nising human relations.
Law 's finest hour is not in medi tating on abstractions but in being the delivery agent of full fairness.
This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings.
Let us pick up the threads of the litigation.
Even the interrogatories served and the answers elicited made it clear that while there were two shops in two different venues, the dealings between the plaintiff and the defendant were closely connected rather, integrated.
That furnished the justification for the trial Judge to examine the Bombay accounts between the parties and he came to the factual conclusion: 'I see absolutely no reason to doubt the cor rectness of any of the entries in these extracts of plain tiffs account book (exht.
P 23).
I answer issues 5 (a) and (b) in the affirmative.
exhibit P. 23 contains on the credit side the sale proceeds of defendant 's silver which was sold in Bombay.
A plea had been feebly raised by the defendants that some of the items in the Bombay account were barred by limitation and the plaintiff could not claim credit for them.
This plea was also examined by the trial Court and negatived with the observation: 'I hold that in view of the credit and debit entries in exhibit P. 23 all the debit entries were within time at the material period.
I answer issue 5(c) in the affirmative '.
Thus there was no denial of fairness in the trial be cause the Bombay accounts in their entirety were put in issue, and focused on by both sides in the evidence followed by appropriate findings.
The upshot of this process was, in the language of the trial Court: 'Thus all things consid ered plaintiff is entitled to Rs. 12,000/ minus Rs. 4,535/12/ i.e., Rs. 7,464/4/ from the defendants '.
The court denied costs to both since neither came with clean hands.
Both sides were guilty of not playing cricket and, in this game of over reaching each other, the Court 's penal ty is denial of costs.
This rule was adopted by the trial Court.
980 When the case went up in appeal, the High Court harked back to the order of the Nagpur Bench in the same case in a revision filed against the order of payment of court fee for the counter claim.
It is true the High Court had then held that only a specific sum relating to the sale of silver bars was the basis of the counter claim and the entire accounts of the Bombay shop was not at large before the Court.
The High Court referred again to the decree first passed by the trial Court to render an account of the Bombay shop to the defendant on the footing that the accounts in Bombay and Khamgaon were so interconnected as to warrant a composite understanding of the entries in the two shops.
This ap proach of the trial Court in passing a preliminary decree for rendition of accounts was set aside by the High Court in appeal at the first round on the score that the plea the defendant was confined to one of set off under O.8, r. 6 Therefore, argued the High Court, "A mere liability to account cannot be an answer by way of set off to the claim of the plaintiff.
In fact, the defendants in their written statement, claimed by way of set off such ascertained sum of money which, according to, them, was Rs. 17,000/ .
It is because such ascertained sum was claimed by way of set off that the claim was entertained for investigation by the lower Court.
Therefore, the only question that was before the learned lower Court was to find out what amount was due to the plaintiff from the defendants in respect of the deposits of amounts made in the Khamgaon shop and also to find out what amount was due to the defendants from the plaintiff in respect of the silver transactions made in the Bombay shop.
The question of rendering accounts by the plain tiff to the defendants could not arise on the facts of the case.
" The remand order was undoubtedly binding on the lower Court and had directed a limited enquiry and passing of a decree 'in favour of the party in whose favour the balance will be found due '.
The High Court held that after the remand the learned trial Judge had no jurisdiction to look into the Bombay accounts as a whole and on account of the misapprehension of the observations of the remand order an illegal decree had been passed in favour of the plaintiff.
What was the misapprehension about? While directing a remand, the High Court ordered that issue 6 should be decid ed by the trial Court and this issue has been set out earli er by us.
Naturally, the trial Court took the view that the High Court, having ordered an adjudication of issue No. 6, vested it with the jurisdiction to enquire into the Bombay accounts in taro and pass the decree that woe have already indicated, viz., a deduction of the surplus due to the defendant from the Bombay accounts from the amount due to the plaintiff from the defendant according to the Khamgaon accounts.
The arithmetic is not in dispute and, indeed, while both the counsel have taken us through the evidence in the case we are satisfied that if both the Khamgaon and the Bombay accounts had to be gone into, 981 the decree passed was correct both regarding the quantum and on the issue of limitation.
This we affirm because Shri Phadke had feebly pressed before us that in any case his client should be given a fresh opportunity to make out his case regarding the various entries in the Bombay Khatha.
We are not satisfied that the defendant has not had a full say and we are therefore disinclined to accede to this request.
The surviving question before us is whether it was in order for the trial Court to have investigated the accounts in the two shops together as if they were transactions between the same two persons or whether the remand order of the High Court at the first round had lettered the trial Court 's hands in doing justice in this comprehensive way.
The suit is for a sum due on accounts.
The parties are the same.
There are two shops belonging to the same owner.
The return of the income from the two shops, for income tax pur poses, is a consolidated one.
In short, there was only one person who owned two shops and it is wrong to construe the situation as if there were two juristic entities or person al.
Secondly, the defendant, who dealt with the plaintiff in the two shops, was the same person.
He had no dual charac ters to play.
The dealings were either in one or in the other shop.
They were business dealings between two busi nessmen, during the same period, and even inter related, to such an extent that sometimes advances were made from one shop and realisations were made in the other shop.
In short an artificial dissection of these transactions could not square up with the reality of the situation.
Shri Phadke urged that one contract was one transaction and a set of contracts need not be necessarily brought up in the same action between the same parties.
We consider that the true nature of the action here is a suit on accounts for the sum due on striking a balance.
That itself is the cause of action.
Such a suit is not unfamiliar and such a cause of action may be made up of various minor transactions.
Viewed at the micro level each may be a single contract.
But viewed at the macro level as a suit on accounts, it is a single cause of action.
If the present action is one on accounts and if the various entries in the two shops at Khamgaon and Bombay involve transfusion of funds and goods, there is no reason why we should not accept as sound the approach made by the trial Court that the entirety of accounts in the two shops should be viewed as a composite one.
It reduces litigation; it promotes the final financial settlement as between the parties it has the stamp of reali ty.
Otherwise it would be an odd distortion to grant a decree for the plaintiff for, say Rs, 10,000/ on the strength of the Khamgaon accounts while he owes.the defend ants Rs. 50,000/ according to the Bombay accounts.
Order 8, rule 6, CPC deals with a specific situation and does not prevent the Court, Where the facts call for wider relief, from looking into the accounts in both places to do ultimate justice between the parties.
Procedure is the.
handmaid and not the mistress of justice and, in this spirit, the trial Court 's adjudication cannot be faulted.
Be that as it may, in an appeal against the High Court 's finding, the Supreme Court is not bound by what the High Court might have 982 held in its remand order.
It is true that a subordinate court is bound by the direction of the High Court.
It is equally true that the High Court, hearing the matter on a second occasion or any other court of co ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it.
This is the correct view of the law, although Shri Phadke controverted it, without reliance on any authority.
Nor did Shri S T Desai, who asserted this proposition, which we regard as correct, cite any precedent of this Court in support.
However, it tran spires that in Lonankutty vs Thomman(1) this proposition has been affirmed.
Viewed simplistically, the remand order by the High COurt is a finding in an intermediate stage of the same litigation.
When it came to the trial court and esca lated to the High Court, it remained the same litigation.
The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before us.
If, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded, we too are bound in the Supreme Court.
Other wise, the whole lis for the first time comes to this Court and the High Court 's finding at an intermediate stage does not prevent examination of the position of law by this Court.
Intermediate stages of the litigation and orders passed at those stages have a provisional finality.
After discussing various aspects of the matter, Chandrachud J., speaking for the Court in Lonankutty (supra) observed: "The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment." The contention barred before the High .Court is still available to be canvassed before this Court when it seeks to pronounce finally on the entirely of the suit.
Shri Desai cited before us the decision of the Bombay High Court, in Ratanlal(2), as Fart of his argument.
There in it is laid down that a remand order will not operate as res judicata and preclude the remanding court from reopening it at the subsequent stage of the same continuing proceeding when the law underlying the remand order is differently interpreted by a larger Bench or by the Supreme COurt.
Such an order or finding recorded at the stage of remand happens to be interlocutory and cannot terminate the cause finally so that when the litigation comes up before the remanding court, the previous remand order would ordinarily be conclu sive and binding like any other interlocutory order.
But exceptions there are where a re consideration of such an order is necessitated either by discovery of fresh matter or of unforeseen development subsequent to the order or change of law having retrospective effect.
We do not make any comments on this argument of Shri Desai and leave it at that.
(1) ; (2) 983 The trial Court 's judgment has therefore to be restored.
It accords with justice and with law.
There will thus be a decree in favour of the plaintiff in a sum of Rs. 7,464/4/ .
Even truthful cases urged through unveracious forensic processes must be visited with the punitive curial displeas ure of denial of costs and discretionary interest.
Here the plaintiff sued for a sum of Rs. 12,000/ and gets a decree for less than Rs. 8,000/ .
We deny him costs for the amount decreed in his favour but allow costs for the defendant to the extent he has succeeded (viz., for Rs. 4,535/12/ ).
The equities of the situation are such, especially having regard to the long lapse of time and.
the dubious attitude of the plaintiff and litigative prolixity, that we do not award interest on the amount decreed at all.
P.B.R. Appeal al lowed.
| IN-Abs | The appellant (Plaintiff) had two shops, one in his village and the other in a city.
The respondent (defendant) had dealings of various kinds with the appellant at both the places.
The plaintiff filed a suit claiming a certain sum representing the net balance due to him from the respondent (defendant) on the village account.
The defendant on the other hand claimed that, had the city account been taken into account, it was he who would be entitled to a larger sum from the plaintiff.
The plaintiff claimed that the accounts of the village and city should not be mixed up.
The trial Court held that, though the shops were located at different places, they were owned by the same person and in equity and law, set off was Permissible and it accordingly granted a decree.
On the plaintiff 's appeal, the High Court held that rendition of city accounts was illegal and remanded the case to the trial Court.
On remand, the trial Court held that while the plaintiff was right in his demand vis a vis the village shop the defendant was entitled to a certain sum from the city account and awarded a decree to the plaintiff m respect of the net balance.
In appeal, the High Court held that after remand the trial Court had no jurisdiction to look into the city accounts as a whole and on account of a misapprehension of the observations of the remand order, an illegal decree had been passed in favour of the plaintiff.
Restoring the trial Court 's order, HELD: The true nature of the action in this case was a suit on account to: the sum due on striking a balance.
That itself was the cause of action.
[981E] 1.
The trial Court 's view that the entirety of account in the two shops could be viewed as a composite one, was sound.
The parties are the same.
There was only one person who owned the two shops and it is wrong to construe the situation as if there were two juristic entities.
The defendant who dealt with the plaintiff in the two shops was the same person.
The dealings were either in one or the other shop.
The artificial dissection of the transactions could not square up with the reality of the situation.
[981C D] In the instant case there was no misapprehension on the part of the trial Court of the observations made by the High Court in its remand order.
While directing remand, the High Court ordered that issue No. 6, namely, whether on making an account of the two shops of the plaintiff the defendants were entitled a set off and thereafter to certain sums, should be decided by the trial Court.
The trial Court natu rally took the view that the High Court having ordered an adjudication of the issue, vested it with jurisdiction to enquire into the city accounts in toto and pass a decree.
If the village and city accounts had to be gone into, the decree passed was correct.
[980G H] 2.
Order 8, rule 6 CPC deals with a specific situation and does not prevent the Court.
where the facts call for wider relief, from looking into the accounts in both places to do ultimate justice between the parties.
[981 H] 974 3.
(a) After remand by the High Court, the subordinate Court is bound by the direction of the High Court, the same High Court hearing the matter on a second occasion or any other Court of co ordinate authority hearing the matter, cannot discard the earlier holding.
Both a finding in a remand order cannot bind a higher Court when it comes in appeal before it. [982A B] (b) The remand order by the High Court is a finding at an interreed are stage of the same litigation.
When it came to the trial Court and escalated to the High Court, it remained the same litigation.
The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before the Supreme Court.
[982C D] (c) The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challeng ing the correctness of the view taken by the High Court in that judgment.
[982E] Lonankutty vs Thomman ; , followed.
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