judgement
stringlengths 593
808k
| dataset_name
stringclasses 3
values | summary
stringlengths 0
158k
|
|---|---|---|
Civil Appeal No. 1347 of 1970.
From the Judgment and Decree dated 29 4 1969 of the Jammu and Kashmir High Court in Civil Appeal No. 67 of 1965.
G.L. Sanghi, V. K. Boone and Shri Narain for the Appellant.
Gopi Nath Runzru, K. L. Taneja and section L. Aneja for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
, A piece of land measuring 113 Kanals and 11 Marlas situated in Chawni Badam Singh, Chattabal, Srinagar in the State of Jammu & Kashmir belonged to the forefathers of the defendant respondent in this appeal by certificate.
Indisputably the res 283 pondent 's ancestor was Assamidar of the land, that is to say, he was the land holder as distinguished from land owner.
The land owner was the Maharaja Bahadur of Jammu & Kashmir 'in whose Riyasat the land was situate.
Proposals were made in the year 1893 to take this land from the ancestor of the respondent as it came under a timber depot established on adjacent Government land.
The land was taken possession of and as was the practice prevalent during the Maharaja 's time only rent was remitted and no compensation was paid for taking over the land.
The respondent 's ancestor had merely a right of possession and no proprietory right in the land.
He lost the right of possession too on the Government dispossessing him and taking possession for the purpose of the timber depot.
Sixty years later the a Respondent filed an application before the then Prime Minister of Jammu & Kashmir for payment of compensation of the land.
Inquiries were made from the various officers of the various department and eventually instead of deciding as to whether the State was liable to pay any compensation in respect of the land which had been taken over 60 years ago or not the decision taken was to start a new land acquisition proceeding under the Jammu & Kashmir State Land Acquisition Act, 1934 which is at pari materia with the Central Land Acquisition Act, 1894.
Notice under section 4 of the said Act was issued in or about the year 1955 and the Collector, Srinagar made an Award determining the compensation for the land at Rs. 32,645.62 paise.
The respondent asked for a reference and on reference being made the learned District Judge determined the compensation at Rs. 35,908.10 paise.
The State preferred an appeal.
The High Court restored the amount fixed by the Collector and knocked down the enhancement made by the District Judge.
For the first time in the High Court an application was filed under order 41 Rule 27 of the Code of Civil procedures claiming adverse possession of the land and for the taking of additional evidence.
The High Court repelled this contention.
Later a Review Petition was filed in the High Court claiming that the land had already been acquired and the entire land acquisition proceeding was without jurisdiction and a nullity.
The High Court was asked to award no compensation.
The High Court rejected this Review Petition.
Thereafter the present suit was filed saying that the defendant respondent had committed fraud and the land acquisition proceeding had been taken as a result of mistake of fact and law and that the entire proceeding was vitiated.
The suit was filed on the original side of the High Court of Jammu & Kashmir.
The learned Judge dismissed the suit.
The State, the appellant in this appeal, failed in appeal before the Letters Patent Bench of the High Court.
The matter has now come before us.
284 The findings of the learned single Judge are: "(1) That the lands in dispute were in continuous possession of the forest department since 1894 A.D. (2) That no rent or compensation was paid to the defendant or his ancestor for these lands.
(3) That the lands in dispute were recorded as "Khalsa Sarkar" which means that the proprietory interest vested in the Government.
(4) That at the time when the land acquisition proceedings were initiated, the officers concerned of the plaintiff were fully aware of the facts mentioned above.
But their attention was not specifically drawn to the council resolutions.
(5) That the forest records having been burnt in the year 1943 and after a fresh enquiry was initiated at the instance of the Advocate general, the council resolutions were traced in the Government repository at Jammu.
(6) That the old settlement file which contained the resolutions perhaps did not form part of the land acquisition file.
" In regard to finding No. 6 there was some controversy as to whether the land acquisition file contained the old resolutions or not and whether the attention of the authorities was drawn to them.
We shall assume in favour of the respondent as found by the learned Trial Judge that there was no fraud practised by him nor was there any mistake of fact on the part of the authorities concerned in starting the land acquisition proceeding.
The Appellate Bench of the High Court consisted of Mian Jalal ud Din J. and Anant Singh J.
They differed on most of the points although agreed in their conclusion that the appeal should be dismissed.
The findings of Mian Jalal ud Din J. are . (1) "That it could not be said that the authorities dealing with the acquisition proceedings were ignorant about the factual aspect of the matter that the land had been resumed in the year 1893 under council resolution and that no compensation was to be paid for this, and that its character was that of "KHALSA" and it remained in possession of the forest department for over 60 years. " (2) "In our opinion the initiation of acquisition proceedings was wholly uncalled for as there was nothing to be acquired.
Land, which was meant to be acquired, was already 285 resumed by the Government and in possession of the Forest Department right from the year 1893 A.D. under the orders of the council and was shown as Khalsa ;" (3) "It appears to be a case of gross negligence on the part of the officers of the Government dealing with the acquisition matter.
The plaintiff cannot avoid the decree on the ground that his officers have acted in gross negligence;" and (4) that the order of the High Court in appeal and in review operated as res judicata.
The plaintiff appellant was also estopped from challenging the land acquisition proceeding.
Mian Jalal ud Din J. agreed in this regard with the learned single Judge.
Anant Singh J. did not agree with the other learned Judge on the question of estoppel and res judicata but agreed with him that negligence was no ground for setting aside the Award made in the land acquisition proceeding and concurred in the dismissal of the appeal.
Even on the findings recorded by the courts below this appeal must succeed.
We shall, however, briefly refer to some facts which emerge from the council resolutions and some other documents of the years 1893 and 1894.
P.W. 5/1 is State council Resolution No. 2 dt.
7 6 1893 by which sanction was accorded to the allotment of land with existing house situated at Purani Chawni for opening a Government Timber Depot.
Eventually land in question also came under this depot.
P.W. 5/2 is State Council Resolution No. 17 dated 4 9 1893 showing that from the report of the Tehsildar it appeared that the Forest Department wanted to take possession of the land in question which was a sown land by storing timber there.
Council Resolution No. 10 dated 28 10 1893, Ext.
PW 5/3 is very important.
Now this resolution states that the land shall have to be compulsorily acquired but "as per practice in the country only the land revenue shall have to be remitted and the cultivators cannot get any compensation in cash nor can the Council sanction taking of the land on lease.
Of course there is no bar to the grant of cultivated land of the same quality to the cultivators in exchange by the Government.
" Next comes the Resolution No. 8 dated 17 2 1894, Ext.
PW 5/4 showing "(a) The Governor should give the land required by the Conservator of Forests and the land Revenue of the land which has come under the timber depot should be remitted.
" Thereafter the order recorded is "The proposal of the Settlement Commissioner is accepted.
The Revenue Department shall comply.
" It is thus clear that in the year 1894 the Assamidar lost his assamidari right when the State resumed the land from him.
There was no 286 law prevalent then that compensation was to be compulsorily given.
It depended upon the sweet will of the Riyasat to give some other land in lieu of the land acquired.
In this case also it appears only the land revenue was remitted.
And probably, as documents indicate, compensation was also paid for the standing crops in the land.
But what is clear to us with certainty is that no right was left in the land holder in respect of which he could acquire a better right on the basis of the report of the Glancy Commission in 1932 as has been remarked by the learned Trial Judge.
Whatever right was possessed by the respondent 's ancestor was dead and gone in the Year 1894.
P. W. 14/2 is Intikhab Jamabandi Mauza Chawni Badam Singh Tehsil.
In the remarks column the note made runs thus: "By order of Durbar No. 2381 dated 5th Assuj '55 the total area of village has been excluded from the land revenue, and the total land of this village has come under the timber depot and therefore the total land has been recorded as Khalsa.
The original file has been returned to Durbar on 29th Assuj after necessary action.
Dated 29th Assuj '55.
" The year '55 is samvat year 1955 which will roughly correspond to 1897.
Thus there is no doubt that the land was resumed by the Durbar from the ancestor of the respondent before the end of the 19th century and it was recorded as 'Khalsa '.
The land had become the State land in the full sense of the term and belonged to the State since then.
No semblance of any right title or interest was left in the respondent 's ancestor thereafter.
Yet after 60 years the matter was re agitated by the respondent by claiming compensation in respect of the land which had been taken possession of long ago by the State.
The respondent did not claim that any right title or interest was left in him.
He merely wanted on compassionate grounds compensation for the land.
One can under stand if on compassionate grounds some compensation with reference to the year when the land was taken possession of could be determined and paid.
But that was not done.
A very queer procedure was adopted of acquiring the land under the State Land Acquisition Act afresh thus determining the compensation on the basis of the market value of the land prevailing 60 years later.
We have gone through the letter dated 17 12 1954 Ext.
P.W. 14/A written by Tehsildar; the Patwari 's Report dated 12 4 1955 Ext.
D.W.4/A; the Tehsildar 's Report dated 21 4 55 Ext.
P.W. 19/B/2; letter dated 3 5 55 Ext.
D.W.12/1 written by the Deputy Commissioner to the Commissioner; Ext.
P.W. 287 1/2 the letter dated 2 6 1955 written by the Conservator of Forests to the Chief Conservator of Forests; the office Note dated 9 6 1955 Ext.
P.W. 1/3 and Chana 's letter dated 22 6 1955, Ext.
P.W. 1/5.
On going through these documents it appears to us that under the influence of some high ups a case was made out for payment of compensation to the respondent in respect of the land acquired 60 years ago by acquiring it again which naturally led to the determination of the market value of the land in or about the year 1955.
The State Exchequer cannot be made to suffer for such wanton and illegal actions of its officers.
The land had been resumed long ago.
It belonged to the State.
The whole proceeding of land acquisition was a nullity.
The Award resulting therefrom was also ultra vires and a nullity.
It mattered little whether the proceeding was taken as a result of the fraud or mistake or otherwise.
We are accepting the findings of the courts below that the respondent had not practised and fraud nor was the land acquisition proceeding started as a result of any mistake of fact.
It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high ups to help the respondent.
It is well settled that there is no question of any acquisition of the State 's own land as was purported to be done in this case.
In The Government of Bombay vs Esufali Salebhai it has been observed at page 624 thus: "It is quite true that there can be no such thing as the compulsory acquisition of land, owned by and in the 'occupation and control of the Crown.
The Land Acquisition Act cannot apply to such lands, because all Crown lands being vested in the Government, they are competent and free to devote any of those lands to a public purpose.
It is a contradiction in terms to say that the Government are compulsorily acquiring that which they have already acquired otherwise, both as to title and possession.
" The same view has been taken in Mohammad Wajeeh Mirza vs Secretary of State for India in Council when at page 33 the passage from the judgment of Chandavarkar J. extracted above was quoted with approval.
In the case of The Deputy Collector, Calicut Division vs Aiyavu Pillay and others Wallis J.
Of the Madras High Court, in our opinion, correctly observed "It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired 288 under the Act but only for the acquisition of such interests in the land.
as do not already belong to Government.
" Venkatarama Ayyar J. speaking for this Court in The Collector of Bombay vs Nusserwanji Rattanji Mistri & others after quoting the above passage of Wallis, J. from the Madras decision aforesaid remarked at page 1322 "With these observations, we are in entire agreement" and added "When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own" The Courts below have heavily relied upon the decision of the Bombay High Court in Secy.
of State vs Tayasaheb Yeshwantrao Halkar.
This decision, in our opinion, is clearly distinguishable.
Firstly the principle in the case of Marriot vs Hamoton which was applied in the Bombay case is not applicable in the present case.
In the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back.
In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back.
In the instant case the money has not yet been paid.
The suit is for the cancellation of the Award which is a nullity.
The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the Government, possession was with the other side.
In the land acquisition proceeding possession was acquired on payment of compensation.
In that event it was held that money paid was not under any mistake of fact or law.
It was paid for divesting the defendant of his possession.
In the instant case neither title nor possession was with the defendant.
The entire bundle of rights in the land had vested in the State long ago and there was nothing left to be acquired.
In such a situation the High Court was wrong in following the Bombay decision and in applying its ratio to the facts of this case.
We may briefly dispose of the point of estoppel and res judicata.
We approve of the view taken by Anant Singh, J. in that regard.
We may also add that the plea taken in the appeal by filing a petition under order 41, Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act.
The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition 289 proceeding a nullity.
Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal.
It could not operate as res judicata in the present suit.
The observations of the High Court were without jurisdiction.
Nor did arise any question of estoppel in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him.
He had already lost his land.
He merely wanted compensation.
The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction.
That being so no question of estoppel arose in this case.
For the reasons stated above, we allow this appeal; set aside the judgments and decrees of the High Court; decree the plaintiff 's suit; declare the land acquisition proceeding and the Award or the decree made thereunder as nullities.
Since the defendant respondent has been unnecessarily harassed in the suit by the wrong and illegal actions of the authorities of the State, we direct that the plaintiff appellant will get no costs.
On the other hand, the defendant respondent will get costs of the suit and the appeals in all the three courts, namely, the Trial Judge, the Division Bench and this Court.
N.K.A. Appeal allowed.
| IN-Abs | The respondent 's forefather was the landholder of a piece of land in the State.
The land was taken possession of in 1897 as the land came under a Timber depot established on land adjacent to Government land.
The practice prevalent during the Maharaja 's time was that only rent was remitted and no compensation was paid for the taking over the land.
The respondent 's ancestors had no proprietory right in the land and the right of possession was also lost on the Government dispossessing him.
Some sixty years later, the respondent filed an application before the then Prime Minister of the State for payment of compensation of the said land.
Instead of deciding as to whether the State was liable to pay compensation in respect of the land which had been taken over sixty years ago, a new land acquisition proceeding under the Jammu and Kashmir State Land Acquisition Act, 1934 was started in the year 1955 and an Award for Rs. 32,645.62 as compensation for the land was made by the Collector.
On reference the District Judge increased the amount of compensation.
On appeal by the State, the High Court restored the amount fixed by the Collector.
The respondent 's application under order 41 Rule 27 C.P.C. was dismissed by the High Court.
A review petition that the land had already been acquired and that the land acquisition proceeding was without jurisdiction and a nullity was rejected.
A suit was filed that the land acquisition proceedings had been taken as a result of taken of fact and law and that the entire proceeding was vitiated.
The suit was dismissed.
Appeal to a division Bench was also dismissed.
Allowing the appeal, ^ HELD: In 1894 the Assamidar lost his assamidari right when the State p resumed the land from him.
There was no law then that compensation was to be given.
It depended upon the sweet will of the Riyasat to give some other land in lieu of the land acquired.
Only the land revenue was remitted, and documents indicate, compensation was also paid for the standing crops in the land.
No right was left in the landholder in respect of which he could acquire a better right.
Whatever right was possessed by the respondent 's ancestor was dead and gone in the year 1894.
[285H, 286A B] 2.
The land was resumed by the Durbar from the ancestor of the respondent before the end of the 19th century and it was recorded as 'Khalsa '.
The land had become the State land in the full sense of the term and belonged to the State since then.
No semblance of any right, title or interest was left in the respondent 's ancestor thereafter.
[286D E] 3.
A queer procedure was adopted for acquiring the land under the State Land Acquisition Act afresh, thus determining the compensation on the basis of the market value of the land prevailing 60 years later.
Under the influence of 282 some high ups, a case was made out for payment of compensation to the respondent in respect of the land acquired sixty years ago by acquiring it again which led to the determination of the market value of the land in the year 1955.
[286G, 287A] 4.
The State Exchequer cannot be made to suffer for illegal actions of its officers.
The land had been resumed long ago and belonged to the State.
The whole proceeding of land acquisition was a nullity and the Award resulting therefrom was ultra vires.
It mattered little whether the proceeding was taken as a result of fraud or mistake or otherwise.
The respondent had not practised any fraud nor was the land acquisition proceeding started as a result of any mistake of fact.
It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high ups to help the respondent.
There is no question of any acquisition of the State 's own land as was purported to be done in this case.
[287B D] Government of Bombay vs Esufali Salebhai, I.L.R XXXIV Bombay, 618; Mohammad Wajeeh Mirza vs Secretary of State for India in Council, A.I.R. 1921 oudh, 31, The Deputy Collector Calicut Division vs Aiyavu Pillay and others, IX Indian Cases, 341; The Collector of Bombay vs Nusserwanji Rattanji Mistri & others ; referred to.
of State vs Tayasaheb Yeshwantrao Holkar, A.I.R. , & Narriot vs Hamoton distinguished.
The plea taken in the appeal by filing a petition under order 41 Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act.
The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition proceeding a nullity.
Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal.
It could not operate as res judicata in the present suit.
The observations of the High Court were without jurisdiction.
Nor did any question of estoppel arise in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him.
He had already lost his land.
He merely wanted compensation.
The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction.
[288H, 289A B]
|
Civil Appeal No. 1445 of 1979.
Appeal by Special Leave from the Judgment and order dated 17th October, 1978 of the Delhi High Court in Revision Petition No. 689 of 1978.
327 Mrs. Shyamala Pappu, P. H. Parekh, Rain Karanjawala and Miss Vineeta Caprihan for the Appellant.
B.D. Sharma, for the Respondents.
The following Judgment of the Court was delivered by KRISHNA IYER, J. A short but interesting point affecting the validity and propriety of an order under section 15(7) of the Delhi Rent Control Act, 1958 (for short, the Act), has been raised by counsel for the appellant.
The decision of this question is of importance and we regard it as necessary to clarify the position so that the error committed by the trial judge may not be repeated.
Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and if evicted, will be helpless.
Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas to negative the landlord 's claim the court will not hear him.
Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent.
That is why a discretion is vested, not a mandate imposed.
Section 15(7) reads thus: "If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.
" We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power.
He may, or not strike out the tenant 's defence.
A judicial discretion has built in self restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party 's defence is an exceptional step, not a routine visitation of a punitive esteem following upon a mere failure to pay rent.
First of all, there must be a failure to pay rent which, in the context, indicates willful failure, deliberate default or volitional non performance.
Secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence.
Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence.
The last resort 328 cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out.
Once this teleological interpretation dawns, the mist of misconception about matter of course invocation of the power to strike out will vanish.
Farewell to the realities of a given case is playing truant with the duty under.
J lying the power.
There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under section 15(7) was imperative whenever the tenant failed to deposit or pay any amount as required by section 15.
The provisions contained in section 15(7) of the Act are directory and not mandatory.
It cannot be disputed that section 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of non payment or non deposit.
The effect of striking out of the defence under section 15(7) is that the tenant is deprived of the protection given by section 14 and, therefore, the powers under section 15(7) of the Act must be exercised with due circumspection.
It will be noted that section 15(7) of tho Act is not couched in mandatory language.
It uses the word 'may '.
The difference in the language of section 15(7) with that of section 13(5) of the repealed Act is significant and indicates that in the present Act there is a deliberate modification of law in favour of the tenant.
In this connection, it would be pertinent to refer to the observations of the Court in V. K Verma vs Radhey Shyam.(1) In that case, the Court compared section 13(5) of the Delhi Rent Control Act, 1952 which laid down that on the failure of a tenant to deposit the arrears of rent within the prescribed time, "the ' court shall order the defence against ejectment to be struck out." with section 15(7) of the Delhi Rent Control Act, 1958 which substitutes 'may ' and observed: "The change of the words from "The Court shall order the defence against ejectment to be struck out" to the words "the Controller may order the defence against eviction to be struck out" is clearly deliberate modification in law in favour of the tenant.
Under the old Act the Court had no option but to strike out the defence if the failure to pay or deposit the rent is proved; under the new Act the Controller who takes the place of the Court has a discretion in the matter, so that that in proper cases he may refuse to strike out the defence.
" 329 These observations leave no doubt that under section 15(7) of the Act, it is in the liberal discretion of the Rent Controller whether or not to strike out the defence.
We stress the need for the Court to be aware of the milieu before exercise of this extreme power because the present case is illustrative of its erroneous use.
The facts in this case cry for intervention, if one may say so.
The appellant is a working woman who has to get to office and be there between 9.00 a.m. to 5.00 p.m.
Naturally, she has a difficulty in appearing in court for every hearing and so she prudently engaged an advocate to appear on her behalf and take proper steps to protect her interests.
It is common ground that all the arrears of rent had been paid by her by cheque or in cash to her advocate.
It also transpires that the amounts received by cheque or in cash by the advocate were not deposited in court or paid to the landlord.
It is further seen that when the tenant found that the amounts were not paid to the landlord by her advocate, she made a complaint to the Bar Council of Delhi and the matter is pending inquiry.
From these circumstances, we are inclined to conclude indeed, that is the only reasonable conclusion in the circumstances that the tenant has not failed to pay and, in any case, the exercise of judicial discretion must persuade the court not to strike out the defence of the tenant but give her fresh opportunity to make deposit of the entire arrears due.
In the present case the deposit has eventually been made in this Court when it directed such deposit to be made.
The tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself.
To trust one 's advocate is not to sin deliberately.
She was innocent but her advocate was innocent.
No party can be punished because her advocate behaved unprofessionally.
The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic ethic of a noble profession.
She did not fail to pay or deposit and, in any view, no case for punitive exercise of discretion has been made out.
The conclusion necessarily follows that the striking out of the defence was not legal and the appellant should have been given an opportunity to contest the claim of the landlord for her eviction.
A sensitized judicial appreciation was missing and, unfortunately, the High Court did not closely look at this facet of the issue.
On the other hand, the appeal was dismissed as not maintainable in view of section 25B. 330 An order striking out the defence is appealable under section 38.
So this order is appealable.
The reliance on section 25B(8) to negative an appeal is inept because this is not an order under that special section but one under section 15.
Moreover, section 25B(10)preserves the procedure except to the extent contra indicated in section 25B. Negation of the right of appeal follows from section 25B(8) only if the order for recovery is made 'in accordance with the procedure specified in this section ' (i.e. 25B).
Here the dispossession was not ordered under the special provision in section 25B but under section 15.
Nor can the theory of merger salvage ' the order because the legality of the eviction order depends on the legality of the order under section 15(7).
Once that order is found illegal what follows upon that cannot be sustained.
In the view we take of the effect of section 15(7) we allow the appeal in exercise of our jurisdiction under Article 136 and direct the case to go back to the Rent Controller.
Having regard to the fact that the landlord has not been able to make out his case of bona fide requirement for long because of the pendency of these proceedings, we direct the Rent Controller to dispose of the petition for eviction expeditiously and, as far, as possible, within four months from today.
Any further arrears, if accrued, will be paid under the directions of the Rent Controller on or before a date fixed by him.
The order for eviction passed in this case after striking out the defence must fail 13: in view of our holding that the order striking out the defence itself is , illegal.
Necessarily, the orders of the Rent Controller and of their High Court must be and are hereby set aside.
The parties will appear before the Rent Controller on 16th April, 1980.
There will be no order as to costs.
S.R. Appeal allowed.
| IN-Abs | The appellant tenant, a working woman engaged an advocate to appear on her behalf and take proper steps to protect her interests, as she had a difficulty in appearing in Court for every hearing.
She paid all the arrears of rent by cheque or in cash to her advocate who failed either to deposit the Court or to pay to the landlord.
The Rent Controller refused to look into this and struck off her defence under section 15(7) of the Delhi Rent Control Act, 1958.
The appeal was dismissed as not maintainable in view of section 25B of tho Act.
Hence the appeal by special leave.
Allowing the appeal, the Court.
^ HELD :1.
Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted, will be helpless.
Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out together the defence of the tenant which means that even if he has excellent pleas to negative the landlord 's claim the Court will not hear him.
Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent.
That is why a discretion vested, not a mandate imposed in Section 15(7) of the Delhi Rent Control Act.
[327 C D] 2.
If a socially informed perspective is adopted while construing the provision of Section 15(7), then it will be plain that the Controller is armed with facultative power.
He may, or may not strike out the tenant 's defence.
A Judicial discretion has built in self restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power, that, in a court, striking out a 6 party 's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent.
First of all, there must be failure to pay rent which, in the content, indicates willful failure, deliberate default or volitional non performance.
Secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical conse quence but invests a power to overcome intransigence.
Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence.
A last resort cannot be converted into tho first resort a punitive direction of court 326 cannot be used as a booby trap to get the tenant out.
Once this teleological interpretation dawns, the mist of misconception about matter of course invocation of the power to strike out will vanish.
Farewell to the realities of a given case is playing truant with the duty underlying the power.
[327 F H, 328 A B] 3.
The exercise of the power of striking out of the defence under section 15(7) is not imperative whenever the tenant fails to deposit or pay any amount as required by section 15.
The provisions contained in section 15(7) of the Act are directory and not mandatory.
It cannot be disputed that s.15(7) is a penal provision and given to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of non payment or non deposit.
The effect of striking out of the defence under s.15(7) is that the tenant is deprived of the protection given by s.14 and, therefore, the powers under s.15(7) of the Act must be exercised with due circumspection.
Section 15(7) of the Act is not couched in mandatory language.
It uses the word "may".
The difference in the language of Section 15(7) with that of Section 13(5) of the repealed Act is significant and indicates that in the present Act there is a deliberate modification of law in favour of the tenant.
Under Section 15(7) of the Act, it is in the liberal discretion of the Rent Controller, whether or not to strike out the defence.
The Court should be aware of the milieu before exercise of this extreme power.
[328 B D, 329 A B] In the instant case, the tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself.
To trust one 's advocate is not to sin deliberately.
She was innocent but her advocate was innocent.
No party can be punished because her advocate behaved unprofessionally.
The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic ethic of a noble profession.
She did not fail to pay or deposit and, in any view, no case for punitive exercise of discretion has been made out.
The conclusion necessarily follows that the striking out of the defence was not legal and the appellant should have been given an opportunity to contest the claim of the landlord for her eviction.
A sensitized judicial appreciation was missing and unfortunately, the High Court did not closely look at this facet of the issue.
[329E H] V. K. Varma vs Radhey Shyam, A.I.R. 1964 S.C. 1370, referred to.
An order striking out the defence is appealable under s.38.
So this order is appealable.
The reliance on section 25B(8) to negative an appeal is inept because this is not an order under that special section but one under section 15.
Moreover, s.25B(10) preserves the procedure except to the extent contra indicated in s.25B. Negation of a right of appeal follows from s.25B(8) only if the order for recovery is made 'in accordance with the procedure specified in this Section ' (i.e. 25B).
Here the dispossession was not ordered under the special provision in s.25B but under s.15.
Nor can the theory of merger salvage the order because the legality of the eviction order depends on the legality of the order under s.15(7).
Once that order is found illegal what follows upon that cannot be sustained.
[330 A C]
|
Civil Appeals Nos.
848 850 of 1977.
From the Judgment and Order dated 16 7 1976 of the Kerala High Court in W.A. Nos. 910, 194 and 253/75.
AND CIVIL APPEAL Nos.
666 669 of 1978.
From the Judgment and decree dated 8 6 1977 of the Kerala High Court in W.A. Nos.
364 365, 472 and 473 of 1975.
P. Govindan Nair and K. R. Nambiar for the Appellants in CAs.
848/77 and 666 667/78 and for Respondents 2 to 4 in CA 849/77 and 2 3 in CA 850/77.
M. M. Abdul Khader and N. Sudhakaran for the Appellant in CAs.
849 850/77 and Respondent 2 in CA 848/77 and RR1 in CA 666/78, 667/78 and RR 2 in CA 668 669/78.
T. section Krishnamoorthy Iyer, T.P. Sundara Rajan and P. K. Pillai for Respondent No. 1 in 848/77.
T. L. Vishwanath Iyer, and section Balakrishnan for the Respondent No. 1 in CAs.
668 669/78 and RR 2 in CAs.
666 667/78.
The Judgment of the Court was delivered by 292 KRISHNA IYER, J.
Law and development, as yet a Cinderella of our corpus juris, is a burgeoning branch of creative jurisprudence which needs to be nourished with judicious care, by courts in developing countries.
The Town Planning Act, a developmental legislation amended and updated by the Kerala Legislature, was designed to draw up plans and to execute projects for the improvement of the towns and cities of that over crowded State with its populous multitudes uncontrollably spiralling, defying social hygiene and economic engineering.
Although the Act is of 1932 and originally confined to the Travancore portion of the Kerala State, it has received amendatory attention and now applies to the whole of Kerala with beneficial impact upon explosive cities like Cochin.
This legislation, naturally, has made some deviation from the Kerala Land Acquisition Act, 1961, but having received insufficient attention from the draftsman on constitutional provisions, has landed the Act in litigation through a challenge in the High Court where it met with its judicial Waterloo when a Division Bench invalidated Section 31(1) and 34(2A) which were the strategic provisions whose exit from the statute would virtually scotch the whole measure.
The State of Kerala has come up in appeal, although the immediate victim is the Cochin Town Planning Trust.
The schematic projection of the Town Planning Act (the Act, for short) may be a good starting point for the discussion of the sub missions made at the Bar.
The Act, with a prophetic touch, envisions explosive urban developments leading to terrific stresses and strains, human, industrial and societal.
Land is at the base of all development, and demand for the limited space available in the cities may so defile and distort planned progress as to give future shock unless scientific social engineering takes hold of the situation.
The State of its specialized agencies must take preemptive action and regulate the process of growth.
The Act fills this need and contemplates the creation of a Town Planning Trust, preparation of town planning schemes, acquisition of lands in this behalf, compensation for betterment by citizens and other miscellaneous provisions, apart from creation of development authorities.
While this is the sweep of the statute, our concern is limited to schemes sanctioned by Section 12, acquisition of lands for such schemes under Section 32, compensation for such compulsory taking under Section 34 and the modifications in the manner of acquisition and the mode of compensation wrought into the Land Acquisition Act by the above provisions of the Town Planning Act.
It is indisputable that the compensation payable and certain other matters connected therewith, differ as between the provisions in this Act and the Land Acquisition Act.
The latter is more beneficial 293 to the owner and the challenge, naturally, has stemmed from this allegedly invidious discrimination.
In two separate cases, two judges upheld the challenge and, on appeal, the High Court affirmed the holdings that the provisions of Sub section 34(1) and 34(2A) were unconstitutional, being violative of Article 14.
Hence these appeals.
We will now proceed to scan the substance of the submissions and the reasoning in the High Court 's judgment.
Counsel for the State, Shri P. Govindan Nair, supported by counsel for the Trust, Shri Abdul Khader, have canvassed the correctness of the reasons which have appealed to the High Court, and some decisions of this Court have been brought to our notice in this connection.
The owners of the lands acquired have been represented before us by Sri T. C. Raghavan who has, in his short submission, supported the judgment under appeal.
One of the appeals has become infructious, because the State, after the High Court invalidated Section 34 of the Act, proceeded under the Land Acquisition Act, acquired the land, paid compensation and took possession thereof, thus completely satisfying the land owner.
Shri T. section Krishnamurthi Iyer, appearing for the owner, pointed out this circumstance and so we dismissed that appeal but mention it here because Shri T. C. Raghavan has relied on this fact in support of one of his arguments, as we will presently disclose.
Before entering into the merits, we may recall the submissions of Shri T. L. Viswanathan, a young lawyer from Kerala, who made us feel that orality, marked by pointed brevity and suasive precision, is more telling than advocacy with counter productive prolixity.
Although the responsible scrutiny that a bench decision of the High Court deserves has been bestowed, we are unable to support the judgment under appeal or the arguments of counsel in support.
The controversy regarding the vires of Sec.
34 revolved round a few points.
Before us, article 14 has loomed large and a submission has been made that by use of the provisions for making schemes under Sec. 8 or Sec.
10 the authority may indefinitely immobilize the owner 's ability to deal with his land since Sec.
15 clamps restrictions, and this is unreasonable.
We agree that it is a hardship for the owner of the land if his ability to deal with his property is either restricted or prevented by a notification, and nothing happens, thereafter, leaving him guessing as to what the State may eventually do.
Indeed, if such a state of suspense continues for unlimited periods, it may be unreasonable restriction on the right to property, although currently the right to pro 294 perty itself has been taken away from Part III.
That apart, we must see whether there is any justifiable classification between common cases of compulsory acquisition under the Land Acquisition Act and the special class of acquisitions covered by the Town Planning Act which may furnish a differentia sufficient to repel the attack of Article 14.
Section 15 of the Act forbids dealings by the owner in many ways, once the publication of a notification is made.
The grievance particularised by Shri Raghavan is that after a draft scheme has been prepared by the municipal council and published, it becomes operational only on the sanction by Government but there is no time limit fixed in Sec.
12 within which Government shall sanction.
Supposing it takes several years for Government to express its approval or disapproval, the owner may suffer.
We regard this grievance as mythical, not real, for more than one reason.
The scheme is for improvement of a town and, therefore, has a sense of urgency implicit in it.
Government is aware of this import and it is fanciful apprehension to imagine that lazy insouciance will make Government slumber over the draft scheme for long years.
Expeditious despatch is writ large on the process and that is an in built guideline in the statute.
At the same time, taking a pragmatic view, no precise time scale can be fixed in the Act because of the myriad factors which are to be considered by Government before granting sanction to a scheme in its original form or after modification.
Section 12 and the other provisions give us some idea of the difficulty of a rigid time frame being written into the statute especially when schemes may be small or big, simple or complex, demanding enquiries or provoking discontent.
The many exercises, the differences of scale, the diverse consequences, the overall implications of developmental schemes and projects and the plurality of considerations, expert techniques and frequent consultations, hearings and other factors, precedent to according sanction are such that the many sided dimension of the sanctioning process makes fixation of rigid time limits by the statute an impractical prescription.
As pointed out earlier, city improvement schemes have facets which mark them out from other land acquisition proposals.
To miss the massive import and specialised nature of improvement schemes is to expose one 's innocence of the dynamics of urban development.
Shri Raghavan fairly pointed out that, in other stages, the Act provides for limitation in time (for example, sec. 33 which fixes a period of three years between the date of notification and the actual acquisition).
Only in one minimal area where time limit may not be workable, it has not been specified.
The statute has left it to Government to deal expeditiously with the scheme and we see sufficient guideline in the Act not to make the gap between the 295 draft scheme and governmental sanction too procrastinatory to be arbitrary.
We need hardly say, that the court is not powerless to quash and grant relief where, arbitrary protraction or mala fide inaction of authorities injures an owner.
An aside: We are surprised at the obsolescent and obscurantist vocabulary surviving in the Town Planning Act because there are many B feudal and incongruous expressions such as 'our Governments and references to a Land Acquisition Act which has already been repealed by the Kerala Land Acquisition Act, 1961.
Modernisation is a process necessary even for the statute book and yet it has not been done, despite opportunity for the legislature, while amending later, to carry out such simple, verbal and yet necessary changes.
Be it remembered that the Town Planning Act did undergo an extensive amendment as late as 1976 when, surely, some of the verbal replacements could easily have been made.
Medievalism lingering in legislations is hardly a tribute to the awareness of our legislators.
Section 12 of the Act provides for publishing the draft schemes so that objections or suggestions may be put forward by affected persons.
The scheme is then passed by the Municipal Council, of course, after considering objections and suggestions.
Thereupon, it is submitted to the Government for sanction and the fact of such submission is also published so that the public may still raise objections or make suggestions to Govt.
which will consider them, make further inquiries, if necessary, and ultimately sanction the scheme with or without modifications or may even refuse sanction or return the scheme to the Council for fresh consideration.
Once the scheme is sanctioned by the Government, it is again published.
Section 12(6) imparts finality to the scheme and this virtually corresponds to the declaration under sec.
6 of the Land Acquisition Act.
Chapter III of the Act is comprehensive and complex because the subject of scheme making demands expert attention and affects community interest.
A Director of Town Planning is appointed who shall be consulted by Municipal Councils in matters of town planning.
Developmental schemes are not sudden creations.
On the other hand, the Municipal Council first decides to prepare a scheme, adopts a draft scheme, if any, made by the owners of the lands, prepares the necessary plan of the lands which is proposed to be included in the scheme and notify its resolution for public information.
A copy of the plan is kept for the inspection of the public.
Since all improvement schemes are matters of public concern, on the passing of a resolution and its notification under sec. 8, a time bound obligation is cast on the Municipal Council by section 9, which reads thus : 296 "section 9: Publication of draft scheme: (1) If the resolution is to make a scheme, municipal council shall, within twelve months from the date of the notification under s.8 or within such further period not exceeding twelve months, as our Government may allow, and after consulting, in the prescribed manner, the owners of lands and buildings in the area affected, prepare and publish a draft scheme.
" It is apparent that improvement schemes cannot hang on indefinitely and an outside limit of 2 years is given for the preparation and publication of draft schemes from the initial resolution to make or adopt the scheme is passed by the Municipal Council.
Government itself may step in and direct the Municipal Council to prepare schemes and sec.
10 empowers it in this behalf.
11 contains detailed provisions regarding the material to be included in the draft scheme.
These are preparatory exercises, and then comes the sanction of the scheme by the Government under Sec. 12.
We indicate the elaborate character of the strategy, stages, contents and character of schemes for improvement and the opportunities for objections and suggestions to the public and the consultation with technical experts and Government, time and again, only to emphasise the complex nature of modern urban development schemes which makes it a different category altogether from the common run of 'public purposes ' for which compulsory acquisition is undertaken by the State.
Conceptwise and strategywise, development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as based on a rational differentia which has a reasonable relation to the end in view viz., improvement of towns and disciplining their development.
Once this basic factor is recognised, the raison detre of a separate legislation for and separate treatment of town planning as a special subject becomes clear.
It was pointed out that under the Kerala Land Acquisition Act, there is a time limit of 2 years written into Section 6 by engrafting a proviso thereto through an amendment of 1968 Act (Act 29 of 1968).
Section 6 deals with a declaration that land is required for a public purpose and the relevant proviso thereto reads: "S.6(i) Proviso : Provided that no declaration in respect of any particular land covered by a notification under sub section (1) of shall be made after the expiry of two years from the date of publication of such notification." An argument was put forward that under the Land Acquisition Act there is thus a protection against unlimited uncertainty for the owners once lands are frozen in the matter of dealing with them by an initial notification.
This protection against protraction and inaction on the part of the State and immobilisation of ownership is absent in the Town Planning Act.
According to Mr. T. C. Raghavan, appearing for some respondents, this makes for arbitrariness and discrimination invalidatory of the relevant provisions of the Town Planning Act.
In our view there is no substance in this submission, having regard to the specialised nature of improvement schemes and the democratic a participation in the process required in such cases.
We repel the submission.
Much argument was addressed on the 'either or ' arbitrariness implicit in section 33 of the Act.
The precise contention is that it is open to the Trust to acquire either under the Kerala Land Acquisition Act or under Chapter VII of the Town Planning Act.
In the latter event, no solatium is payable while under the former statute it is a statutory obligation of the acquiring Govt.
Thus, if an Authority has an option to proceed under one statute or the other and the consequences upon the owner are more onerous or less, such a facultative provision bears the lethal vice of arbitrariness in its bosom and is violative of article 14 and is therefore, void.
Section 32 of the Act is the foundation for this argument and reads thus: 32.
Modification of Land Acquisition Act: Immovable property required for the purpose of town planning scheme shall be deemed to be land needed for a purpose within the meaning of the Land Acquisition Act, XI of 1089, and may be acquired under the said (Act) modified in the manner provided in this chapter.
What is spun out of the words used is that for the purposes of town planning schemes an immovable property "may be acquired under the said Act (The Land Acquisition Act) modified in the manner provided in this Chapter".
Of course, Chapter VII, particularly sub sec.
(1) of section 34 thereof, relates to compensation and does not provide for payment of solatium.
Moreover, it is mentioned that the provisions of sections 14, 22 and 23 (both sides agree, this should be read as Sec. 25) of the Land Acquisition Act shall have no application in the acquisition of property for the purpose of the Town Planning Act.
298 We do not accept the argument that there is a legal option for the authority to acquire either under the Land Acquisition Act or under the Town Planning Act when land is needed for a scheme.
Theoretically, yes, but practically, No. Which sensible statutory functionary, responsible to the Treasury and to the community, will resort to the more expensive process under the Land Acquisition Act as against the specially designed and less costly provision under section 34? Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation on the score of actual alter.
natives or alive options, one more onerous than the other.
In Magan lal 's case, the Court pointed out : "The statute itself is the two classes of cases before us clearly lays down the purpose behind them, that is premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorised persons occupying them.
This is a sufficient guidance for the authorities on whom the power has been conferred.
With such an indication clearly given in the statutes one expects the officers concerned to abail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court.
Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter.
Administrative officers, no less than the courts, do not function in a vacuum.
It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Govt.
property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other.
The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion.
In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal.
It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account.
This is not one of those cases where discrimination is writ large on the face of the statute.
Discrimi 299 nation may be possible but is very improbable.
And if there is discrimination in actual practice this Court is not powerless.
Furthermore, the fact that the Legis lature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorized occupants or Govt.
and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants.
We therefore, find ourselves unable to agree with the majority in the Northern India Caterers ' case.
" The same reasoning applies to the present situation.
The Town Planning Act is a special statute where lands have to be acquired on a large scale and as early and quickly as possible so that schemes may be implemented with promptitude.
What is more, there is a specific and purposeful provision excluding some sections of the Kerala Land Acquisition Act.
In such circumstances, it is incredible that the authority acting under the Act will sabotage Chapter VII, in particular section 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms.
He functions under the Town Planning Act, needs Lands for the schemes under that Act, has provisions for acquisition under that Act.
Then would be, by reckless action, travel beyond that Act and with a view to oblige the private owner betray the public interest and resort to the power under the Land Acquisition Act, disregarding the non obstante provision in Sec.
of the Act? Presumption of perversity cannot be the foundation of unconstitutionality.
Moreover, the expression, used in the context of section 32, clearly (does not bear the meaning attributed to it by the counsel for the respondents.
All that it means is that when immovable property is found necessary for the purpose of a 'scheme ' it may be acquired by the compulsory process written into section 32.
It is, as if there were only one option, not two.
If the scheme is to be implemented, the mode of acquisition shall be under section 32 and the manner of such acquisition is the same under the Land Acquisition Act minus sections 14, 22 and 25 thereof.
A slight reflection makes it clear that the mode prescribed is only one, and so the theory of alternatives one of which being mere onerous than the other, and the consequent inference of arbitrariness, cannot arise.
We overrule that argument.
We must notice, before we part with this point, the argument of Sri Raghavan for the respondents that the existence of alternatives is not theoretical nor chimerical but real, and proof of the pudding is in the eating.
He pointed to one of the appeals in this batch where the proceedings under sec.
34 of the Act were given up, the provision 300 of the Land Acquisition Act used, and full compensation and solatium paid to the owner.
This instance gave flesh and blood to the submission about discrimination.
Shri Khader, for the trust countered this argument by stating that because the High Court struck clown the Act and the land was needed.
the only statute then available to the State was the Land Acquisition Act.
So, the authority was reluctantly constrained to notify and acquire under the Land Acquisition Act.
Had Sec.
34 of the Act been available, this step would not have been taken and absent Sec.
34 the argument of alternatives has no basis.
We agree with this reasoning and repel the submission of arbitrary power to pick and choose.
At worst, a swallow does not make a summer but we must warn that prodigal state action to favour some owner when sec.
34 has been resuscitated will be betrayal of public interest and invalidated as mala fide even at the instance of a concerned citizen.
The legislature cannot be stultified by the suspicious improvidence, or worse, of the Executive.
The more serious submission pressed tersely but clearly, backed by a catena of cases, by Shri Viswanathan merits our consideration.
The argument is shortly this.
As between two owners of property.
the presence of public purpose empowers the State to take the lands of either or both.
But the differential nature of the public purpose does not furnish a rational ground to pay more compensation for one owner and less for another and that impertinence vitiates the present measure.
The purpose may be slum clearance, flood control or housing for workers, but how does the diversity of purposes warrant payment of differential scales or quantum of compensation where no constitutional immunity as in article 31A, or applies? Public purpose sanctions compulsory acquisition, not discriminatory compensation, whether you take A 's land for improvement scheme or irrigation scheme, how can you pay more or less, guided by an irrelevance viz. the particular public purpose? The State must act equally when it takes property unless there is an intelligent and intelligible differentia between two categories of owners having a nexus with the object, namely the scale of compensation.
It is intellectual confusion of constitutional principle to regard classification good for one purpose, as obliteration of differences for unrelated aspects.
This logic is neatly applied in a series af cases of this Court.
It is trite that the test to rebuff article 14 turns of the differentia vis a vis the object of the classification.
In Vajarveu Mudaiar 's case, the Court took the view, (on this aspect the decision is not shown to have been overruled) that where there is no rational relation in the 301 matter of quantum of compensation between one public purpose and another you cannot differentiate between owners.
Whether you acquire for a hospital or university, for slum clearance or housing scheme, compensation cannot vary in the rate or scale or otherwise.
"Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act, out of two adjacent plots belonging to the same individual and of the same quality ' and value, one may be acquired under the Principal and the other under the Amending Act.
From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved.
In Durganath Sharma 's case, a special legislation for acquisition of land for flood control came up for constitutional examination.
We confine ourselves to the differentiation in the rate of compensation based on the accident of the nature of the purpose where the Court struck a similar note.
In the Nagpur Improvement Trust case and in the Om Prakash case, this Court voided the legislation which provided differential compensation based upon the purpose.
In the latter case the Court observed : "There can be no dispute that the Govt. can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition Act, 1894, or under that Act as modified by the Adhiniyam.
If it chooses the first course, then the land owners concerned will be entitled to better compensation including 15% solatium, the potential value of the land etc.
nor will there be any impediment or hurdle such as that enacted by section 372(a) of the Adhiniyam in the way of such land owners, dissatisfied by the Collector 's award, to approach the Court under section 18 of that Act.
It is not necessary to dilate further on this point at this matter stands concluded by this Court 's decision in Nagpur Improvement Trust 's case by the ratio of which we bound.
It will be sufficient to close the discussion by extracting here what Sikri C.J., speaking for the Court in Nagpur Improvement Trust 's case said: "Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60 % of the value and for a Govt.
building at 70 % of the 302 market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other.
article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right.
It seems to us that ordinarily a classification based on the public purpose is not permissible under article 14 for the purpose of determining compensation.
The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation.
Can classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired.
If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14.
" The principle that may be distilled from these rulings and the basics of 'equality ' jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompense.
Is it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good.
We are unable to discern any valid discremen in the Town Planning Act vis a vis the Land Acquisition Act warranting a classification in the matter of denial of solatium.
We uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme.
We are not to be 303 understood to mean that the rate of compensation may not vary or must be uniform in all cases.
We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with article 14.
No such circumstances are present here nor pressed.
Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinction.
The core question now arises.
What is the effect even if we read a discriminatory design in Sec.
34? Is plastic surgery permissible or demolition of the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of section 34 have to be liquidated or severable portions voided? In our opinion, scuttling the section, the course the High Court has chosen, should be the last step.
The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent.
Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment.
Law keeps alive and "operation pull down" is de mode.
Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between section 34 of the Act and section 25 of the Land Acquisition Act vis a vis quantification of compensation is the non payment of solatium in the former case because of the provision in section 34(1) that section 25 of the Land Acquisition Act shall have no application.
Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of section 25 of the Land Acquisition Act from section 34(1) of the Town Planning Act.
The whole of section 34(1) does not have to be struck down.
Once we excise the discriminatory and, therefore, void part in Sec.
34(1) of the Act, equality is restored.
The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act.
What is rendered void by article 13 is only to the extent of the contravention of article 14.
The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.
We hold that the exclusion of Sec.
25 of the Land Acquisition Act from sec.
34 of the Act is unconstitutional but it is severable and we sever it.
The necessary consequence is that section 34(1) will be read omitting the words 'and section 25 ' .
What follows then? Section 32 obligates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec.
25 of the Land Acquisition Act 304 and so, the 'modification ' no longer covers section 25.
It continues to apply to the acquisition of property under the Town Planning Act.
Section 34(2) provides for compensation exactly like section 25(1) of the Land Acquisition Act and, in the light of what we have just decided, section 25(2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per cen tum on such market value in consideration of the compulsory nature of the acquisition.
" The upshot of this litigation thus is that the appeal must be allowed except to the extent that solatium shall be payable as under the Land Acquisition Act.
Since the State has always been willing to pay that component and has repeated that offer even before us right from the beginning, we direct the parties to bear their respective costs.
P.B.R. Appeal allowed.
| IN-Abs | The Cochin Town Planning Act in particular contemplates the creation of a town planning trust, the preparation of town planning schemes (section 12) acquisition of lands in this behalf (section 32) compensation for such compulsory taking (section 34) and modifications in the manner of acquisition and the mode of compensation in the Kerala Land Acquisition Act.
The petitioners ' writ petitions challenging the validity of the Town Planning Act were allowed by the High Court on the ground that the provisions of Section 34(1) and 34(2A) were unconstitutional being violative of article 14 of the Constitution.
In appeal to this Court it was contended that by the use of the provisions for making schemes under section 8 or section 10, the authority may indefinitely immobilize the owner 's ability to deal with his land since section 15 clamps restrictions and this is unreasonable. ^ HELD: 1.
City improvement schemes have facets which mark them out from other land acquisition proposals.
To miss the massive import of the 15 specialised nature of important schemes is to expose one 's innocence of the dynamics of urban development.
The statute has left it to the government to deal expeditiously with the scheme and there are sufficient guidelines in the Act not to make the gap between the draft scheme and governmental sanction too procrastinatory to be arbitrary.
[294 G H] 2.
Section 12(6) imparts finality to The scheme and this corresponds to the declaration under section 6 of the Land Acquisition Act.
A conspectus of the relevant provisions of the Act makes it clear that improvement scheme cannot hang on indefinitely and an outside limit of two years is given for the preparation and publication of draft schemes from the time the initial resolution to make or adopt the scheme is passed by the Municipal Council.
Conceptwise and strategy wise development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as based on rational differentia which has a reasonable relation to the end in view namely improvement of towns and disciplining their development.
[295 F G] 3.
There is no substance in the argument that if the land is acquired under the Town Planning Act no solatium is payable while if the land is acquired under the Land Acquisition Act it is a statutory obligation of the acquiring government to pay solatium.
The Town Planning Act is a special statute where lands have to be acquired on large scale and as early and as quickly as possible so that schemes may be implemented with promptitude.
There is in addition a specific and purposeful provision excluding some sections of the 291 Kerala Land Acquisition Act.
In such circumstances it is incredible that the authority acting under the Act will sabotage chapter VII, in particular section 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms.
[299C D] Maganlal vs Municipal Corporation, [1975] 1 S.C.R. p. 23, referred to.
The amount of compensation payable has no bearing on the distinction whether the lands are acquired for housing or hospital, irrigation schemes or town improvement, school building or police station.
5(a) The exclusion of section 25 of the Land Acquisition Act from section 34 of the Act is unconstitutional.
But it is severable.
[302G] (b) The only discriminatory factor as between section 34 of the Act and section 25 of the Land Acquisition Act vis a vis quantification of compensation is the non payment of solatium in the former case because of the provisions of section 34(1) and that section 25 of the Land Acquisition Act shall have no application.
To achieve the virtue of equality and eliminate the vice of inequality what is needed is the obliteration of section 25 of the Land Acquisition Act from section 34(1) of the Town Planning Act.
The whole of section 34(1) does not have to be struck down.
Once the discriminatory and void part in section 34(1) of the Act is excised equality is restored.
The owner will then be entitled to the same compensation including solatium that he may be eligible under the Land Acquisition Act.
[303E F]
|
Appeal No. 46 of 1950.
Appeal by special leave from a judgment of the High Court of Judicature at Bombay dated 23rd March, 1948, (Chagla C.J. and Tendolkar J.) in Income Tax Reference No. 16 of 1947.
M.C. Setalvad, Attorney General for India (Gopal Singh, with him) for the appellant.
N.C. Chatterjee (B. Sen, with him)for the respondent. 1951.
September 18.
The Judgment of the Court was deliv ered by MAHAJAN J.
The sole controversy in this appeal centres round the point as to whether or not excess profits tax is payable on the sum of Rs. 20,005 received by the respondent from Messrs Parakh & Co. by way of rent for the dyeing plant let out to them during the chargeable accounting period.
The respondent (Sri Lakshmi Silk Mills Ltd.) is a manu facturer of silk cloth, and as a part of its business it installed a plant for dyeing silk yarn.
During the charge able accounting period (1st January, 1943, to 31st December, 1943) owing to difficulty in obtaining silk yarn on account of the war it could make no use of this plant and it re mained idle for some time.
On the 20th August, 1943, it was let out to Messrs E. Parakh & Co. on a rent of Rs. 4,001 per month.
The Excess Profits Tax Officer by his assessment order dated 11th June, 1945, included the sum of Rs. 20,005 realized as rent for five months, in the profits of the business of the respondent and held that excess profits tax was payable on this amount.
This order was confirmed on appeal by the Appellate Assistant Commissioner and on fur ther appeal by the Income tax Tribunal.
The Tribunal, however, on being asked referred the following question of law to the High Court for its opinion: "Whether in the circumstances of the case, the asses see 's income of Rs. 20,005 is profits from business 3 within the meaning of section 2 (5) of the Excess Profits Tax Act and therefore or otherwise liable to pay excess profits tax ?" The High Court answered the question in the negative.
This is an appeal by special leave from this decision.
It was contended on behalf of the Commissioner before the High Court that the dyeing plant was a commercial asset of the assessee 's business for the purpose of earning profit and if this commercial asset yielded income to him in any particular manner, it was income from the assessee 's busi ness for the purpose of the Excess Profits Tax Act.
It was said that it was immaterial whether a commercial asset yields income by use of the assessee himself or its being used by someone else.
This contention was disposed of by the learned Chief Justice in these words : "Mr. Joshi seems to be right but with this qualification that the commercial asset must be at the time it was let out in a condition to be used as a commercial asset by the assessee.
If it has ceased to be a commercial asset, if its use as a commercial asset has been discontinued, then if the assessee lets it out, he is not putting to use something which is a commercial asset at the time.
"Now, on the facts found by the Tribunal, it is clear that when the assessee let out this dyeing plant, it had remained idle for some time.
He could not obtain silk yarn on account of the war and therefore it was not possible to make use of it as a commercial asset as far as the assessee himself was concerned and it was only for that reason that he let it out to Messrs E. Parakh & Co. I can understand the principle for which Mr. Joshi is contending that it makes no difference what an assessee does with a commercial asset belonging to him.
He may use it as he likes.
So long as it yields income it is the income of his business.
Var ious cases have been cited at the Bar and I think that those cases though apparently conflicting are reconcilable if we accept this principle to be the correct principle 4 and apply this ratio as the ratio emerging from these cases and I will state the principle and the ratio again that if an assessee derives income from a commercial asset which is capable at the time of being used as a commercial asset, then it is income from his business, whether he uses that commercial asset himself or lets it out to somebody else to be used.
But if the commercial asset is not capable of being used as such, then its being let out does not result in an income which is the income of the business." Mr. Justice Tendolkar concurred in this view and ob served as follows : "The ratio of all these cases to my mind is that if there is a commercial asset which is capable of being worked by the assessee himself for the purpose of earning profits and the assessee instead of doing so, either voluntarily allows someone else to use it on payment of a certain sum or is compelled by law to allow it to be used in such manner, then what he receives is income from business.
But if the commercial asset has ceased to be a commercial asset in the hands of the assessee and thereafter he gets what he can out of it by letting it out to be used by others, then the rent he receives is not income from any business that he carries on.
" The learned Attorney General pointed out that the nature of a commercial asset is not changed because a par ticular person is unable to use it.
The inability of the assessee to make use of it in certain circumstances does not in any way ' affect the nature of the asset and cause an infirmity in the asset itself.
It was contended that when the dyeing plant became idle for a short time during the chargeable accounting period it did not cease to be a com mercial asset of the respondent for it had no other busi ness; that all the assets of the respondent including the dyeing plant were the assets of the business, that whatever income was derived by the use of these assets including the income that an asset fetched by its being let out was the business income of the assessee, and that there was no warrant 5 in law for the proposition that a commercial asset which yields income must be used as an asset by the respondent himself before its income becomes chargeable to tax.
The learned counsel for the respondent urged that as soon as the assessee found difficulty in obtaining yarn the dyeing plant became redundant for its business and ceased to be an asset of its business and any income derived from the rent by letting out this asset was income received by the assessee from other sources and therefore was not charge able to excess profits tax.
In our opinion, the contention raised by the learned Attorney General is sound.
The High Court was in error in engrafting a proviso on the rule deduced by it from the authorities considered by it, to the effect that a commer cial asset of a business concern which yields income must at the time it was let out be in a condition to be used as a commercial asset by the assessee himself.
We respectfully concur in the opinion of the learned Chief Justice that if the commercial asset is not capable of being used as such, then its being let out to others does not result in an income which is the income of the business, but we cannot accept the view that an asset which was acquired and used for the purpose of the business ceased to be a commercial asset of that business as soon as it was temporarily put out of use or let out to another person for use in his business or trade.
The yield of income by a commercial asset is the profit of the business irrespective of the manner in which.
that asset is exploited by the owner of the business.
He is entitled to exploit it to his best advantage and he may do so either by using it himself personally or by letting it out to somebody else.
Suppose, for instance, in a manufac turing concern the use of its plant and machinery can advan tageously be made owing to paucity of raw materials only for six hours in a working day, and in order to get the best yield out of it, another person who has got the requisite raw materials is allowed to use it as a licensee on payment of certain 6 consideration for three hours; can it be said in such a situation with any justification that ' the amount realized from the licensee is not a part of the business income of the licensor.
In this case the company was incorporated purely as a manufacturing concern with the object of making profit.
It installed plant and machinery for the purpose of its business, and it was open to it if at any time it found that any part of its plant "for the time being" could not be advantageously employed for earning profit by the company itself, to earn profit by leasing it to somebody else.
It is difficult to hold that the income thus earned by the commer cial asset is not income from the business of the company that has been solely incorporated for the purpose of doing business and earning profits.
There is no material whatever for taking the view that the assessee company was incorpo rated with any other object than of carrying on business or trade.
Owning properties and letting them was not a purpose for which it was formed and that being so, the disputed income cannot be said to fall under any section of the Indian Income tax Act other than section 10.
Cases of undertakings of this nature stand on an entirely different footing and are distinguishable from cases of individuals or companies acquiring lands or buildings and making income by letting them on hire.
These latter cases may legitimately fall under the specific provisions of section 9 or section 12, though the High Courts in this country are by no means unanimous on this subject; but for the purpose of this case it is unnecessary to resolve that conflict.
It may be observed that no general principle can be laid down which is applicable to all cases, and each case has to be decided on its own circumstances.
Decisions of the Eng lish courts given under the Finance Acts, the scheme of which is different from the Indian Income tax statutes, are not always very helpful in dealing with matters arising under the Indian law and analogies and inferences drawn from those decisions are at times misleading.
We, however, are in respectful agreement with the observations of Lord 7 President Strathclyde in Sutherland vs The Commissioners of Inland Revenue(1) that if a commercial asset is susceptible of being put to a variety of different uses in which gain might be acquired, whichever of these uses it was put to by the appellant, the profit earned was a user of the asset of the same business.
A mere substituted use of the commercial asset does not change or alter the nature of that asset.
Whatever the commercial asset produces is income of the business of which it is an asset, the process by which the asset makes the income being immaterial.
Mr. Chatterjee for the respondent stressed the point that as the dyeing plant in the present case could not be made use of by the assessee in its manufacturing business owing to the non availability of yarn, it ceased to be a commercial asset of the business of the assessee and became redundant to that business and that being so, any income earned by this asset which had ceased to be a commercial asset was not an income of the business but must be held to have been derived from a source other than business and fell within the ambit of section 12 of the Indian Income tax Act, and on this income excess profits tax was not payable.
He contended that the facts of this case were analogous to the case of Inland Revenue Commissioners vs lies(2) and it should be similarly decided.
In that case the taxpayer carried on the business of sand and gravel merchant on certain land and at the same time he granted licences to three firms to enter his land and win gravel for themselves in return for which he received from them a royalty for each cubic yard of gravel taken away.
It was held that the royalties were not part of the profits of the business because, in granting the licences, the taxpayer was exploit ing his rights of ownership in the land and was not carrying on his business of a sand and gravel merchant.
The income was held taxable as an income from an investment and did not fall under Schedule D which concerns profits earned from a trade.
Mr. Chatterjee also laid emphasis on the observations of Lord (1) (2) [1947] 1 A.E.R. 798.
8 Greene M.R. in Croft vs Sywell Aerodrome Ltd. (1), wherein the learned Master of the Rolls observed as fol lows: "I cannot myself see that a person who leases the land to others, or grants licences to others to come upon it, is doing anything more than exploiting his own rights of property, even if the tenant or licensee is, by the terms of the lease or licence, entitled himself to carry on a trade on the land.
" It was urged that what the assessee was doing in this case was exploiting his rights of property by letting the dyeing plant to other persons precisely in the same manner as the owner of land in the case cited above was exploiting his own rights to property by granting a licence to another to come on his land.
The argument, in our opinion, though attractive, is fallacious.
The analogy between the case of land and of a dyeing plant for the purpose of taxing stat utes is inappropriate.
The distinction becomes apparent from the following passage which occurs in Atkinson J. 's judgment in I les 's case(2) : "Then it was suggested by counsel for the Crown that the case was like the Desoutter case(3), where it was held that, if you make use of a patent in your business and also receive royalties from the use of the patent by others licensed to use it, those royalties cannot be regarded as receipts from an investment.
In other words, the door has to be either open or shut.
A patent is either an investment or it is not.
The suggestion was that freehold land is in the same position, and if you carry on business on part of it, whatever you do with the rest by way of licensing or letting cannot be regarded as producing income from investment.
That, however, is dead in the teeth of the judgment in the Broadway Car Co. case(4).
The same argument was tried there, but Tucker L.J. said he thought the Desoutter case(3) had very little to do with it, as there was a great difference between land (1) (3) (2) (4) 9 and a patent, and he did not think the Desoutter case(1) threw any light on the matter .
A patent is quite different from freehold land." These observations appositely apply to the case of a company incorporated for the purpose of doing business and earning profit by the process of manufacture.
Letting out a part of its machinery in a certain situation in order to make the business advantageous as a whole does not alter the nature of the income.
The case of an owner of land letting out his land and carrying on exploitation of part of that land by selling gravel out of it, as at present advised, in our opinion, would fall under section 9 of the Indian In come tax Act, as income earned, no matter by whatever meth od, from land, and specifically dealt with by that section.
The observations therefore made in I les 's case(2) can have no apposite application to the case of a manufacturing concern letting out a part of its machinery temporarily which it cannot advantageously use itself.
Mr. Chatterjee also laid stress on the decision of the Court of Appeal in Inland Revenue Commissioners vs Broadway Car Co. Ltd.(3).
In this case the company carried on the business of motor car agents and repairers on land held on lease from 1935 to 1956 at an annual rent of pound 750.
By 1940 the company 's business had dwindled under war condi tions to such an extent that no more than one third of the land was required.
In those circumstances the remainder was sublet for fourteen years at an annual rent of pound 1,150.
The general commissioners of income tax decided that the difference of pound 400 between the outgoing of pound 750 for the land retained and the incoming of pound 1,150 for the land disposed of was "income received from an invest ment," and, the business not being one within the special categories mentioned in the Finance Act, 1939, that pound 400 was not taxable.
It was held that the word "investment" must be construed in the ordinary, popular sense of the word as used by businessmen and not as a (1) [1946] 1 A.E.R.58.
(3) [1946] 2 A.E.R. 609.
(2) 2 10 term of art having a defined or technical meaning and that it was impossible to say that the commissioners had erred in law in coming to the conclusion that the transaction result ed in an investment.
Scott L.J. in delivering his judgment laid emphasis on the point that after the business of the company had dwindled, it partitioned part of the land from the rest and sublet it by installing a heating apparatus for the sub lessee.
It was found that war conditions had reduced the company 's business to very small proportions and they cut their loss by going out of business in respect of the major part of their land and put it out of their power for 14 years to resume business there.
In this situation it was observed that in that case they were dealing with part of the property of the company which had come redundant and was sublet purely to produce income a transaction.
quite apart from the ordinary business activities of the company.
It was pointed out that the question whether a particular source of income was income or not must be decided, as it could be, according to ordinary commonsense principles.
The short question to decide in this case is whether on the facts found, it could be said reasonably that the dyeing plant had become redundant for its business as a silk manu facturing concern, simply by the circumstance that for the time being it could not be used by it personally for the purpose of dyeing silk yarn owing to the non availability of yarn.
It is difficult to conceive that the company would not have immediately started dyeing yarn as soon as it became available.
Instead of dyeing yarn, another person was allowed to dye jute (we are told), the assessee company making income out of its use as a commercial asset.
In this situation it is not possible to hold that the income thus earned was not a part of the income of the business and was not earned for the business by its commercial asset or that this commercial asset had become redundant to the company 's business of manufacture of silk.
The analogy of Broadway Car Co. Ltd. (1) therefore does not hold good for the decision of the present matter, (1) 11 We are therefore of the opinion that it was a part of the normal activities of the assessee 's business to earn money by making use of its machinery by either employing it in its own manufacturing concern or temporarily letting it to others for making profit for that business when for the time being it could not itself run it.
The High Court therefore was in error in holding that the dyeing plant had ceased to be a commercial asset of the assessee and the income earned by it and received from the lessee, Messrs Parakh & Co., was not chargeable to excess profits tax.
The result therefore is that we hold that the answer returned by the High Court to the question referred to it by the Tribu nal was wrong and that the correct answer to the question would be in the affirmative and not in the negative.
The appeal is allowed, but in the circumstances of the case we make no order as to costs.
We have not thought it necessary to refer to all the cases cited at the Bar as none of them really is in point on the short question that we were called upon to decide and analogies drawn from them would not be helpful in arriving at our decision.
Appeal allowed.
Agent for the appellant.
P.A. Mehta.
| IN-Abs | The respondent, a company formed for the purpose of manufacturing silk cloth, installed a plant for dyeing silk yarn as a part of its Business.
During the chargeable accounting period (last January, 1943, to 31st December, 1943) owing to difficulty in obtaining silk yarn on account of the war, it could make no use of this plant and it re mained idle for some time.
In August, 1943, the plant was let out to another company on a monthly rent.
The question being whether the income received by the respondent company in the year 1948 by way of rent of this plant was income from business and assessable to excess profits tax, the High Court of Bombay held that, as the assessee was not able to use the plant as a commercial asset, it had ceased to be a commercial asset in the assessee 's hands and the rent re ceived was not income from business.
On appeal: Held, that an asset which was acquired and used for the purpose of the business by a company formed for carrying on business and earning profits, does not cease to be a commer cial asset of that business as soon as it is temporarily put out of use or let out to another person for use in his business or trade; the income from the asset would be profit of the business irrespective of the manner in which that asset is exploited by the owner, and the rent in question was therefore income from business and assessable to excess profits tax.
No general principle, however, can be laid down which is applicable to all cases.
Each ease has to be decid ed on its own circumstances.
Sutherland vs Commissioners of Inland Revenue relied on.
Inland Revenue Commissioners vs lies [1947] 1 A.E.R. 798, Croft vs Sywell Aerodrome Co., Ltd. [1942] 1 A.E.R. 110, Inland Revenue Commissioners vs Broadway Car Co., Ltd. [1946] 2A.E.R. 609 distinguished.
Judgment of the Bombay High Court reversed.
|
civil Appeal No. 353 of 1955.
On appeal by special leave from the judgment and order dated the 22nd August 1955 of the Labour Appellate Tribunal of India at Lucknow in Misc.
Case No. 111 C 650 of 1954.
Veda Vyas, (section K. Kapur and N. H. Hingorani, with him) for the appellant.
J. N. Bannerji, (P. C. Agarwalla, with him) for the respondent.
561 1956.
May 8.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant is a company registered under the Indian Companies Act, and owns a factory called Modi Oil Mills in the district of Meerut.
The respondents are workmen employed in the Mills.
The business of the Mills consists in the manufacture of oils and paints.
On 12 7 1954 the management put up the following notice: "Notice is hereby given that due to non availability of groundnut seed and neem seed at the parity with the ruling prices of the groundnut oil and neem oil, the Management is reluctantly compelled to close the Groundnut Crushing Section and Neem Section till the next groundnut season and thus the workers in the attached list are surplus and their services are laid off with effect from 14th July, 1954.
Workers, thus affected, shall be paid compensation according to Industrial Disputes (Amendment) Act, 1953, subject to conditions laid therein.
It is further notified that the time of the attendance as provided in Section 25(D) and (E) shall be 10 a.m. for all the laid off workers".
Pursuant to this notice, 142 workmen mentioned therein, being the respondents in this appeal, were laid off from the 14th July 1954.
On 26 7 1954 the workmen acting through their Union sent a notice to the management demanding full wages for the period of lay off on the ground that it was unjustified and illegal.
The management denied these alle gations, and.
refused the demand.
This being an industrial dispute as defined in section 2(k) of the Industrial Disputes Act XIV of 1947, in the ordinary course, proceedings would have been taken with reference thereto under the provisions of that Act.
But there was at that time another industrial dispute between the parties pending final adjudication.
That dispute had been referred under section 10 of the Industrial Disputes Act for adjudication to the Regional Conciliation Officer, Meerut.
He had pro nounced his award, and against that, both the parties 562 had preferred appeals to the Labour Appellate Tribunal, and they were pending at the date of the, notice.
The Industrial Disputes (Appellate Tribunal) Act XLVIII of 1950, hereinafter referred to as the Act, contains special provisions with reference to certain disputes which might arise between parties, when there is already pending adjudication between them another industrial dispute.
They are sections 22 and 23, which are as follows: "22.
During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act no employer shall (a)alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or (b)discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission ' in writing of the Appellate Tribunal.
Where an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly" '.
On 24 8 1954 the respondents filed an application before the Labour Appellate Tribunal under section 23 of the Act.
Therein, they alleged that the lay off was not bona fide, because the ground given therefor, namely, non availability of groundnut and neem seeds at parity with ruling prices was not true; that further in view of the pendency before the Labour Appellate Tribunal of an industrial dispute between the parties, the lay .off was in contravention of section 22(a) of the Act, and they accordingly prayed 563 that they might be awarded by way of compensation full wages for the entire period of the lay off.
The appellant contested the claim.
It contended that the non availability of groundnut and neem seeds as ,mentioned in the notice was true, and that the lay off was bonafide.
It also claimed that section 22(a ) of the Act had no application to the dispute, as the notice distinctly stated that the workmen would be paid compensation as provided in section 25 C of the Industrial Disputes Act as amended by Act XLIII of 1953.
It also contended that under that section compensation was payable only for the first 45 days at the rate mentioned in the body of the section and not for any period subsequent thereto.
The Tribunal held that the lay off was justified.
It further held on a construction of section 25 C that the workmen were entitled to half the basic wages and dearness allowance not merely for the first 45 days but for the entire period, and that as the appellant did "not observe them provisions 'of that section", there was an alteration of the conditions of service within section 22(a) of the Act.
It accordingly awarded compensation for the whole of the period at 50 per cent.
of the basic wages and dearness allowance.
Against this decision, the management has preferred this appeal by special leave.
On behal of the appellant, Sri Veda Vyas contended firstly, that on its finding that the lay off was justified, the only order which the Tribunal could have passed was one of dismissal of the petition filed by the respondents and that the award of compeneation was in consequence, without jurisdiction; and secondly, that on a true construction of section 25 C of the industrial Disputes Act, the workmen were entitled to compensation only for a period of 45 days as provided in proviso (a) to section 25 C.
We are of opinion that both these contentions are well founded.
On the first question, the jurisdiction of the Tribunal to grant relief under section 23 of the Act arises only if it is made out that there was contravention of section 22 by the management.
The respondents ,understood this position quite correctly, and with 564 view to bring themselves within section 23, they alleged that the lay off was not bona. ' fide, inasmuch as, in fact, groundnut and neem seeds were available.
This contention rests on the supposition that the conditions under which workmen could be laid off are conditions as to their service, 'and that when the employer lays off workmen without proper grounds therefor, it is a violation of the conditions of service within section 22(a) of the Act.
There was some argument before ' us whether lay off, whether justifiable or otherwise, could be brought within section 22(a) of the 'Act as amounting to breach of the conditions of service.
On the one hand, the argument was that the expression "conditions of service" would include only such conditions as would operate when the workmen were actually in service ,such as the quantum of wages, hours of work, provision for leave and so forth, and that when there was a lay off, these conditions could by their very nature have no application, and that if the lay off 'was unjustified, that would give the workmen a right to take proceedings under the 'provisions of the Industrial Disputes Act, but that they could make no claim under section 23 as for a breach of the provisions of section 22(a).
The contention on the other side, was that the workmen and the management ,should be deemed to have agreed that there would be lay off only for good and proper reasons and under conditions permitted by law, and that if those conditions were not satisfied, the lay off would be an alteration of the conditions of service within section 22(a).
The question is one of some importance, but it is unnecessary to express any opinion on it, as counsel for the appellant conceded after some argu ment that conditions under which the workmen could be laid off would be conditions of service.
On this footing, he contended that as the lay off *as, in fact, justified, there Was no breach of those conditions, and that, in consequence, section 22(a) of the Act had no application.
On behalf of the respondents, it is argued that the lay off must, by its very nature, be temporary and of short duration, and that if it is for 565 a long or indefinite period as in the present case, it could not be said to be a proper lay off such as could be deemed to have been agreed to by the workmen, and that section 22(a) of the Act would, therefore, be applicable.
It is common ground that there are no statutory rules prescribing the conditions under which there could be a lay off.
If there had been, they would operate as conditions of service between the parties, and then the question would simply have been whether there had been a compliance with them.
Under the provisions of the Industrial Employment (Standing Orders) Act XX of 1946, certain Standing Orders had been framed with reference to this matter.
Counsel on both sides state that after the enactment of the Industrial Disputes (Amendment) Act XLIII of 1953, they are no longer in force, and that there are no statutory provisions applicable to the present dispute.
We must, therefore, decide the question on the footing that the only condition which the parties might be taken to have agreed to is that the lay off should be for adequate grounds and for a reasonable period.
On this question, there is a clear finding in favour of the appellant.
The Tribunal has found that groundnut and neem seeds were not available at parity prices, and that for that reason, the work had to be stopped.
It is not likely that businessmen would cut their profits to spite the workmen.
The period of the lay off was expressed to be until the next groundnut season and we have been told that the season for groundnut begins sometime in November December.
In fact, all the respondents have been reemployed in relays from September onwards, and by the first week of December all of them had been absorbed.
On the finding of the Tribunal that the lay off was justified, it follows that the application of the respondents under section 23 of the Act was liable to be dismissed on the ground that there had been no contravention of section 22(a).
But., notwithstanding this finding, the Tribunal went on to hold that the application under section 23 of the Act was maintainable.
To appreciate the 566 reasoning 'behind this decision, it is necessary to refer to section 25 C of the Industrial Disputes Act, which runs as follows: "Right of workmen laid off for compensation: Whenever a workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid off, he shall be paid by the employer for all days during which he is so laid off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent.
of the total of the basic wages and dearness allowance that would have been payable to him bad he not been so laid off: Provided that (a)the compensation payable to a workman during any period of twelve months shall not be for more than forty five days except in the case specified in clause (b); (b)if during any period of twelve months, a workman has been paid compensation for forty five days and during the same period of twelve months he is again laid off for further continuous periods of more than one week at a time, he shall, unless there is any agreement to the contrary between him and the employer, be paid for all the days ' during such subsequent periods of lay off compensation at the rate specified in this section".
The appellant does not dispute the right of the respondents to compensation, and, in fact, they were informed by the very notice dated 12 7 1954 under which they were laid off, that compensation would be paid to them in accordance with section 25 C.
It is as regards the quantum of compensation payable under that section that the parties are disagreed.
It will be remembered that the lay off commenced on 14 7 1954 and was to continue until the next groundnut season, and that the workers were actually absorbed in batches from September, and that by the first week of December, they had all of them been employed.
There was thus one continuous lay off 567 for periods varying from 57 to 121 days.
The contention of the appellant is that, on these facts, the workmen were entitled to compensation only in accordance with proviso (a) to section 25 C, and that they would therefore be entitled to 50 per cent.
of the basic wages and dearness allowance for the first 45 days and for the rest of the period, no compensation was payable.
The respondents agree that proviso (a) to section 25 C applies to the first period of 45 days; but they contend that for the remaining period of the lay off, the governing provision is proviso (b) to sec tion 25 C, and that under that proviso, they would ,be entitled to compensation as provided in the body of the section, i.e. 50 per cent.
of the basic wages and dearness allowance, for the remaining period also.
This contention was accepted by the Tribunal, and holding that the compensation awarded by the appellant was not in accordance with section 25 C, it decided, as already mentioned, that there was an alteration of the conditions of service, and accordingly awarded compensation under section 23 of the Act.
It is contended for the appellant that the construction which the Tribunal has put on section 25 C is erroneous, and that the amount of compensation offered by the appellant was the correct amount payable under that section.
As already stated, there is no dispute that the compensation payable for the first 45 days has to be determined in accordance with proviso (a) to section 25 C.
The dispute is only as to whether for the rest of the period of lay off the workmen are entitled to compensation under proviso (b) to section 25 C. That proviso would apply only if the workmen had been paid compensation for 45 days, and were again laid off for further periods of more than one week at a time.
On the wording of the section, it is clear that the lay off which falls within proviso (b) to section 25 C must be distinct from that for which compensation had been paid in accordance with proviso (a) to section 25 C and subsequent thereto in point of time.
And as, in the present case, there was one continuous lay off for the entire period, proviso (b) could have no application.
568 Counsel for the respondents contends that though there was only one lay off, it should notionally be split up into two, the first period being the 45 days covered by proviso (a) to the section and the rest of the period, by proviso (b) It is arguable that there could be a second and distinct lay off following the first without a break, as for example, when the management first notifies lay off for a period of 45 days and pays compensation therefor, and again issues a fresh notification at the end of the period declaring a further lay off for a period exceeding 7 days in continuation of the notified lay off, and that that would fall within proviso (b).
But, in the present case, there was only one notification.
, and the period specified therein was up to the next season.
By no straining of the language.
of proviso (b) to section 25 C can such a lay off be brought within its purview.
The respondents rely in support of their contention on the decision in Automobile Products of India Ltd. vs Their Workmen(1).
But that decision gives no effect whatever to the words "again laid off", and moreover, if the construction adopted therein is correct, there would be no need for the provisos (a) and (b), as what would be payable under them, according to the respondents, would become payable under the body of the section itself.
If, as observed in the above decision, this conclusion leads to an anomalous position, it is for the legislature, if it thinks fit, to amend the section and not for the Tribunal to construe it otherwise than what it plainly means.
We are accordingly of opinion that the respondents are entitled to compensation only for the 45 days as provided in proviso (a), and that as the appellant had offered to pay the same by its notice dated 12 7 1954, there was no aIteration of the conditions of service within section 22 of the Act, and that, in consequence, the petition of the respondents was liable to be rejected.
We accordingly allow the appeal, set aside the order of the Tribunal, and dismiss the petition of the respondents.
The parties will bear their own costs.
(1) [19551 1 Labour Law Journal 67.
| IN-Abs | During the pendency of an appeal before the Labour Appellate Tribunal in respect of a prior industrial dispute between the same parties the management laid off certain workmen and offered to pay compensation equal to half the basic wages and dearness allowance for the first 45 days in accordance with the provisions of proviso (a) to section 25 C, Industrial Disputes Act.
The workmen made an application to the Tribunal under section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 alleging that there was a breach of section 22(a) of the same Act, and that the lay off was not bona fide and claimed full wages for the entire period of the lay off as compensation.
The Tribunal held that the lay off was justified but that the workmen were entitled to half the basic wages and dearness allowance not merely for the first 45 days but for the entire period under proviso (b) to section 25 C. Held, that on the finding of the Tribunal that the lay off wag justified the application under section 23 was liable to be dismissed.
Proviso (b) to section 25 C, Industrial Disputes Act, is only applicable in case of a second and distinct lay off and does not apply to a period subsequent to the first 45 days of one continuous lay off.
|
Civil Appeal Nos. 1614, 1652 and 1637 of 1979.
Appeals by Special Leave from the Judgment and order dated S 3 5 1979 of the Allahabad High Court in Civil Misc.
Writ Nos.
4170/71, 4130/71 and 4193/71.
AND PETITIONS FOR SPECIAL LEAVE To APPEAL (CIVIL) Nos.
6246, 6252, 6373 & 8050/79.
From the Judgment and order dated 3 5 1979 of the Allahabad High Court in Civil Misc.
Writ Nos. 4150, 4173, 4793 and 442/71.
F. section Nariman, Bhaskar Gupta, Rajesh Khaitan, Rohington Nariman and P. R. Seethrama for the Appellants in CA 1614/79.
A. K. Sen, Manoj Swarup, Mis Lalita Kohli and section K. Srivastva for the Appellants in CA No. 1652/79 and SLPS.
6146 and 637379.
R. A. Gupta for the Petitioner in SLP No. 6252/79.
N. N. Sharma and N. N. Kacker for the Petitioner in SLP No. 8050/79.
Lal Narain Sinha Att.
in C.A. 1614.
Rishi Ram Adv.
General, U.P. in C.A. 1652.
Raju Ramchandran and o. P. Rana for the Respondents in All the Appeals.
The Judgment of V. R. Krishna Iyer, section Murtaza Fazal Ali and D. A. Desai, JJ. was delivered by Desai, J., R. section Pathak, J. gave a separate opinion on behalf of A. D. Koshal, J. and himself.
DESAI, J. Acquisition of industrial undertakings involved in manufacturing sugar, a commodity satisfying the basic necessity, in larger public interest and the attempt of the owners of the undertakings to thwart the same, paints the familiar landscape in this group of appeals.
As a sequel to the serious problems created by the owners of certain sugar mills in the State of Uttar Pradesh for cane growers and labour employed in sugar mills, having an adverse impact on general economy of the areas where these sugar mills were situated And with a view to ameliorating the situation posing a threat to the economy, 335 the Governor of Uttar Pradesh promulgated an ordinance on July 3, to 1971, styled as U.P. Sugar Undertaking (Acquisition) ordinance.
1971 (13 of 1971) ( 'ordinance ' for short), with a view to transferring and vesting sugar undertakings set out in the Schedule to the ordinance in the U.P. State Sugar Corporation Ltd. ( 'Corporation ' for short), a Government Company within the meaning of section 671 of the .
Subsequently, by U.P. Sugar Undertakings (Acquisition) Act, 1971, (U.P. Act 23 of 1971) ( 'Act ' for short), the ordinance was repealed and was replaced.
Schedule to the Act enumerates 12 sugar undertakings (referred to as 'scheduled undertakings ') and by the operation of section 3, these scheduled undertakings stood transferred to and vested in the Corporation from the appointed day, i.e. July 3, 1971, the date on which the ordinance was issued.
On the promulgation of 7 the ordinance 11 writ petitions were filed in the Allahahad High Court under Article 226 of the Constitution challenging the constitutional validity of the ordinance and when the Act replaced the ordinance effective from August 27, 1971, the writ petitions were amended incorporating the challenge to the Act also.
The ordinance and the Act were challenged in the High Court on the following grounds: (1) The State legislature had no legislative competence to enact it; (2) The Act violated article 31 of the Constitution because the acquisition was not for a public purpose and the compensation proposed in the Act was illusory; (3) The Act was in breach of article 19(1)(f) and (g) of the Constitution; (4) The Act infringed the gurantee of equality enshrined in article 14 of the Constitution.
A Division Bench of the High Court by a common judgment dated May 37 1979, repelled the contentions on behalf of the petitioners and upheld the constitutional validity of the Act.
Hence these appeals by the original petitioners, the owners of the scheduled undertakings.
Mr. F. section Nariman, learned counsel who led on behalf of the appellants, confined his attack to two grounds: (a) U.P. State legislature lacked legislative competence to enact the impugned Act; and (b) compensation awarded for acquisition in violative of article 31(23 as it stood prior to its amendment by the Constitution (Twenty fifth Amendment) Act, 1971, which came into force on April 20, 1972.
Mr. R. A. Gupta who appeared in SLP.
6252/79, canvassed an additional contention that the impugned Act is violative of article 14 inasmuch as those similarly situated and similarly circumstanced sugar under takings have 336 not been acquired and the petitioners ' scheduled undertakings have been singled out for a drastic treatment of take over by way of acquisition.
The main thrust of the attack was that the U.P. Legislature lacked legislative competence to enact the impugned Act.
There were two distinct limbs of this submission which would be examined separately.
The first limb of the submission was that in exercise of legislative power flowing from Entry 52 List I the Parliament made the requisite declaration in section 2 of the Industries Development and Regulation) Act, 1951 ( 'IDR Act ' for short), and in view of placitum 25 of the first schedule to the IDR Act sugar being a declared industry, that industry goes out pf Entry 24 List II, and hence U. P. State legislature was denuded of all legislative power to legislate in respect of sugar industry and as the impugned legislation is in respect of industrial undertaking in sugar industry, the impugned legislation is void on account of legislative incompetence.
The learned Attorney General countered it by saying that the power to acquire property derived from entry 42 in List III is an independent power and the impugned Act being in pith and substance an Act to acquire scheduled undertakings, meaning thereby the properties of the scheduled undertakings, the power of the State legislature to legislate in this behalf is referable to entry 42 and remains intact irrespective of the fact that sugar is a declared industry, control of which is taken over by the Union Government pursuant to the declaration made under section 42 of the IDR Act.
This necessitates an analytical examination of the relevant entries keeping in view legislative perspective and the historical background through which these entries have passed.
Entry 7 in the Union List reads as under: "7.
Industries declared by parliament by law to be necessary for the purpose of defence or for the prosecution of war.
" Entry 32 in the same List reads: "52.
Industries, the control of which by the Union is declared by parliament by law to be expedient in the public interest " Entry 24 in List II (State List) reads as under: "24.
Industries subject to the provisions of entries 7 and 52 of List I." It may be noted here that entry 33 in List I, entry 36 in List II and entry 42 in List III were amended by section 26 of the Constitution (Seventh Amendment Act by which entry 33 of List I and entry 36 of List II 337 were deleted and entry 42 in List III was amended to read as set out hereinabove.
Entry 33 in List I and entry 36 in List II conferred legislative power on the Union and the States respectively for acquisition or requisitioning of property for its own purpose.
Constitution (Seventh Amendment) Act, 1956, which made the aforementioned amendment was designed to clear the ambiguity about the power of acquisition and requisitioning of property being not a power incidental to any of the legislative powers but an independent power by itself.
The object behind the amendment has been thus explained.
"The existence of three entries in the legislative lists (33 of List I, 36 of List II and 42 of List III) relating to the essentially single subject of acquisition and requisitioning of property by the Government gives rise to unnecessary technical difficulties in legislation.
In order to avoid these difficulties and simplify the constitutional position, it is proposed to omit the entries in the Union and State Lists and replace the entry in the concurrent list by a comprehensive entry covering the whole subject" (see Statement of objects and Reasons in respect of Constitution (Seventh Amendment) Act, 1956).
Having set out the historical background, attention may now be turned to the scope and content of legislative power of Union and the States flowing from entry 52 in List I and entry 24 in List II in respect of the topic of 'industry. ' The scope and content of entry 52, List I and entry 24, List II has to be demarcated with precision to avoid a possible confusion likely to emanate from an inter dependence and interaction of the two entries. 'Industry ' as a head of legislation is to be found in entry 24, List II with this limitation that it is subject to the provisions of entries 7 and 52, List I.
The difference in the language in which entries 7 and 52 are couched has a bearing on the interruption of entry 52.
In the former case if a declaration is made by the Parliament that the particular industry is necessary for the purpose of defence or for prosecution of the war, parliament would be exclusively entitled to legislate in respect of that industry to the exclusion of State legislatures because the requisite declaration will have the effect of taking out that industry from entry 24, List II.
A declaration by the parliament by law to assume control over any particular industry in public interest is a sine qua non to clothe Parliament with power under entry 52, List I to legislate in respect of that industry because otherwise industry as a general head of legislation is in the exclusive sphere of State legislative activity pursuant to entry 24, List II.
Distribution of legislative powers as enacted in Part XI and article 246 clearly demarcate the field of legislative activity reserved for Parliament and for State legislatures and also the concur 338 rent list in respect of which both can legislate subject to other provisions of part XI.
Sub article
(3) of article 246 provides that the State legislature has exclusive power to make laws with respect to any of the matters enumerated in List.
II in the Seventh Schedule.
A fortiori, industry being the matter enumerated in List II the State legislature has exclusive power to legislate in respect of it and keeping aside for the time being the words 'subject to the provisions of entries 7 and 52 of List I ', the State legislature alone can legislate in respect of the legislative head 'industry. ' Ipso facto, parliament would not have power to legislate in respect of industry as a legislative head.
Now, entry 52, List I on its own language does not provide a field of legislative activity for the Union Parliament unless and until a declaration is made by parliament by law to assume control over specified industries.
The embargo on the power of Parliament to legislate in respect of industry which is in List II would be lifted once a declaration is made by Parliament by law as envisaged by entry 52, List I.
In the absence of a declaration as envisaged by entry 52, List I, it is incontrovertible that Parliament has no power to legislate on the topic of industry.
Entry 52, List I on its own language does not contemplate a bald declaration for assuming control over specified industries, but the declaration has to be by law to assume control of specified industries in public interest.
The legislation enacted pursuant to the power to legislate acquired by declaration must be for assuming control over the industry and the declaration has to be made by law enacted, of which declaration would be an integral part.
Legislation for assuming control containing the declaration will spell out the limit of control so assumed by the declaration.
Therefore, the degree and extent of control that would be acquired by Parliament pursuant to the declaration would necessarily depend upon the legislation enacted spelling out the degree of control assumed.
A mere declaration unaccompanied by law is incompatible with entry 52, List I. A declaration for assuming control of specific industries coupled with law assuming control is a pre requisite for taking legislative action under entry 52, List I. The declaration and the legislation pursuant to declaration to that extent denude the power of State legislature to legislate under entry 24, List II.
Therefore, the erosion of the power of the State legislature to legislate in respect of declared industry would not occur merely by declaration but by the enactment consequent on the declaration prescribing the extent and scope of control.
When a declaration is made as contemplated by entry 52 List T in respect of any particular industry, it is contended that, that industry as a topic of legislation would be removed from the legislative sphere of the state.
What is the effect of a declaration made in respect of mines and minerals as contemplated by entry 54 has been succinctly laid down by a Constitution Bench of this 339 Court in Baijnath Kedia vs State of Bihar & Ors.
J(1) in the following terms: "Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament.
Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature .
The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State legislature.
If the impugned legislation falls within the ambit of such scope it will be valid, if outside it, then it must be declared invalid " Sugar is a declared industry.
Is it, however, correct to say that once a declaration is made as envisaged by entry 52 List I, that industry as a whole is taken out of entry 24, List II? In respect of an identical entry 54, List I in the passage extracted above it is said that to the extent declaration is made and extent of control laid, that much and that much alone is abstracted from the legislative competence of the State legislature.
It is, therefore, not correct to say that once a declaration is made in respect of an industry that industry as a whole is taken out of entry 24, List II Similarly, in State of Haryana & Anr.
vs Chanan Mal, etc.
while upholding the constitutional validity of the Haryana Minerals (Vesting of Rights) Act, 1973, after noticing the declaration made in section 2 of the Mines & Minerals (Regulation and Development) Act, 1957, ( 'Mines & Minerals Act ' for short), as envisaged by entry 54.
List I it was held: "Moreover, power to acquire for purposes of development and regulation has not been exercised by Act 67 of 1957.
The existence of power of Parliament to legislate on this topic as an incident of legislative power on another subject is one thing.
Its actual exercise is another.
It is difficult to see how the field of acquisition could become occupied by a central Act in the same way as it had been in the West Bengal case even before Parliament legislates to acquire land in a State." These pronouncements demonstrably show that before State legislature is denuded of power to legislate under entry 24, List II in respect of 340 a declared industry, the scope of declaration and consequent control assumed by the Union must be demarcated with precision and then proceed to ascertain whether the impugned legislation trenches upon the excepted field The declaration made in s 2 of IDR Act reads as under: "It is hereby declared that it in expedient in the public interest that the Union should take under its control the industries specified in the First Schedule.
" The contention is that as there are no words of limitation to be found in section 2 in respect of the control assumed by the declaration by the Union, the necessary concomitant of such declaration is that the State legislature is totally denuded of any power to deal with such declared industry.
To buttress this argument reference was made to the declaration made by the Union pursuant to entry 54, List I, as set out in section 2 of the Mines & Minerals Act which reads as under: "It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.
" Absence of the expression "to the extent hereinafter provided" was pressed into service to point out that while in respect of mines ind minerals the Union has assumed control to the extent provided in the Mines Minerals Act, in the case of declared industries the control is absolute, unlimited, unfettered or unabridged and, therefore, everything that would fall within the connotation of the word 'control ' would be within the competence of the Union and to the same extent and degree the State legislature would be denuded of its power to legislate in respect of that industry.
It was said that in respect of declared industries total control is assumed by the Union and, therefore, entry 24, List II on its import must be read industry minus the declared industry because entry 24, List II is subject to entries 7 and 52, List I. Undoubtedly the Union is authorised to assume control in respect of any industry if parliament by law considers it expedient in the public interest.
The declaration has to be made by the Parliament, but the declaration has to be by law not a declaration simpliciter.
The words of limitation on the power to make declaration are 'by law '.
Declaration must be an integral part of law enacted pursuant to declaration.
The declaration in this case is made in an Act enacted to provide for the development and regulation of certain industries.
Therefore, the control was assumed not in abstract but for a specific and avowed object, viz., development 341 and regulation of certain industries.
The industries in respect of which control was assumed for the purpose of their development and regulation have been set out in the Schedule.
This control is to be exercised in the manner provided in the statute, viz., IDR Act.
The declaration for assuming control is to be found in the same Act which provides for the limit of control.
The deducible inference is that Parliament made the declaration for assuming control in respect of declared industries set out in the Schedule to the Act to the extent mentioned in the Act.
It is difficult to accept the submission that section 2 has to be read dehors the Act and not forming part of the Act.
This would be doing violence to the art of legislative draftsmanship.
It is open to Parliament in view of entry 52, List I, to make a declaration in respect of industry or industries to the effect that the Union will assume its control in public interest.
It is not to be some abstract control.
The control has to be concrete and specific and the manner of its exercise has to be laid down in view of the well established proposition that executive authority must have the support of law for its action.
In a country governed by rule of law, if the Union, an instrumentality for the governance of the country, has to exercise control over industries by virtue of a declaration made by Parliament, it must be exercised by law.
Such law must prescribe the extent of control, the manner of its exercise and enforcement and consequence of breach.
There is no such concept as abstract control.
The control has to be concrete and the mode and method of its exercise must be regulated by law.
Now, Parliament made the declaration not in abstract but as part of the IDR Act and the control was in respect of industries specified in the First Schedule appended to the Act itself.
Sections 3 to 30 set out various modes and methodology, procedure and power, to effectuate the control which the Union acquired by virtue of the declaration contained in section 2.
Industry as a legislative head finds its place in entry 24, List II.
The State legislature can be denied legislative power under entry 24 to the extent Parliament makes declaration under entry 52 and by such declaration Parliament acquires power to legislate only in respect of those industries in respect of which declaration is made and to the extent as manifested by legislation incorporating the declaration and no more.
The Act prescribes the extent of control and specified it.
As the declaration trenches upon the State legislative power it has to be construed strictly.
Therefore, even though the Act enacted under entry 54 which is to some extent in pari materia with entry 52 and in a parallel and cognate statute while making the declaration the Parliament did use the further expression "to the extent herein provided" while assuming control, the absence of such words in the declaration in section 2 would not lead to the conclusion that the control assumed was to be something in abstract, total and unfettered and not as per various 342 provisions of the IDR Act.
The lacuna, if any, is made good by hedging the power of making declaration to be made by law.
Legislative intention has to be gathered from the Act as a whole and not by piecemeal examination of its provisions.
It would, therefore, be reasonable to hold that to the extent Union acquired control by virtue of declaration in section 2 of the IDR Act as amended from time to time, the power of the State legislature under entry 24, List II to enact any legislation in respect of declared industry so as to encroach upon the field of control occupied by IDR Act would be taken away.
This is clearly borne out not only by the decision in Baijnath Kedia 's case (supra) where undoubtedly while referring to the control assumed by the Union by a declaration made in section 2 of the Mines & Minerals Act, it was said that to what extent such a declaration would go is for Parliament to determine and this must be commensurate with public interest, and once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament.
It is not merely some abstract control but the extent of the control assumed by the Union by the provisions of IDR Act pursuant to declaration made by Parliament that the State Legislature to that extent, that is, to the extent the provisions of IDR Act occupies this field, is denuded of its power to legislate in respect of such declared industry.
The respondents assert the validity of the impugned legislation contending that upon its true construction and proper ascertainment of its object, it is a legislation for acquisition of scheduled undertakings and the power to acquire by legislation such scheduled undertakings by the State is derived from entry 42, List III.
The controversy, therefore, centers round the question whether the impugned legislation is in respect of a declared industry referable to entry 24 or one for acquition of scheduled undertakings in exercise of the power of acquisition and requisitioning of property derived from entry 42, List III.
Appellants contend that a reference to Objects and Reasons for enacting the impugned legislation would show that the owners of scheduled undertakings had created serious problems for the cane growers and labour which created an adverse impact on the general economy of the areas where these undertakings were situated, the legislation was enacted to acquire the undertaking and pay compensation and also pay cane growers and labour on high priority and to restart undertakings for crushing season.
It was said that these are purely managerial functions discharged by owners of undertakings and if the impugned Act was devised and enacted primarily to assume these managerial functions, the Act would be beyond the legislative competence of the State legislature as it trenches upon the field occupied by IDR Act specifically 343 enacted to empower Union Government to provide effective control over industrial undertakings in declared industry to prevent mismanagement, or to rectify the same by taking over management.
When validity of a legislation is challenged on the ground of want of legislative competence and it becomes necessary to ascertain to which entry in the three lists the legislation is referable to, the Court has evolved the theory of pith and substance.
If in pith and substance a legislation falls within one entry or the other but some portion of the subject matter of the legislation incidentally trenches upon and might enter a field under another List, the Act as a whole would be valid not with standing such incidental trenching.
This is well established by a catena of decisions [see Union of India vs H. section Dhillon,(1) and Kerala State Electricity Board vs Indian Aluminium Co.(2)].
After referring to these decisions in State of Karnataka & Anr.
vs Ranganatha Reddy & Anr.
etc.(3) Untwalia, J. speaking for the Constitution Bench has in terms stated that the pith and substance of the Act has to be looked into and an incidental trespass would not invalidate the law.
The challenge in that case was to the Nationalisation of contract carriages by the Karnataka State, inter alia, on the ground that the statute was invalid as it was a legislation on the subject of interstate trade and commerce.
Repelling this contention the Court unanimously held that in pith and substance the impugned legislation was for acquisition of contract carriages and not an Act which deals with inter State trade and commerce.
To start with, it is necessary first to ascertain in pith and substance to what entry in a particular list the impugned legislation is referable.
If it is referable to entry other than 24, List II, such as entry 42, List III, it would be necessary to precisely ascertain whether it in any way trenches upon the field occupied by the declaration made by Parliament to assume control over sugar industry as manifested by the various provisions of the IDR Act.
Section 3 of the Act provides for vesting of scheduled undertakings from the appointed day in the Corporation.
Section 4 provides for consequences of vesting.
Section 5 makes it obligatory on every person in whose possession or custody or under whose control any property or asset, book of account, register or other document comprised in that undertaking may be, to forthwith deliver the same to the Collector.
Section 7 provides for determination and mode of payment of compensation for acquisition of scheduled undertakings.
Section 8 provides for claims to be satisfied out of compensation payable to the 344 owners of the undertakings.
Section 9 provides for avoidance of certain secured debts consequent upon acquisition.
Section 11 provides for appeal and section 12 provides for constitution of a Tribunal to perform the functions assigned to it by the Act.
Section 13 provides for powers and procedure of the Tribunal.
Section 14 provides for ouster of jurisdiction of civil courts in respect of any dispute arising from the implementation of the Act.
Section 16 confers protection on the employees of the scheduled undertaking.
The rest are only consequential sections.
A comprehensive examination of all the provisions of the Act indisputably shows that in pith and substance the impugned Act is one Act for acquisition of scheduled undertakings and such acquisition by transfer of ownership of the scheduled undertakings to the Corporation would in no way come in conflict with any of the provisions of the IDR Act or would not trench upon any control exercised by the Union under the various provisions of the IDR Act.
In fact the IDR Act, generally speaking, does not deal with the ownership of industrial undertakings in declared industries.
The Act is primarily concerned with development and regulation of the declared industries.
The Central Government has power under sections 18A and 18AA of the IDR Act to assume direct management or control of industrial undertakings in certain cases and even after acquisition of scheduled undertakings under the impugned legislation the power of the Central Government under sections 18A and 18AA would remain intact.
Even section 18FA provides for taking over management or control of a company which is being wound up with the permission of the High Court and in such a situation the authorised person appointed by the Central Government would be deemed to be Official Liquidator under sub section
(4) of section 18FA.
Provision contained in Chapter IIIAC of IDR Act enables Central Govt.
to direct sale of the industrial undertaking under certain circumstances and in the situation as set out in section 18FE(7) to purchase the same.
But these powers can be exercise irrespective of the fact who at the relevant time, the owner of the undertaking is.
The IDR Act is not at all concerned with the ownership of industrial undertakings in declared industries, except to the extent of control over management of the undertaking by the owner.
Owner is defined in section 3(f) in relation to an industrial undertaking, to mean the person who, or the authority which, has the ultimate control over the affairs of the undertaking, and, where the said affairs are entrusted to a manager, managing director or managing agents, such manager, managing director or managing agent shall be deemed to be the owner of the undertaking.
This deeming fiction enacted in respect of the concept of ownership clearly manifest the legislative intention that IDR Act treats that person to be the owner who has the ultimate control over the affairs of the under 345 taking and if that ultimate control is entrusted to even a manager, for the purposes of the IDR Act the manager would be the owner.
This must be so in the very nature of things because the IDR Act is essentially concerned with the control over the management of the industrial undertakings in declared industries.
By the acquisition under the impugned Act and vesting of the scheduled undertakings in the Corporation the scheduled undertakings will never the less be under the control of the Central Government as exercised by the provisions of the IDR Act because the Corporation would be the owner and would be amenable to the authority and jurisdiction of the Central Government as the provisions of the IDR Act would continue to apply to the scheduled undertakings, sugar being a declared industry, and scheduled undertakings are industrial undertakings within the meaning of the IDR Act.
No provision from IDR Act was pointed out to us to show that in implementing or enforcing such a provision the impugned legislation would be an impediment.
Therefore, there is no conflict between the impugned legislation and the control exercised by the Central Government under the provisions of the IDR Act and there is not even a remote encroachment on the field occupied by IDR Act.
The main thrust of the submission was that the power of acquisition under entry 42, List III is not an independent power but it is incidental to the power to legislate in respect of the various topics in various lists and, therefore, when by a declaration made by the parliament enacted in section 2 of the IDR Act the control over declared industry is assumed by the Union, such control will also comprehend the power to acquire and hence the power of the State legislature to enact legislation for acquisition of property of scheduled undertakings would be denuded as that power as an internal element of control would vest in the Union Government.
The focal point of controversy, therefore, is whether the power of acquisition and requisitioning of property under entry 42, List III is an independent power by itself or it is an integral and inseparable element of the power of control over industry.
Constitution amending process bearing on the three relevant entries may be noticed.
Before the Constitution (Seventh Amendment) Act, 1956, which came into force on November 1, 1956, Entry 33 in List I read: "Acquisition or requisitioning of property for the purpose of the Union.
" Similarly, Entry 36 in List II read: "Acquisition or requisitioning of property except for the purpose of the Union subject to the provisions of entry 42 of List III." 346 At that time entry 42 in List III read: "Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given".
By the Constitution (Seventh Amendment) Act, the three entries were repealed.
Entry 33 in List I and entry 36 in List II were deleted and a single comprehensive entry 42 in List III was substituted to read: 'Acquisition and requisitioning of property '.
Accordingly, the power to acquire property could be exercised concurrently by the Union and the States.
Even if prior to the deletion of Entry 33 in List I and entry 36 in List II an argument could possibly have been advanced that as power of acquisition of property was conferred both on Union and the States to be exercised either for the purpose of the Union or for the State it was incidental to any other legislative power flowing from various entries in the three Lists and not an independent power, but since the deletion of entry 33 in List I and entry 36 in List II and substitution of a comprehensive entry in List III, it could hardly be urged with confidence that the power of acquisition and requisitioning of property was incidental to other power.
It is an independent power provided for in a specific entry.
Therefore, both the Union and the State would have power of acquisition and requisitioning of property.
This position is unquestionably established by the majority decision in Rustom Cavasjee Cooper vs Union of India(1) where Shah, J. speaking for the majority of 10 Judges held as under: "power to legislate for acquisition of property is exercisable only under entry 42 of List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists.
" In reaching this conclusion reliance was placed on Rajamundry Electric Supply Corporation Ltd. vs State of Andhra Pradesh.(2) It was, however, urged that the proposition culled out from Rajamundry Electric Supply Corporation case by Shah, J. in R. C. Cooper 's(1) case is not borne out by the observation in the first mentioned case.
In Rajamundry Electric Supply Corporation(2) case the challenge was to the Madras Electric Supply Undertakings (Acquisition) Act, 1949, on the ground that the Madras legislature was not competent to enact the legislation because at the relevant time there was no entry in the Government of India Act, 1935, relating to compulsory acquisition of any commercial or industrial undertaking.
This challenge failed in the High Court 347 but on appeal the challenge was accepted by a Constitution Bench of this Court.
Now, it must be remembered that the impugned legislation in that case was a pre Constitution legislation then governed by the Government of India Act, 1935.
The challenge was that the State legislature had no power to enact a legislation for acquisition of an electrical undertaking.
On behalf of the State the Act was sought to be sustained on the ground that the Act was in pith and substance a law with respect to electricity under entry 31 of the Concurrent List and, therefore, the State legislature was competent to enact the same.
After scrutinising the Act this Court came to the conclusion that in pith and substance the Act was one to provide for acquisition of electrical undertaking and, therefore the State legislature lacked competence to enact the same.
Now, in that case the Advocate General of Madras in his effort to save the impugned legislation advanced an argument before the Constitution Bench that: 'There was implicit in every entry in the legislative lists in the Seventh Schedule to the Government of India Act, 1935, an inherent power to make a law with respect to a matter ancillary or incidental to the subject matter of each entry. ' His further argument was that each entry in the list carried with it an inherent power to provide for the compulsory acquisition of any property, land or any commercial or industrial undertaking, while making a law under such entry.
This argument was in terms repelled relying upon an earlier decision of the Constitution Bench in the State of Bihar vs Maharajadhiraja Sir Kameshwar Singh(1): Repelling this contention of the Advocate General of Madras would mean that the power of acquisition of property is not ancillary or incidental to the subject matter of each entry but in substance it is an independent power by itself.
This also becomes clear from Maharajadhiraja Sir Kameshwar Singh 's case (supra) wherein Das, J. in his concurring judgment repelled the argument of the learned Attorney General appearing for the State contending that the Bihar Land Reforms Act was a law made with respect to matters mentioned in entry 18, List II and not in entry 36, List II.
Entry 18 in List II read: 'Land and Land tenures, etc. ' and it was contended that the impugned legislation was on the subject of land and tenures and would cover acquisition of land also.
Negativing this contention it was held that in that event entry 36 in List II would become redundant.
The pertinent observation is as under: "In my opinion, to give a meaning and content to each of the two legislative heads under entry 18 and entry 36 in List II the former should be read as a legislative category or head comprising land and land tenures and all matters 348 connected therewith other than acquisition of land which should be read as covered by entry 36 in List II.
" It thus clearly transpires that the observation in Cooper 's case supra extracted above that power to legislate for acquisition of property is exercisable only under entry 42 of List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three Lists, is borne out from Rajamundary Electric Supply Corporation case and Maharajadhiraja Sir Kameshwar Singh 's cases (supra).
It was, however, urged that this proposition runs counter to the decision of a Constitution Bench of six judges in State of West Bengal vs Union of India.
(1) In that case the State of West Bengal filed a suit against the Union of India challenging the constitutional validity of the Coal Bearing Areas (Acquisition and Development) Act, 1957, on the ground that the Act to the extent it applied to the lands vested in or owned by the State was beyond legislative competence of Parliament.
Power to acquire coal bearing land owned or possessed by the State of West Bengal was amongst others claimed as an integral element of control acquired by the Union pursuant to a declaration made in section 2 of the IDR Act and Mines and Minerals Act enacted in exercise of the legislative power under entries 52 and 54 respectively as coal was both a declared industry and a specified mineral.
This contention was partly accepted to repel the contention that the Union has no power to acquire the property vested in the State since the State itself is also a sovereign authority.
The contention that the property of State cannot be acquired by the Union under entry 42 of List III was repelled.
In reaching this conclusion, another contention was rejected which was also advanced before us.
viz., that if power of acquisition is treated as an independent power both of the Union and the State and could be exercised by the Union and the State with respect to the same property it would lead to such a confusion that there would be no end to it.
A picture of fearful constitutional impasse was drawn urging that the State may acquire property of an Industrial undertaking of a declared industry in exercise of the power under entry 42, List III, and the Union may exercise the same power after control is acquired pursuant to declaration made as envisaged in entry 52 in respect of an industry and this merry go round needs to be averted by harmonious construction and reconciliation of power between the Union and the States.
Such a situation is beyond the realm of practical possi 349 bility.
His wild apprehension stands so effectively answered by West Bengal case (supra) that we cannot improve upon it.
Pertinent observation may be extracted: "Power to acquire or requisition property may since the amendment, be exercised concurrently by the Union and the States.
But on that account conflicting exercise of the power cannot be envisaged.
Article 31(2) which deals with acquisition of all property requires two conditions to be fulfilled: (1) acquisition or requisitioning must be for a public purpose, (2) the law under which the property is acquired or requisitioned must provide for payment of compensation either fixed thereby, or on principles specified thereby.
By cl.
(3) of article 31 no such law as is referred to in cl.
(2) made by the Legislature of a State shall have efficacy unless such law has been reserved for the consideration of the President and has received his assent.
As the President exercises his authority with the advice of the Union Ministry, conflict by the effective exercise of power of acquisition in respect of the same subject matter simultaneously by the Union, and the State, or by the State following upon legislation by the Union cannot in practice be envisaged even as a possibility.
Article 254 also negatives the possibility of such conflicting legislation.
By cl.
(1) of that Article if a law made by the legislature of a State is repugnant to any provision of a law competently made by Parliament, the State law is, subject to cl.
(2) void, clause (2) recognizes limited validity of a State law on matters in the Concurrent List if that law is repugnant to an existing or earlier law made by Parliament, only if such law has been reserved for the consideration of the President, and has received his assent.
By the proviso authority is reserved to the Parliament to repeal a law having even this limited validity.
Assent of the President to State legislation intended to nullify a law enacted by Parliament for acquisition of State property for the purposes of the Union lies outside the realm of practical possibility.
" Therefore, the contention that power of acquisition or requisitioning of property in entry 42, List III, if held to be an independent power wholly falling outside the control assumed by the Union pursuant to the declaration envisaged by entry 52, List II, would lead to a sort of a constitutional impasse, is more imaginary than real.
350 Further, in the minority judgment, Subba Rao, J. has in this context said: "A declaration under entry 52 of List I would no doubt enable Parliament to make a law in respect of an industry, that is to say Parliament may make a law in respect of an existing industry or an industry that may be started subsequently.
So too, before the declaration a State legislature could have made a law in respect of an industry by virtue of entry 24 of List II.
But neither entry 24 of List II nor entry 52 of List I empowers the State legislature before the said declaration or the Parliament after such a declaration to make a law for acquisition of lands.
If the State legislature before the declaration or the Parliament after the declaration wanted to acquire the land it can only proceed to make a law by virtue of entry 42 of List III.
" Reliance was, however, placed on the following passage in West Bengal case (supra) to urge that power of acquisition is an integral and inseparable concomitant of control assumed by the Union: "By making the requisite declarations under entry 54 of List I, the Union Parliament assumed power to regulate mines and minerals and thereby to deny to all agencies not under the control of the Union, authority to work the mines.
It could scarcely be imagined that the Constitution makers while intending to confer an exclusive power to work mines and minerals under the control of the Union, still prevented effective exercise of that power by making it impossible compulsorily to acquire the land vested in the State containing minerals.
The effective exercise of the power would depend if such an argument is accepted not upon the exercise of the power to undertake regulation and control by issuing a notification under entry 54, but upon the will of the State in the territory of which mineral bearing land is situated.
Power to legislate for regulation and development of mines and minerals under the control of the Union would, by necessary implication include the power to acquire mines and minerals.
Power to legislate for acquisition of property vested in the States cannot therefore be denied to the Parliament if it be exercised consistently with the protection afforded by article 31.
" This observation, if properly understood, is in the context of the contention that State property could not be subjected to power of 351 eminent domain and, hence, Union has no power to compulsorily acquire the same.
Therefore, there is no inner conflict between Cooper case (supra) and West Bengal case (supra) on the point that power of acquisition is an independent power referable to entry 42, List III.
However, even if there is a conflict between West Bengal case (supra) and Cooper case on this point, a later larger constitution Bench judgment in Cooper case would impliedly overrule the former to the extent of conflict.
There is on the contrary a good volume of authority for the proposition that the control assumed by the Union pursuant to declaration to the extent indicated in the statute making the declaration does not comprehend the power of acquisition if it is not so specifically spelt out.
In Kannan Devan Hills Produce Company Ltd. vs The State of Kerala & Another,(1) constitutional validity of Kannan Devan Hills (Resumption of Lands) Act, 1971, was challenged on the ground of legislative competence of Kerala State legislature to enact the legislation.
It was urged that in view of the declaration made in section 2 of the Tea Act, 1853, Tea was a controlled industry and, therefore, the State legislature was denuded of any power to deal with the industry.
It was further contended that tea plantation required extensive land and that resumption of land by the impugned legislation would directly and adversely affect the control taken over by the Union and, therefore, the State legislature was incompetent to enact the impugned legislation.
This contention was repelled holding that the impugned legislation was in pith and substance one under entry 18 of List II read with entry 42, List III.
In reaching this conclusion the Court held as under: "It seems to us clear that the State has legislative competence to legislate on entry 18, List II and entry 42 List III.
This power cannot be denied on the ground that it has some effect on an industry controlled under entry 52 List I. Effect is not the same thing as subject matter.
If a State Act, otherwise valid, has effect on a matter in List I it does not cease to be a legislation with respect to an entry in List II or List III.
The object of sections 4 and 5 seems to be to enable the State to acquire all the lands which do not fall within the categories (a), (b) and (c) of section 4(1).
These provisions are really incidental to the exercise of the power of acquisition.
The State cannot be denied a power to ascertain what land should be acquired by it in the public interest".
352 This conclusion was sought to be buttressed by reference to the decision of the Privy Council in Canadian Pacific Railway Company vs Attorney General,(1) wherein it is observed as under: "The appellant, the Canadian Pacific Rly. Co., which owned and managed the Empress Hotel in Victoria, British Columbia, while not denying that the regulation of hours of work was ordinarily a matter of "property and civil rights in the province" under head 13 of section 92 of the British North America Act, 1867, and accordingly within the legislative competence of the provincial legislature, contended, inter alia, that the company 's activities had become such an extensive and important element in the national economy of Canada that the dominion Parliament was entitled under the general powers conferred by the first part of section 91 of the Act of 1867 to regulate all the affairs of the company, even where that involved legislating in relation to matters exclusively reserved to the provincial legislatures by section 92".
It can, therefore, be said with a measure of confidence that legislative power of the States under entry 24, List II is eroded only to the extent control is assumed by the Union pursuant to a declaration made by the Parliament in respect of declared industry as spelt out by legislative enactment and the field occupied by such enactment is the measure of erosion.
Subject to such erosion, on the remainder the State legislature will have power to legislate in respect of declared industry without in any way trenching upon the occupied field.
State legislature which is otherwise competent to deal with industry under entry 24, List II, can deal with that industry in exercise of other powers enabling it to legislate under different heads set out in Lists II and III and this power cannot be denied to the State.
In this connection it would be advantageous to refer to Chanan Mal case (supra).
In that case constitution validity of Haryana Minerals (Vesting of Rights) Act, 1973, and the two notifications issued thereunder was challenged on the ground that the Act and the notifications issued thereunder were repugnant to the Mines & Minerals Act made by Parliament after making a declaration as contemplated by Entry 54, List I. The challenge was that the State legislature was incompetent to legislate on the topic of mines and minerals under entry 23, List II in view of the declaration made under entry 54, List I and the enactment of Act 67 of 1957 (Mines & Minerals Act) 353 by the Parliament.
By the impugned Act and the notifications issued thereunder the State Government of Haryana purported to acquire rights to salt petre, a minor mineral in the land described in the Schedule appended to the notification and by the second impugned notification the State Government announced to the general public that certain salt petre bearing areas in the State of Haryana mentioned therein would be auctioned on the dates given there.
Repelling the contention regarding legislative incompetence it was observed that it is difficult to see how the field of acquisition could become occupied by a Central Act in the same way as it had been in the West Bengal case (supra) even before Parliament legislates to acquire land in a State.
At least until Parliament has so legislated as it was shown to have done by the statute considered by this Court in the case from West Bengal, the field is free for State legislation falling under the express provisions of entry 42 of List III.
It was further observed as under: "It seems difficult to sustain the case that the provisions of the Central Act would be really unworkable by mere change of ownership of land in which mineral deposits are found.
We have to judge the character of the Haryana Act by the substance and effect of its provisions and not merely by the purpose given in the statement of reasons and objects behind it.
Such statements of reasons are relevant when the object or purpose of an enactment is in dispute or uncertain.
They can never override the effect which follows logically from the explicit and unmistakable language of its substantive provisions.
Such effect is the best evidence of intention.
A statement of objects and reasons is not a part of the statute, and, therefore, not even relevant in a case in which the language of the operative parts of the Act leaves no room whatsoever as it does not in the Haryana Act, to doubt what was meant by the legislators: It is not disputed here that the object and effect of the Haryana Act was to acquire proprietary right to mineral deposits in 'land" '.
There is thus a long line of decisions which clearly establishes the proposition that power to legislate for acquisition of property is an independent and separate power and is exercisable only under entry 42, List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists.
This power of the State legislature to legislate for acquisition of property remains intact and untramelled except to the extent where on 354 assumption of control of an industry by a declaration as envisaged in entry 52, List I, a further power of acquisition is taken over by a specific legislation.
As already pointed out, in pith and substance the impugned legislation is one for acquisition of scheduled undertakings and that field of acquisition is not occupied by the IDR Act which deals with control of management, regulation and development of a declared industry and there is no repugnancy between the impugned legislation and the IDR Act.
Both can co exist because the power acquired by the Union under the IDR Act can as well effectively be exercised after the acquisition of the scheduled undertakings as it could be exercised before the acquisition.
Therefore, the contention that the State legislature lacked legislative competence to enact the impugned legislation must be negatived.
A faint submission was made that nationalisation of industry as a national policy will have to be determined and enforced by the Union keeping in view its Industrial Policy Resolution and such piece meal nationalisation would certainly encroach upon the control assumed by the Union.
Impugned legislation does not purport to nationalise sugar industry in Uttar Pradesh.
And there is no bar to a Government owned company or Corporation to set up sugar manufacturing undertaking under an appropriate licence.
Therefore, the impugned legislation on this account does not encroach upon the occupied field.
The second limb of the submission was that in any event the impugned legislation was designed and enacted to prevent mismanagement and to take over management of the scheduled undertakings as a sequel to acquisition and it trenches into the field occupied by the IDR Act, a Central legislation, and to the extent acquisition enables the Corporation by vesting of the scheduled undertakings in it to take over control and management of the scheduled undertakings, the impugned legislation is void and unenforceable.
Section 20 of the IDR Act was pressed into service to substantiate the submission.
Section 20 of the IDR Act reads as under: "20.
After the commencement of this Act, it shall not be competent for any State Government or a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorises any such Government or local authority so to do".
355 Section 20 forbids a State Government or local authority from taking over the management or control of any industrial undertaking in declared industry.
On a correct interpretation, section 20 precludes any State Government or local authority from taking over the control or management of any industrial undertaking under any law for the time being in force which authorises any such Government or local authority so to do.
The impugned legislation was not enacted for taking over management or control of any industrial undertaking by the State Government.
In pith and substance it was enacted to acquire the scheduled undertakings.
If an attempt was made to take over management or control of any industrial undertaking in a declared industry indisputably the bar of section 20 would inhibit exercise of such executive power.
However, if pursuant to a valid legislation for acquisition of scheduled undertaking the management stands transferred to the acquiring body it cannot be said that this would be in violation of section 20.
Section 20 forbids executive action of taking over management or control of any industrial undertaking under any law in force which authorises State Government or a local authority so to do.
The inhibition of section 20 is on exercise of executive power but if as a sequel to an acquisition of an industrial undertaking the management or control of the industrial undertaking stands transferred to the acquiring authority section 20 is not attracted at all.
Section 20 does not preclude or forbid a State legislature exercising legislative power under an entry other than entry 24 of List II, and if in exercise of that legislative power, to wit, acquisition of an industrial undertaking in a declared industry the consequential transfer of management or control over the industry or undertaking follows as an incident of acquisition, such taking over of management or control pursuant to an exercise of legislative power is not within the inhibition of section 20.
Therefore, the contention that the impugned legislation violates section 20 has no merit.
And now to the oft beaten track of legislation being void as being in contravention of article 31(2) as it stood at the relevant time.
The impugned legislation was put on the statute book on August 27, 1971.
Therefore, Art, 31(2) as it stood on the relevant date may be noticed.
The Article as amended by Constitution (Twentyfifth Amendment) Act, 1971, will, therefore, not be attracted.
article 31(2) as it stood at the relevant time reads as under: "31(2).
No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the 356 property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court, on the ground that the compensation provided by that law is not adequate.
" Emphasis was placed on the word 'compensation ' retained in article 31(2) after its amendment by the Constitution (Fourth Amendment) Act, 1955, and a reference, was made to Vajravelu Mudaliar vs Special Deputy Collector of Land Acquisition, West Madras, wherein it was held by this Court that even after the amendment of article 31 (2) by the Constitution (Fourth Amendment) Act, 1955, it still retains the expression 'compensation ' after its judicial interpretation by this Court in several decisions, viz., to mean just equivalent to the expropriated owner.
Reference was then made to Union of India vs Metal Corporation of India Ltd. & Anr.
,(2) in which this Court affirmed the interpretation of the word 'compensation ' to mean just equivalent.
Approaching the matter from this angle the Court struck down the Metal Corporation of India (Acquisition) Act, 1965, holding that as the Act has laid down different principles for ascertaining the value of different parts of the undertaking and as all the principles so laid down do not provide for the just equivalent of all parts of the undertaking mentioned therein, the sum total also cannot obviously be a just equivalent of the undertaking.
In reaching this conclusion exception was taken to assessing the value of the used machinery on the basis of written down value arrived at as per the provisions of the Income Tax Act.
This observation cannot be said to be any more good law in view of the decision of a Constitution Bench of this Court in State of Gujarat vs Shantilal Mangaldas & Ors.
,(3) wherein Shah, J., speaking for the Court specifically overruled the Metal Corporation case (supra) observing as under: "The Court then proceeded to hold that the two principles laid down in cl.
(b) of Paragraph II of the Schedule to the Act (i) that compensation was to be equal to the cost price in the case of unused machinery in good condition, and (ii) written down value as understood in the Income tax law was to be the value of the used machinery were irrelevant to the fixation of the value of the machinery as on the date of acquisition.
" 357 "We are unable to agree with that part of the judgment.
The Parliament had specified the principles for determining compensation of the undertaking of the company.
The principles expressly related to the determination of compensation payable in respect of unused machinery in good condition and used machinery.
The principles were set out avowedly for determination of compensation.
The principles were not irrelevant to the determination of compensation and the compensation was not illusory.
" It thus appears well settled that if a legislation provides principles for determining compensation, to wit, written down value as understood in Income tax law to be the value of the used machinery, that principle could neither be said to be irrelevant for determining the compensation nor the compensation so awarded could be styled as illusory.
It was, however, said that this decision in Shantilal Mangaldas is overruled in Cooper 's case and, therefore, the wheel has moved the full circle and the expression 'compensation ' and principle for determining the compensation as interpreted in Vajravelu Mudaliar 's case (supra) is restored.
This is not borne out by the pertinent observation in Cooper 's case (supra) which may be extracted: "Both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognized principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired.
On the application of the view expressed in P. Vajravelu Mudaliar 's case or in Shantilal Mangaldas 's case the Act, in our judgment, is liable to be struck down as it fails to provide to the expropriated banks compensation determined according to relevant principles.
Section 4 of the Act transfers the undertaking of every named bank to and vests it in the corresponding new bank.
Section 6(1) provides for payment of compensation for acquisition of the undertaking and the compensation is to be determined in accordance with the principles specified in the Second Schedule.
Section 6(2) then provides that though separate valuations are made in respect of the several matter specified in Sch.
II of the Act, the amount of compensation shall be deemed to be a single compensation.
Compensation being the equivalent in terms 358 of money of the property compulsorily acquired, the principle for determination of compensation is intended to award to the expropriated owner the value of the property acquired.
The science of valuation of property recognizes several principles or methods for determining the value to be paid as compensation to the owner for loss of his property: there are different methods applicable to different classes of property in the determination of the value to be paid as recompense for loss of his property.
A method appropriate to the determination of value of one class of property may be wholly inappropriate in determining the value of another class of property.
If an appropriate method or principle for determination of compensation is applied, the fact that by the application of another principle which is also appropriate, a different value is reached, the Court will not be justified in entertaining the contention that out of the two appropriate methods, one more generous to the owner should have been applied by the legislature.
" However, it was pointed out that Shelat, J. speaking for himself and Grover, J. in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala,(1) in terms observed as under: "In State of Gujarat vs Shantilal Mangaldas & Ors.
the decision in Metal Corporation of India was overruled which itself was overruled by R. C. Cooper vs Union of India.
" The question is whether the statement of law in Shantilal Mangaldas (supra) that the principle of awarding compensation on the basis of written down value for used machinery is a valid principle for determining compensation and whether the compensation so awarded was illusory is not overruled by any observation in Cooper 's case.
Undoubtedly, in Kesavananda Bharati case (supra) it is reiterated by Hegde, J. speaking for himself and Mukherjea, J. that it will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has no reasonable relationship to the value of the property acquired or that the amount to be paid has been arbitrarily fixed or that the same is illusory return for the property taken.
Chandrachud, J. (as he then was), while interpreting the expression 'amount ' in the amended article 31(2) observed as under: "The specific obligation to pay an "amount" and in the alternative the use of the word "principles" for determination of that amount must mean that the amount fixed or 359 determined to be paid cannot be illusory.
If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right.
You cannot tell him 'I will take your fortune for a farthing '." But in the next breath it has been observed that "the amount fixed for being paid to the owner is wholly beyond the pale of challenge that it is inadequate.
The concept of adequacy is directly co related to the market value of the property and therefore, such value cannot constitute an element of that challenge.
" But this was the situation after amendment of article 31(2) by the Constitution (Twentyfifth Amendment) Act.
Even as the article stood at the relevant time it was open to the legislature to fix principle for determining compensation and unless it is shown that the principles are irrelevant to the determination of the value of the property or by working out the compensation according to the principles so specified the compensation becomes illusory, the principles themselves are beyond the pale of challenge before a court of law on the ground that they do not provide adequate compensation.
Now, here the compensation is worked out and specified in the schedule to the impugned Act.
The compensation is determined in round figure.
This Court has in terms accepted that payment of compensation on the basis of written down value calculated according to the Income tax law for used machinery is not irrelevant as a principle for determining compensation.
That principle appears to have been adopted for valuing used machinery though the legislation fixes compensation payable to each undertaking in round sum.
And that was the only part challenged.
It was, however, said that no principle is discernible because not only none was stated on the floor of the House but to a specific question the reply was that principle is not to be disclosed.
Debate in legislature cannot conclude the point.
Here the principle is discernible and that appears to be valid.
It represents the collective will of the House.
To reject it would tantamount to saying that the majority members voted without understanding and appreciating the principles.
However, the principle is extracted in court room debate and it is a valid principle.
A peep into the background leading to the acquisition of the scheduled undertakings would reveal that these scheduled undertakings had a heavy back load of carried forward loss, that even though they were taking sugar cane from cane growers, i.e. the farmers, they failed to pay them the price of sugar cane.
There was labour unrest as labour was not paid.
Generally speaking, they can be styled as 360 sick undertakings and become a drag on the economy of the area.
There was no scope for ploughing back the profits to rejuvenate the machinery because there was no profit.
The situation had not improved even when managements of some of the undertakings were taken over under the IDR Act and, therefore, this desperate situation called for a drastic remedy in public interest and while applying that drastic remedy of acquisition principles which are valid for determining the value of machinery were adopted.
The adequacy or otherwise of compensation on the calculus made by applying the principle is beyond the judicial review.
It would be a day time hallucination to call such principle irrelevant or compensation illusory.
The challenge to the validity of the impugned legislation on the ground of violation of article 31 (2) must accordingly fail.
There remain two minor and incidental points mentioned in passing.
The submissions themselves lacked emphasis.
They are, that (1) no compensation is provided for the agricultural land taken over by the State; (2) good will of the scheduled undertakings was not evaluated as a component of compensation.
With reference to Ishwari Khetan Sugar Mills (P) Ltd., it was said that 36 acres of agricultural land belonging to the company owning the scheduled undertaking was taken over without compensation.
It was countered by saying that agricultural land is not taken over.
It is not clear from the pleadings and record whether agricultural land outside the structures of scheduled undertakings has been acquired and has at all been taken over by the Corporation.
It may be that between various structures of scheduled undertakings there might be some open land but that is part and parcel of scheduled undertakings because any other construction would show that a passage or road between two constructions could not be acquired.
Unless, therefore, it is specifically shown that while acquiring scheduled undertakings agricultural land belonging to the company or the owner owning scheduled undertaking was either acquired or taken over as part of the acquisition it is not possible to accept the submission that there was acquisition of agricultural land without providing compensation for the same.
And as for the good will, less said the better.
The scheduled undertakings were sick units and the sickness was chronic.
A manufacturing unit with heavy carried forward loss and defaulting in payments, possibly facing appointment of Receivers for realising tax arrears, asks compensation for the good will generated by it.
This good will appears to be more imaginary than real or an argument to support an untenable submission.
But the better answer is that there 361 cannot be a good will of a manufacturing undertaking but it can be of a company, a partnership, or a proprietor owning scheduled undertaking and neither the company nor the partnership nor the proprietory unit, if any, has been acquired under the impugned legislation.
Therefore, in evaluating compensation of the scheduled undertakings there is no question of evaluating the good will.
Mr. R. A. Gupta appearing in SLP.
6252/79 raised an additional contention that the impugned Act is violative of article 14 in that selection of petitioners ' scheduled undertakings for acquisition is wholly arbitrary and there is no difference between those selected for acquisition and those left out through all such sugar, undertakings in the State of Uttar Pradesh were similarly situated and similarly circumstanced.
Sustenance was largely sought to be drawn from the Report of Justice Bhargava styled as Sugar Industry Inquiry Commission, 1974, which inter alia, specified 17 sugar undertakings in Uttar Pradesh as prima facie sick sugar mills.
After reading out a portion of the Report it was said that classifying the 12 sugar undertakings for acquisition is not based on any intelligible differentia between those included in the group for acquisition and those left out and that this differential treatment has no rational relationship to the object sought to be achieved by the impugned legislation.
On behalf of respondents learned Advocate General for the State of Uttar Pradesh countered this contention by pointing out that before acquiring the scheduled undertakings the Government had a close review of the condition of the sugar undertakings done for certain specific period set out in the affidavit and ascertained whether the situation had become desperate on account of the persistent default in payment of cane price, purchase tax, labour dues, etc.
The situation in Uttar Pradesh appears to be peculiar in that cane growers go on selling their cane to sugar undertakings probably having little or no option in this behalf because it is a perishable commodity and must be disposed of as early as possible and they have to await payment at the sweet will, whim and caprice of the sugar barons.
Its unhealthy effect on marginal farmers would be intolerable because the cash crop would not fetch any cash and destitution may be the inevitable outcome.
And this phenomenon was repeated year after year.
It was pointed out that a close scrutiny was applied to this persistent default and where the situation in respect of sugar undertakings was desparate they were classified together and they were sought to be acquired.
Can it be said that this classification is not based on any intelligible differentia.
Economic situation of an industrial undertaking may be very good, good, average, bad, intolerable and uneconomic in larger national perspective.
362 It would have been difficult for the Government to group all sugar undertakings with such as were living on coramine doses.
There does appear to be the intelligible differentia by which this classification of those in an intolerable condition has been grouped together.
Acquisition was for an avowed object of rejuvenating these undertakings and thereby improving the economy of the area by providing priority in payment to cane growers, labour, in respect of whom there is no cushion for sufferance.
Thus, this differentia undoubtedly has a rational relationship to the object sought to be achieved by the Act.
The challenge of article 14 was an argument of despair and must be repelled.
These were all the contentions in these appeals and special leave petitions and as there is no merit in any of them, the appeals and the special leave petitions fail and are dismissed with costs in one set.
PATHAK, J. We have had the benefit of reading the judgment prepared by our brother Desai.
While we broadly agree with the final conclusions reached by him on the several points debated before us, we would prefer to refrain from expressing any opinion on the question whether the declaration made by Parliament in section 2 of the Industries (Development and Regulation) Act, 1951 in respect of the industries specified in the First Schedule to that Act can be regarded as limited to removing from the scope of Entry 24 of List II of the Seventh Schedule to the Constitution only so much of the legislative field as is covered by the subject matter and content of that Act or it can be regarded as effecting the removal from that Entry of the entire legislative field embracing all matters pertaining to the industries specified in the declaration.
It seems to us that the observations made by this court in The Hingir Rampur Coal Co., Ltd. and Others vs The State of Orissa and Others,(1) State of Orissa vs M. A. Tulloch and Co.,(2) Baijnath Kedia vs State of Bihar & Ors.(3) and State of Haryana & Anr.
vs Chanan Mal, etc.(4) cannot be of assistance in this behalf.
In each of those cases, the declaration made by Parliament in the concerned enactment limited the control of the regulation of the mines and the development of minerals to the extent provided in the enactment.
Whether the terms in which the declaration has been framed in section 2 of the Industries (Development and Regulation) Act a declaration not expressly limiting control of the specific indus 363 tries to the extent provided by the Act can be construed as being so limited is a matter which, we think, we should deal with in some more appropriate case.
The range of considerations encompassed within the field of enquiry to which the point is amenable has not, to our mind, been sufficiently covered before us.
And for good reason.
The provocation was limited.
For the controversy in the present cases concerning the legislative competence of the State Legislature to enact the U.P. Sugar Undertakings (Acquisition) Act, 1971 can be adequately disposed of on the ground that the legislation falls within Entry 42 of List III and cannot be related to Entry 52 of List I or Entry 24 of List II.
When the impugned enactment truly falls within Entry 42 of List III "acquisition and requisitioning of property" there is a reluctance to enter upon an examination of the mutually competing claims of Entry 52 of List I and Entry 24 of List II entries which deal with "industries", an entirely different subject matter.
With this reservation, we have no hesitation in agreeing with the ultimate conclusions reached by our learned brother on the remaining points of controversy and in concurring with the order proposed by him disposing of these appeals and special leave petitions.
P.B.R. Appeals dismissed.
| IN-Abs | By the U.P. Sugar Undertakings (Acquisition) ordinance, 1971 (which later became an Act) twelve sugar undertakings stood transferred and vested in a Government.
undertaking named the U.P. State; Sugar Corporation Limited.
The appellants ' writ petitions before the! High Court impugning the constitutional validity of the Act were dismissed.
In appeal to this Court it was contended on behalf of the appellants that since sugar is a declared industry under the Industries (Development and Regulation) Act, 1951 in view of entry 52 in Union List read with entry 24 in state list further read with article 246.
Parliament alone is competent to pass the law on the subject and not the State Legislature and, therefore, the impugned legislation is void.
Dismissing the appeals, ^ HELD: Industry being a matter enumerated in entry 24 of List II only the State legislature has the exclusive power to legislate in respect of it, but this power is subject to the provisions of entries 7 and 52 of List I.
While under entry 7, if a declaration is made by Parliament that a particular industry is necessary for defence or for the prosecution of war, Parliament, to the exclusion of the State legislature, would be entitled to legislate in respect of that industry, a declaration by Parliament by law to assume control over any particular industry in public interest in a sine qua non to clothe Parliament with power under entry 52, List I to legislate in respect of that industry.
The declaration contemplated by this entry is a declaration by law.
A mere declaration unaccompanied by law is incompatible with entry 52 of List I.
But that does not mean that once a declaration is made in respect of an industry that industry as a whole is taken out of entry 24, List II.
[337 F H; E] Baijnath Kedia vs State of Bihar & Ors. ; at 113 and State of Haryana & Anr.
vs Chanan Mal, etc.
; at 700 referred to.
The control under section 2 of the 1951 Act was assumed for a specific and avowed object namely development and regulation of certain industries.
This control has to be exercised in the manner provided under the statute.
Therefore, Parliament, has made a declaration for assuming control in respect 332 of the declared industries set out in the schedule of the Act only to the extent provided in the Act.
A conspectus of the provisions of the impugned Act shows that in pith and substance it is one for acquisition of scheduled undertakings and such acquisition by transfer of ownership of those undertakings to the Corporation would in no way come in conflict with any of the provisions of the Central Act of 1951.
The Central Act is primarily concerned with development and regulation of declared industries and is not concerned with ownership of industrial undertakings in declared industries, except to the extent of control over management of the undertaking by the owner.
By the acquisition under the impugned Act aud vesting of the undertakings in the Corporation they would still be under the control of the Central Government because the Corporation would be amenable to the authority and jurisdiction of the Central Government.
Therefore, there is no conflict between the impugned legislation and the control exercised by the Central Government under the provisions of the Central Act.
[340 H 341 A. 344 C G. 345 D] There is no force in the argument that the power of acquisition under Entry 42, List II is incidental to the power to legislate in respect of various topic in the lists and, therefore, when the Union assumed control over the declared industry such control comprehends the power to acquire and hence the power of the State Legislature to enact legislation for acquisition of properly of scheduled undertakings would be denude.
By the Constitution (Seventh Amendment) Act, Entry 33 in List I and Entry 36 in List II were deleted and a single comprehensive Entry 42 in List III (acquisition and requisitioning of property) was added.
The power to acquire property can now be exercised concurrently by the Union and the States.
After the substitution of Entry 42 in List III it cannot be said that the power of acquisition and requisitioning of property is incidental to the other power.
It is an independent power provided for in a specific entry.
Therefore, both the Union and the state would have power of acquisition and requisition of property.
[345 E F; 346 B E] There is a long line of decisions which clearly establishes the proposition that power to legislate for acquisition of property is an independent and separate power and is exercisable only under Entry 42, List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists.
This power of the State legislature to legislate for acquisition of property remains intact and untrammeled except to the extent where on assumption of control of an industry by a declaration as envisaged in Entry 52, List I a further power of acquisition is taken over by a specific legislation.
[353 H 354 A] Rustom Cavasjee Cooper vs Union of India ; at 567, Rajamundry Electric Supply Corporation Ltd. vs State of Andhra Pradesh ; State of Bihar vs Maharajadhiraja Sir Kameshwar Singh State of West Bengal vs Union of India [1964]1 S.C.R. 371, referred to.
The argument that the State legislature lacked competence to enact the impugned legislation is without force.
Legislative power of the State under Entry 24, List II is eroded only to the extent control is assumed by the Union pursuant to a declaration made by the Parliament in respect of a declared 333 industry as spelt out by the legislative enactment and the field occupied by such enactment is the measure of erosion.
Subject to such erosion, on the remainder the State legislature will have power to legislate in respect of declared industry without in any way trenching upon the occupied field.
State legislature, which is otherwise competent to deal with industry under Entry 24, List II, can deal with that industry in exercise of other powers enabling it to legislate under different heads set out in Lists II and III and this power cannot be denied to the State.
[354 C, 352 E F] The contention that the impugned Act is in violation of section 20 of the Central Act has no merit.
The impugned legislation was not enacted for talking over the management or control of any industrial undertaking by the State Government.
In pith and substance it was enacted to acquire the scheduled undertakings.
If an attempt was made to take over the management or control of any industrial undertaking in a declared industry the bar of section 20 would inhibit exercise of such executive power.
The inhibition of section 20 is on the executive power but if as a sequel to an acquisition of an industrial undertaking the management or control of the industrial undertaking stands transferred to the acquiring authority section 20 is not attracted.
It does not preclude or forbid a State legislature exercising legislative power under an entry other than Entry 24 of List II and if in exercise of that legislative power the consequential transfer of management or control over the industry or undertaking follows as an incident of acquisition such taking over of management or control pursuant to an exercise of legislative power is not within the inhibition of section 20.
[355 F, A E] The challenge to the validity of the impugned legislation on the ground of violation of Article 31(2) must fail.
At the time of acquisition the scheduled undertakings had a heavy backlog of carry forward losses, they failed to pay the growers the price of cane purchased, the labour was not paid as a result of which there was labour unrest.
The situation did not improve even when some of the undertakings were taken over under the Central Act and a drastic remedy was called for in public interest and while applying that drastic remedy of acquisition the principle which are valid for determining the value of machinery were adopted.
The adequacy or otherwise of compensation on the calculus made by applying the principles is beyond judicial review.
[360 C, 359 H 360 1] Rustom Cavasjee Cooper vs Union of India ; at 567, Vajravelu Mudaliar vs Special Deputy Collector of Land Acquisition West Madras [1965] 1 SR 614, Union of India vs Metal Corporation of India & Anr. , State of Gujarat vs Shantilal Mangaldas & Ors. ; and His Holiness Kesavananda Bharati Sripadagaivalu vs State of Kerala referred to.
Pathak & Koshal JJ (concurring in the result) It is not necessary in this case to express any opinion on the question whether the declaration made by Parliament in section 2 of the Industries (Development and Regulation) ct, 1951 in respect of the industries specified in the First schedule to that Act can be regarded as limited to removing from the scope of Entry 2 of List II of the Seventh Schedule to the Constitution only so much of the legislative field as is covered by the subject matter.
and content of that Act or it can be regarded as effecting the removal from that entry of the 334 entire legislature field embracing all matters pertaining to the industries specified in.
the declaration.
The controversy in the preset case can be adequately disposed of on the ground that the legislation falls within Entry 42 of Lt m and cannot be related to Entry 52 of List I or Entry 24 of List II.
352 E F, 363 Bl The Hingir Rampur Coal Co. Ltd. and others vs The State of Orissa and others , State of orissa vs M. A. Tulloch and C. [964} 4 SCR 461, Baijnath Kedia vs State of Bihar & ors.
and State of Haryana & Anr.
vs Chanan Mal, etc.
; held inapplicable.
|
Civil Appeal No. 2183 of 1972.
Appeal by Special Leave from the Judgment and Order dated 28 7 1970 of the Calcutta High Court in Income Tax Reference No. 45 of 1969.
F. section Nariman and M. M. Kshatriya for the Appellant.
section T. Desai, K. C. Dua, Miss A. Subhashini for the Respondent.
431 section Chaudhary. D. N. Gupta and T. A. Ramachandran for the Respondent Intervener.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment of the Calcutta High Court on a question concerning the computation of income from house property under the Income tax Act, 1961.
The assessee, a private limited company, is the owner of the property described as 3, Gun Foundry Road.
Originally it housed a jute baling press.
The property was requisitioned by the West Bengal Government in 1951.
It was released to the assessee on December 26, 1960, after being used for housing refugees.
Evidently, the building had not received the care it deserved, for when the assessee resumed possession he found it in a sorry state.
The assessee filed an income tax return for the assessment year 1962 63 (for which the previous year was the calendar year 1961), and the return recited that the annual value of the building was Rs. 1,23,672.
However, on the ground that the building had remained vacant throughout the previous year, the assessee claimed a remission in the computation of the income of the entire annual value.
The assessee also claimed a deduction on account of insurance premium and municipal taxes relating to the property.
The Income tax Officer took the view that the property was not in a habitable condition and did not admit of letting and therefore no question arose of applying the provisions of the Income Tax Act relating to the computation of income from property.
Accordingly, he held that the annual value as well as the vacancy claim had to be ignored.
The assessee appealed to the Appellate Assistant Commissioner, who held that although the property had remained vacant, it possessed an annual value and should be considered for assessment.
On that view, he allowed the deductions claimed by the assessee.
In second appeal, the Income Tax Appellate Tribunal favoured the view taken by the Income Tax Officer and accordingly held that the claim to deductions made by the assessee must fail.
The Tribunal, in other words, affirmed that the property fell outside the scope of section 22 of the Act and, consequently, denied the deductions.
The Revenue appeared satisfied with the order of the Appellate Tribunal.
But, at the instance of the assessee, a reference was made to the High Court at Calcutta on the following question: "Whether on the facts and in the circumstances of the case and on the interpretation of sections 22 and 23 of the 432 Income tax Act, 1961 the Tribunal was right in holding that in computing the income from property the bonafide annual value of the property at 3, Gun Foundry Road, Calcutta has not to be taken and in disallowing the vacancy remission and other deductions in respect of the aforesaid property ?" The High Court was of opinion that the Appellate Tribunal had misconceived the law in holding that because the property was in a state of disrepair it did not possess an annual value.
As regards the assessee 's claim to the specified deductions, it held that while the insurance premium paid by it could be allowed, there was no merit in the claim on account of vacancy remission and payment of municipal taxes.
Accordingly, the High Court recorded: "On the first part of the question we hold that the Tribunal was wrong in holding that there was no annual value of this property No. 3, Gun Foundary Road and that it was outside the scope of section 22 of the Income tax Act, 1961.
We hold and we are of the opinion that this property has an annual value in the facts and circumstances of the case and it should be taken into account in the light of the principles and observations we have made above.
We therefore set aside that part of the order of the Tribunal and answer the question accordingly.
The answer to this first part of the question is in the negative.
The answer to the second part of the question follows from the answer to the first part of the question and is that the only deduction in the facts and circumstances of the present reference which the assessee can get is the deduction for insurance premium paid.
We hold further on this part of the question that the other deductions, namely, (a) vacancy remission and (b) municipal taxes are not permissible and the assessee is not entitled to claim them in the present reference.
We answer the second part of the question accordingly.
The Tribunal, therefore, will dispose of the case conformably to this judgment and the interpretation of the principles enunciated herein under section 260 of the Income tax Act, 1961.
" At the outset a serious controversy arose before us on the point whether the High Court was right in including a direction in its judgment that the Appellate Tribunal should take into account its finding 433 that the property possessed an annual value.
The assessee says that when the Appellate Tribunal had held that the property did not fall within the scope of section 22, it was for the Revenue, in case it desired to charge the assessee on income from this property, to apply for a reference to the High Court.
It is urged that the Revenue having omitted to do so, it was not open to the High Court to make an order enabling the Revenue to tax any income from that property.
On behalf of the Revenue, the submission is that inasmuch as the assessee had taken the case in reference to the High Court for an adjudication on the deductions claimed by it the point whether the property possessed an annual value and its income was chargeable was directly raised by the assessee itself, and therefore, the High Court was right in rendering a decision on this point.
"Income from house property" is one of the heads into which different categories of income included in the total income have been classified.
For the purpose of computing "income from house property", a code of provisions is incorporated in sections 22 to 26 of the Act.
section 22 declares that the annual value of property consisting of buildings or lands appurtenant thereto in the ownership of the assessee, excepting such portions of the property occupied for any business or profession carried on by him of which the profits are chargeable to income tax, shall be chargeable to income tax as "income from house property".
The annual value is determined after making a deduction on account of municipal taxes.
The income from house property is then subject to the deductions set forth in Sec.
The deductions are made for the purpose of computing the net figure of the income from property.
In order to decide whether the High Court was right in including a direction to the Appellate Tribunal to take into account the annual value of the property, it is necessary to appreciate the true scope of the reference taken to the High Court.
The Income Tax Officer had found that the property, having regard to its condition, was not capable of being let to tenants and therefore the gross value and the deductions claimed had to be ignored.
The assessee was aggrieved by that finding.
It must be remembered that in its return the assessee had indicated that the property possessed an annual value of Rs. 1,23,672 unless the property had an annual value, it believed, it could not be entitled to the deductions claimed by it.
In appeal before the Appellate Assistant Commissioner, its case was that the property could not be ignored for the purposes of the Income tax Act.
The contention was accepted by Appellate Assistant Commissioner, who held that the annual value of the property could not be 434 ignored and further that the vacancy remission and other deductions claimed by the assessee were admissible.
When the Revenue proceeded in appeal to the Appellate Tribunal it urged that the assessee was not entitled to the deduction claimed in respect of the property.
The Appellate Tribunal considered the evidence relating to the condition of the building, and was of opinion that the building was not in a habitable condition and it could not be said that the property could be reasonably let out at any particular annual value.
In its opinion, the property fell outside the scope of Section 22 and, therefore, the Income Tax Officer was right in ignoring the property altogether and in not computing any profit or loss in respect of it.
The Appellate Tribunal set aside the order of the Appellate Assistant Commissioner and restored the order of the Income Tax Officer.
It was in the context of this train of proceedings that the assessee now took the case in reference to the High Court.
The question referred to the High Court was rooted in the fundamental submission of the assessee that the property possessed an annual value for the purpose of Section 22 and it was, therefore, entitled to the vacancy remission and other deductions claimed by it.
The frame of the question indicates that it has two parts, whether the Appellate Tribunal was right in holding that in computing the income from property the premises 3, Gun Foundry, possessed an annual value and whether the Appellate Tribunal was right in disallowing the vacancy remission and other deductions in respect of that property.
Plainly, unless the property fell within the scope of Section 22 there was no occasion for considering the assessee 's claim to the deductions.
The High Court also, when considering the reference, examined the question in its bifurcated character.
But although, bifurcated, the thrust of the question was directed to the consideration of the deductions claimed by the assessee.
Whether the property possessed an annual value was necessary to determine solely for the purpose of considering the claim to deductions.
Unless the assessee was interested in those deductions it would not have asked for a finding, that the property possessed an annual value.
The High Court was, therefore, right in examining both parts of the question and in determining whether the property had an annual value and the deductions claimed were permissible.
The assessee can have no quarrel with the High Court considering the first part of the question, because that was the very case of the assessee throughout from the earliest stage of the proceeding.
From what has gone before it is apparent that the determination whether the property has an annual value arises only if it is found that on the terms of the statute the assessee is otherwise entitled to the deductions claimed by him.
If those deductions are not permissible under 435 the relevant section, no question arises of examining whether the property has an annual value.
Viewed in that light, the determination of the question whether the property has an annual value falls into its proper place.
It cannot be contended that even though the claim to deductions must otherwise fail, the question whether the property has an annual value must still be considered.
Such a contention is not open to the Revenue.
If the Revenue intended that the High Court should determine whether the property had an annual value as a question independent of its finding on the admissibility of the deductions, the Revenue should have applied to the Appellate Tribunal for a reference to the High Court accordingly.
It did not ask for a reference and, therefore it is not entitled to raise that contention now.
It seems to us that there is only one way of looking at the case, and that is whether on the assumption that the property has an annual value and falls within the scope of Section 22, the assessee is entitled to the deductions under Sections 23 and 24.
If he is entitled to any of those deductions, then in order to establish the foundation in which the deductions can be rooted it will be necessary to determine whether the property possesses an annual value.
That is what the High Court did, and the observations made by it must be construed accordingly.
It may be that the deduction to which the assessee is found entitled runs to a far smaller figure than the annual value property attributable to the property.
In that event the consequence will be a net annual value of some significance.
And this will be the consequence notwithstanding that the reference is at the assessee 's instance and no reference at all has been brought by the Revenue.
The result appears anomalous, but after all it is for the assessee to choose whether or not he wishes to take a reference to the High Court, and if he is found entitled to even one of the deductions claimed by him and effect cannot be given to that claim without the annual value of the property being computed he has only to thank himself.
At the same time, we must point out that the High Court, after holding that the property has an annual value, has erred in stating that it sets aside that part of the order of the Appellate Tribunal.
The High Court, on a reference before it, does not act as a court of appeal.
The jurisdiction is advisory and no more.
The High Court is empowered to decide the question of law referred to it, and to return its answer to the Appellate Tribunal.
The Appellate Tribunal then takes up the appeal and disposes it of conformably with the answer returned by the High Court.
It is not part of the jurisdiction of the High Court to interfere and modify or set aside the appellate order of the Tribunal.
436 As has been said earlier, the High Court considered both parts of the question referred to it, whether the property possessed an annual value and whether the deductions claimed by the assessee were admissible.
It examined first whether the deductions were admissible.
It found that the amount of Rs. 689 paid on account of fire insurance premium in respect of the property was deductible from the annual value under section 24(1) (ii).
Regarding the claim under section 24(1) (ix) on account of vacancy remission, it disallowed the deduction on the ground that the property was not let during the previous year.
The claim to deduction under section 23 of the municipal taxes paid in respect of the property was also rejected in the view that the municipal taxes could be deducted only if the property was in the occupation of a tenant.
The High Court then turned to the fundamental question whether the property possessed an annual value for the purpose of section 22, and held that merely because the building was in a state of disrepair it could not be predicated that it had no annual value.
In the result, on the question referred by the Appellate Tribunal it returned the opinion that the property possessed an annual value and that the assessee was entitled to a deduction in respect of insurance premium only.
In this appeal, the only question is whether the High Court is right in holding that the assessee is not entitled to any deduction on account of municipal taxes and the vacancy remission claimed by it.
The claim to the deduction of municipal taxes is made under the proviso to section 23(1).
The proviso reads: "Provided that where the property is in the occupation of a tenant, the taxes levied by any local authority in respect of the property are under the law authorising such levy, payable wholly by the owner, or partly by the owner and partly by the tenant, a deduction shall be made equal to the part, if any, of the tenant 's liability borne by the owner.
" It is immediately apparent that the proviso to section 23(1) can be availed of only if the property is in the occupation of a tenant.
It would seem so on the language of the proviso.
The assessee does not rest his claim on any other provision of law.
In the circumstances, the High Court is right in denying the claim in respect of municipal taxes.
The next deduction claimed requires the consideration of section 24(1) (ix) of the Act.
437 section 24(1)(ix) reads : "24 (1) Income chargeable under the head 'Income from house property ' shall, subject to the provisions of subsection (2), be computed after making the following deductions, namely: xx xx xx xx xx (ix) Where the property is let and was vacant during a part of the year, that part of the annual value which is proportionate to the period during which the property is wholly unoccupied or, where the property is let out in parts, that portion of the annual value appropriate to any vacant part, which is proportionate to the period during which such part is wholly unoccupied. . " The question is whether the property, 3 Gun Foundry Road, which admittedly has remained vacant since December 26, 1960 can attract section 24(2)(ix).
It is plain that it cannot.
The provisions of the Income tax Act relating to the charge on income apply in relation to a specific assessment year and the provisions of the Act providing for the computation of the chargeable income (which includes taking into account permissible deductions in the computation of the income chargeable under different heads) apply, in the absence of anything to the contrary in relation to the relevant previous year.
The total income of the previous year needs to be computed, and the different provisions relating to the computation of income must be read and applied in the context of the facts and circumstances obtaining during that year, unless the context suggests the contrary.
Consequently, when reading section 24(2) (ix) which speaks of property which is let and which was vacant during a part of the year, we must read it to mean property which was let during the previous year and was vacant during a part of the year.
It cannot refer to property which was not let at all during the previous year.
In the present case, there is no evidence to show that it was ever even given out by the assessee that the property was available for letting.
We were referred to Maharajadhiraja of Darbhanga vs Commissioner of Income tax, Bihar and Orissa,(1) where it was observed by the Patna High Court that section 9 (1) paragraph 7 of the Income Tax Act, 1922 could be invoked in a case where a house not in the occupation of the owner was habitually let to tenants and the vacancies referred to are vacancies between the different tenancies, or a house though not let is dismantled and shut up by the owner.
We have carefully read the judgment 438 delivered by that High Court, and it appears that the observation is a mere obiter.
The actual point for decision was in fact quite different.
It was a case where the assessee, who owned several houses kept them furnished and open for his residence and never let them to any tenant, and he did not occupy some of them during the relevant previous year.
He claimed a vacancy remission in respect of them.
The High Court, in our opinion, rightly rejected the claim.
It may also be pointed out that the statutory provision considered there was materially different from the one before us.
In our judgment, the assessee is not entitled to the deductions claimed by it in respect of municipal taxes and a vacancy remission.
The High Court is right in its view in respect of this part of the case.
The appeal is dismissed.
There is no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | The appellant assessee, in his income tax return for the assessment year 1962 63 (for which the previous year was the calendar year 1961) recited that the annual value of the building derequisitioned by the Govt.
on 26 12 1960 was Rs. 1,23,672/ .
However on the ground that the building had remained vacant throughout the previous year, the assessee claimed a remission in the computation of the income of the entire annual value.
The assessee also claimed a deduction on account of insurance premium and municipal taxes relating to the property.
The Income Tax Officer took the view that the property was not in a habitable condition and did not admit of letting and therefore no question arose of applying the provisions of the Income Tax Act relating to the computation of income from property.
Accordingly, he held that the annual value as well as the vacancy claim had to be ignored.
The assessee appealed to the Appellate Assistant Commissioner who held that although the property had remained vacant, it possessed an annual value and should be considered for assessment.
On that view, he allowed the deductions claimed by the assessee.
In second appeal, the Income Tax Appellate Tribunal favoured the view taken by the Income Tax Officer and accordingly held that the claim to deductions made by the assessee must fail.
The Tribunal, in other words, affirmed that the property fell outside the scope of section 22 of the Act and, consequently, denied the deductions.
The Revenue appeared satisfied with the order of Appellate Tribunal.
But, at the instance of the assessee a reference was made to the High Court.
The High Court was of the opinion that the Appellate Tribunal had misconceived the law in holding that because the property was in a state of disrepair it did not possess an annual value.
As regards the assessee 's claim to the specified deduction, it held that while the insurance premium paid by it could be allowed, there was no merit in the claim on account of vacancy remission and payments of municipal taxes.
Hence the appeal by special leave to this Court.
Dismissing the appeal, the Court, ^ HELD : 1.
Whether the High Court was right in including a direction to the Appellate Tribunal to take into account the annual value of the property 429 will depend on the appreciation of the true scope of the reference taken to the High Court.
The question referred to the High Court was rooted in the fundamental submission of the assessee that the property possessed an annual value for the purpose of Section 22 and it was, therefore, entitled to the vacancy remission and other deductions claimed by it.
The frame of the question indicates that it has two parts, whether the Appellate Tribunal was right in holding that in computing the income from property the premises 3, Gun Foundry, possessed an annual value and whether the Appellate Tribunal was right in disallowing the vacancy remission and other deductions in respect of that property.
[434C E] Unless the property fall within the scope of Section 22 there was no occasion for considering the assessee 's claim to the deductions.
The High Court also, when considering the reference, examined the question in its bifurcated character.
But although bifurcated, the thrust of the question was directed to the consideration of the deductions claimed by the assessee.
Whether the property possessed an annual value was necessary to determine solely for the purpose of considering the claim to deductions.
Unless the assessee was interested in those deductions it would not have asked for a finding that the property possessed an annual value.
The High Court, was, therefore, right in examining both parts of the question and in determining whether the property had an annual value and the deductions claimed were permissible.
[434E G] The High Court had to consider the first part of the question because that was the very case of the assessee throughout from the earliest stage of the proceeding.
The need for the determination whether the property has an annual value arises only if it is found that on the terms of the statute the assessee is otherwise entitled to the deductions claimed by him.
If those deductions are not permissible under the relevant section, no question arises of examining whether the property has an annual value.
Viewed in that light, the determination of the question whether the property has an annual value falls into its proper place.
[434G H, 435A] 2.
It is not open to the Revenue to contend that even though the claim to deduction must otherwise fail, the question whether the property has an annual value must still be considered.
If the Revenue intended that the High Court should determine whether the property had an annual value as a question independent of its finding on the admissibility of the deductions, the Revenue should have applied to the Appellate Tribunal for a reference to the High Court accordingly.
It did not ask for a reference and, therefore it is not entitled to raise that contention now.
[435A C] However, the only way of looking at the case, is whether on the assumption that the property has an annual value and falls within the scope of Section 22, the assessee is entitled to the deductions under Sections 23 and 24.
If he is entitled to any of those deductions, then in order to establish the foundation in which the deductions can be rooted it will be necessary to determine whether the property possesses an annual value.
That is what the High Court did, and the observations made by it must be construed accordingly.
It may be that the deduction to which the assessee is found entitled runs to a far smaller figure than the annual value property attributable to the property.
In that event the consequence will be a net annual value of some significance.
And this will be the consequence notwithstanding that 430 the reference is at the assessee 's instance and no reference at all has been brought by the Revenue.
The result appears anomalous, but after all it is for the assessee to choose whether or not he wishes to take a reference to the High Court, and if he is found entitled to even one of the deductions claimed by him and effect cannot be given to that claim without the annual value of the property being computed he has only to thank himself.
[435C F] 3.
The High Court, on a reference before it, does not act as a court of appeal.
The jurisdiction is advisory and no more.
The High Court is empowered to decide the question of law referred to it, and to return its answer to the Appellate Tribunal.
The Appellate Tribunal then takes up the appeal and disposes it of conformably with the answer returned by the High Court.
It is not part of the jurisdiction of the High Court to interfere and modify or set aside the appellate order of the Tribunal.
[435F H] 4.
The proviso to Section 23 (1) of the Income Tax Act, 1961 can be availed of only if the property is in the occupation of a tenant.
It would seem so on the language of the proviso.
The assessee does not rest his claim on any other provision of law.
In the circumstances, the High Court is right in denying the claim in respect of municipal taxes.
[436G H] 5.
The provisions of the Income Tax Act relating to the charge on income apply in relation to a specific assessment year and the provisions of the Act providing for the computation of the chargeable income (which includes taking into account permissible deductions in the computation of the income chargeable under different heads) apply, in the absence of anything to the contrary, in relation to the relevant previous year.
The total income of the previous year needs to the computed, and the different provisions relating to the computation of income must be read and applied in the context of the facts and circumstances obtaining during that year, unless the context suggests the contrary.
Consequently, when reading s.24(2) (ix) of the Income Tax Act, 1961 which speaks of property which is let and which was vacant during a part of the year, the Court must read it to mean property which was let during the previous year and was vacant during a part of the year.
It cannot refer to property which was not let at all during the previous year.
[437D E] In the present case, there is no evidence to show that it was ever given out by the assessee that the property was available for letting.
The assessee is not entitled to the deductions claimed by it in respect of municipal taxes and a vacancy remission.
[437F] Maharajadhiraja of Darbhanga vs Commissioner of Income Tax, Bihar and Orissa, ; distinguished.
|
N: Criminal Appeal No. 349 of 1979.
Appeal by Special Leave from the Judgment and order dated 27/28 9 1977 of Bombay High Court in Criminal Appeal No. 593/76.
S.D. Dashme, V.N. Ganpue, Mrs. V.D. Khanna, C.K. Ratnaparkhi and Miss Geeta Sharma for the Appellants.
M.C. Bhandare and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against a judgment dated 27th/28th of September, 1977, of the High Court of Maharashtra upholding the conviction of the six appellants recorded by the learned Sessions Judge for two offences under section 302 read with section 149 and of one under section 148 of the Indian Penal Code, the sentence awarded being imprisonment for life on each of the first two counts and of rigorous imprisonment for one year on the third with a direction that the sentences shall run concurrently.
The first appeal in the High Court was originally heard by Vaidya and Sawant, JJ., who differed with each other on the judgment to be rendered, Vaidya, J., holding that the appeal merited dismissal and Sawant, J., being of the opinion that it deserved acceptance in full.
The case was therefore laid under section 392 of the Code of Criminal Procedure before Apte, J., who concurred with Vaidya, J., so that the appeal stood dismissed by the impugned order.
Certain facts are not in dispute and may be stated at the outset.
The occurrence took place on the 11th of November, 1974, in village Kole to which all the appellants except Khashaba (appellant No. 5) belong, Appellants Nos.
1 to 4 and 6 live jointly in a house which abuts on a road 14 feet wide.
Opposite that house lies the one belong 313 ing to the two unfortunate persons who lost their lives as a result of the occurrence which is said to have taken place in consequence of inimical relations between the accused and the opposite party.
The waste water emanating from the house of appellant No. 1 had been flowing towards the other side of the road and seeping into the western wall of the house of the deceased.
This was one of the factors leading to animosity between the parties, another being that the family of the deceased had earlier sold to a third person some land which they wanted to re purchase but were thwarted in their design by the accused who were instigating the vendee not to re sell the land to the deceased.
The deceased were related to five of the eye witnesses as would appear from the following pedigree table: Anandrao | | ______________________________________________ | | | | Abasahed (eye Shripati witness (PW 19) | | ____________________________________________________ | | | | | | | | | | | | | | | Nivas Balasaheb Bhimrao Uttam Jayakar (deceased) (deceased) (eye witness (eye (eye =Lakshmi =Droupadi PW 12) Witness witness (eye witness (eye witness PW 13) not PW 10) PW 11) produced) The relationship inter se between accused appellants Nos. 1 to 4 and 6 is shown in the table below along with the weapons of offence said to have been wielded by each of them and an absconding accused during the occurrence : Bhimrao (appellant No. 1 axe) | | _________________________________________ | | | | | | Anna Banda alias Maruti Kisan (appellant (appellant No. 3 stick) (appellant No. 2 | No.4 axe stick) | _______________________________ | | | | Dhondiram Shamrao (appellant No. 6 stick) (absconding accused stick) 314 Khashaba accused No. 5 is said to be a friend of the family of the other accused and belongs to another village.
He was said to be armed with a stick at the time of the occurrence.
The prosecution case may be stated thus.
On the fateful day Nivas deceased left his house at about 10 A.M. for Karad where he wanted to have himself medically checked up.
He returned home at about midday and told his wife that he had been driven back by Anna appellant No. 2.
By then Balasaheb deceased also came to his house from the sugar factory where he was working.
It was at this juncture that the two brothers heard abuses being hurled at them by all the accused and after emerging from their house picked up two small sticks and went towards the accused.
A scuffle was imminent between the two contending parties when Bhimrao Kadam PW 20 who hails from another village Lying about a mile away and who was then returning home from his field intervened, separated them, disarmed the two deceased and threw away the sticks which he snatched from them before continuing his journey.
At about 2 P.M. all the accused entered the house of the deceased, armed as aforesaid, dragged them out of it on to the road and started beating them with their respective weapons.
Lakshmi PW 10 and Droupadi PW 11 intervened and received injuries at the hands of the accused.
In the meantime Bhimrao PW 13, Uttam PW 14 and their brother Jayakar who had been working in their field and were informed by a boy about the assault on the deceased, came running to the place of occurrence but they too were beaten up by the accused who then made good their escape.
Jayakar brought a motor vehicle from Islampur and took his four injured brothers as well as the two ladies to the Civil Hospital there.
In the meantime Bhimrao appellant No. 1 reached police station Islampur where he complained to Police Sub Inspector Pandurang that he (appellant No. 1) and his family members had been attacked by the party of the deceased.
On learning that the opposite party had arrived at the local Civil Hospital, the Police Sub Inspector reached the Hospital at about 8 P.M. and recorded the statement (exhibit 55) of Bhimrao PW 12 which forms the basis of the formal first information report registered at the police station.
Under the advice of the Medical officer, Islampur, the injured left the same evening for the Civil Hospital at Sangli on the way to which Nivas and Balasaheb expired.
On return to the police station Pandurang PW 24 arrested Bhimrao appellant No. 1. 315 Lakshmi PW 10 was examined on the date of the occurrence it self by Dr. Bhaskar PW 17 and was found to have in the web connecting the right thumb and the index finger a muscle deep incised wound having the dimensions 1"x1/4".
Droupadi PW 11 was examined by another doctor on the same day but she was not produced at the trial for the reason that she had in the mean time been transferred to Nagpur.
She was examined again on the 18th of November, 1974, by Dr. Shridhar PW 14 who found that on the mid outer aspect of her left thigh was located a blue black discolouration having a probable duration of eight days.
Bhimrao PW 12 was examined by Dr. Kantilal Shah PW 16 on the 11th of November, 1974, at the Civil Hospital, Sangli, and was found to have suffered six injuries consisting of a scalp deep incised wound located on the central parietal area and having the dimensions 3" x 1/4", two confused lacerated wounds located over the same area, two contusions and an abrasion.
The same doctor examined Uttam PW 13 on the same day when the latter was found to have on his person five injuries consisting of two contused lacerated wounds located in the head and three contusions on other parts of the body.
Appellants Nos.
1 to 3 were examined by Dr. Shridhar PW 14 on the 11th of November, 1974 at the Civil Hospital, Islampur.
Bhimrao appellant No. 1 had on his person three injuries consisting of a contusion on the right forearm having the dimensions 8 cm.
x 5 cm., a weal mark on the right shoulder blade and an abrasion.
Anna appellant No. 2 was found to have suffered eleven injuries consisting of six lacerated wounds, two contusions, two weal marks and one abrasion, only one of them, i.e., a lacerated wound, being located on a vital part (the head).
Maruti appellant No. 3 had an incised and a lacerated wound on the head and another lacerated wound, two weal marks and a contusion on other parts of the body.
The injuries so far described and found on various members of the opposing parties were presumably all simple in nature.
Dr. Digambar Joshi PW 15 carried out the post mortem examination of the two dead bodies on the 12th of November, 1974, Nivas deceased was found to have suffered four external injuries two of which were bone deep contused lacerated wounds located in the head region.
According to the doctor the scalp was all 'boggy ' and the injuries were 'fresh '.
The internal damage to the head, the doctor noted, consisted of an extensive haematoma on the scalp, multiple fractures of the left temporal and parietal bones, fracture of the right frontal blade, fracture of the middle cranial fossa on the right side and extradural haema 316 toma on the right fronto parietal region, the left temporal region and the left fronto parietal region.
In the opinion of the doctor the deceased must have become unconscious immediately after the receipt of the injuries which were inflicted with force and were sufficient in the ordinary course of nature to cause death Balasaheb deceased was found by the same doctor to have suffered four external injuries two of which were located in the head region, one being a contused lacerated wound and the other an incised wound.
The right temporal region, according to the doctor, was 'boggy ' and the injuries were 'fresh '.
The internal damage to the head, the doctor noted, consisted of an extensive haematoma under the scalp, numerous fractures of the right and left frontal bones, right and left parietal bones and the right temporal bone, congestion of the cortical vessels and bleeding in the brain substance.
The right from to parietal region was found by the doctor to be soft and lacerated.
The brain matter, according to him, was coming out.
He was categorical in stating that the death must have been instantaneous and that the injuries were individually sufficient to cause death in the ordinary course of nature.
24 witnesses were examined at 'the trial in support of the prosecution case.
They included five eye witnesses, namely, Lakshmi PW 10, Droupadi PW 11, Bhimrao PW 12, Uttam PW 13 and Aba saheb PW 19, all of whom gave substantially the same version of the occurrence as has been set out above.
Bhimrao Kadam PW 20 deposed that at about noon on the fateful day he was returning home from his fields which lie only at a distance of about 250 feet from the houses of the parties, when he found appellants Nos. 2, 3 and 4 exchanging abuses with the two deceased who were armed with sticks.
According to the witness he disarmed the deceased and threw away the sticks on to the roof of their house.
The witness claimed to have gone away after advising both the parties to settle their disputes amicably.
He then testified to having met Bhimrao PW 12, Uttam PW 13 and their brother Jayakar when he returned to his field the same day.
He further stated that they were running but were not armed.
The rest of his testimony in chief may be summarised thus: "I again heard shouts from the houses of the parties.
I again came back to the road in between their houses and saw that Nivas, Balasaheb, Uttam and Bhimrao had injuries and they were Lying on the road.
All these injured were unconscious and their clothes were stained with blood.
317 Lakshmi and Droupadi were by their side.
The accused were not present at that time.
This was at about 2.30 P.M. Or 3 P.M." When asked in cross examination as to what was the exact place where he met the brothers of Nivas, he replied: "I immediately started to my field and I met them at a distance of about 50 or 100 feet.
I again heard the noise after a very short time after reaching the field.
" The witness was questioned about what he saw on reaching the place of occurrence for the second time and what transpired later.
He stated : "Uttam and Bhimrao were lying on the road near the door of the house of the accused.
Nivas was Lying in the middle of the road opposite to the door of the accused.
There were blood stains on the road at the place.
Jayakar was present at the scene of offence and I told him to inform the police at Islampur.
Afterwards l went to the house of the accused.
I found that there were injuries on accused No. 2 Anna and accused No. 3 Banda.
Accused No. 2 Anna was Lying unconscious.
Banda told me that Nivas and all his brothers came to their house and assaulted them." The last question put to him in cross examination was whether it was true that Bhimrao PW 12, Uttam PW 13 and their brother Jayakar were armed with sticks and axes.
He replied that they had something (in their hands) but that he could not say if they had sticks and axes.
The defence case may be summed up as follows.
Feelings of animosity existed between the two opposing families for two or three years prior to the date of the occurrence as alleged by the prosecution.
On that date there was an exchange of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on the other when the latter were about to assault the former but could not do so on account of the intervention of Bhimrao Kadam PW 20.
Soon afterwards the two deceased and their three brothers assaulted appellants Nos. 1 to 3 with sticks and axes at the latter 's house when some of the assailants were disarmed and beaten back.
Appellants Nos.
4 to 6 were not present at the scene of occurrence and had been involved in the case merely because they were related to the other appellants by ties of blood or friendship.
318 7.
The learned Sessions Judge was of the opinion that the incident in which the two contending parties exchanged abuses and which came to a close when Bhimrao Kadam PW 20 intervened provided the motive for the assault in which the two deceased lost their lives.
While examining the ocular testimony he arrived at the findings detailed below: (a) That part of the prosecution story according to which the two deceased were dragged out of their house by the seven accused was never put forward during the investigation and was concocted to sene as an improvement over the version given earlier.
(b) The eye witnesses had given details of the occurrence which were omitted from their statements made to the police but no significance could be attached to this aspect of the matter.
(c) Lakshmi PW 10, Droupadi PW 11, Bhimrao PW 12 and Uttam PW 13 were certainly present at the occurrence as is made out from the fact that they were found to have injuries on their person immediately thereafter.
Assurance to the presence of Abasaheb PW 19 at the time and place of occurrence is also available in the fact that his house adjoins that of the deceased.
(d) The incident in which abuses were exchanged provided the motive for the party of the accused to assault their opponents rather than the other way round, because the deceased had really had an upper hand in that incident.
lt would also be natural, in this view of the matter, for appellants Nos.1 to 3 to summon help and open a concerted attack.
The participation of all the accused therefore in the occurrence was natural and probable.
(e) The occurrence took place on the road Lying in between the respective houses of the parties.
(f) The circumstances that two persons from the side of the eyewitness lost their lives and that four other eye witnesses belonging to the same family received injuries are sufficient to suggest that it was the party of the appellants who were the aggressors even though appellants Nos. 1 to 3 were also injured during the occurrence; and the fact that all the eye witnesses were unreliable in relation to the dragging part of the prosecution story is immaterial, their testimony being otherwise credible.
In this connection it has to be borne in mind that the party of the accused were able to inflict serious injuries on their opponents and themselves escaped with comparatively a minor beating.
There was thus no right of private defence available to the accused.
319 (g) Bhimrao PW 12 and Uttam PW 13 reached the place of occurrence after the fight between the party of the accused on the one hand and the two deceased on the other was already over and that in respect of the injuries caused to Lakshmi PW 10, Droupadi PW 11, Bhimrao PW 12 and Uttam PW 13 the party of the appellants had a right of private defence.
It was in these premises that the learned Sessions Judge convicted and sentenced the six appellants as aforesaid and acquitted them of the minor charges which had been framed against them in relation to the injuries caused by them to the four eye witnesses just above named.
In the High Court all the three judges who considered the appeal fully reappraised the evidence and while Vaidya and Apte, JJ., arrived at more or less the same conclusions as the learned Sessions Judge, Sawant, J., recorded diametrically opposed findings although he found Bhimrao Kadam PW 20 to be a wholly independent and therefore a reliable witness.
Those findings were : (i) There is no reliable evidence whatsoever to support the prosecution case that the accused were the aggressors.
on the other hand, the following five circumstances point to the contrary : (a) The concoction of that part of the prosecution story according to which the deceased were dragged out of their house by the appellants.
(b) During the incident in which abuses were ex changed, appellants Nos. 2 and 3 were merely sitting on the door steps of their house while the two deceased had gone there armed with sticks in an attempt to assault their adversaries.
(c) "Immediately after" that incident came to a close on the intervention of Bhimrao Kadam PW 20, the deceased were reinforced by their three brothers and the occurrence commenced "immediately thereafter".
(d) Bodies of the persons injured on the side of the deceased were found Lying nearer the house of the accused than that of their opponents.
(e) Appellants Nos. 1 to 3 also received injuries which were sufficiently serious and numerous.
(ii) Merely because two of the opponents of the appellants died and the number of persons injured on 320 their side was greater than on that of the appellants, it will not follow that the latter were the aggressors.
The case has been argued before us at great length by learned counsel for the parties and the two main questions requiring determination are: (A) Has the prosecution proved beyond reasonable doubt that the party of the appellants were the aggressors and that it is not made out on the record that the latter may well have acted in exercise of the right of private defence? (B) If the answer to question (A) is in the affirmative, whether the participation of all the appellants in the occurrence is satisfactorily made out ? 10.
On question (A) we have no hesitation in agreeing with the conclusion arrived at by the learned Sessions Judge and Vaidya and Apte, JJ., and we shall record our reasons briefly.
The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out from the deposition of Bhimrao Kadam PW 20 who is no doubt a wholly independent and reliable witness.
When he was attracted to the place of occurrence by a noise which reached him in his field after he had gone there subsequent to his witnessing the three brothers of the deceased running towards their house, he found that Bhimrao PW 12, Uttam PW 13 and their other two injured brothers were all Lying unconscious on the road where Lakshmi PW 10, Droupadi PW 11 and Jayakar were also present.
It is to be noted that the heads of Nivas and Balasaheb had been smashed to pulp so that in all probability neither of them could have moved a step before falling down after the receipt of the injuries which were detected on their dead bodies by Dr. Digambar Joshi PW 15.
We have to take it for granted there fore that they were hit where they fell.
The circumstance that their other two injured brothers were also found Lying on the road lends further strength to our conclusion that the occurrence took place on the road itself and not at the house of the appellants.
It may also be safely assumed, apart from the fact that all the witnesses say so, that Bhimrao PW 12, Uttam PW 13 and Jayakar were not with the deceased at the inception of the fight and were, on the other hand, working their fields.
This follows from the testimony of Bhimrao Kadam PW 20 which bears repetition on the point.
He stated that while he was returning from his house to the fields at 2 .30 or 3 P.M. he found the three brothers of the deceased 'running ' which obviously mean 321 running towards their house.
It is the case of Bhimrao PW 12 and Uttam PW 13 that they were informed in their field by a boy named Mehar that their brothers were being attacked by the party of the appellants and that it was on that account that they ran towards their house.
This assertion fully fits in with the narration of events by Bhimrao Kadam PW 20.
Another very decisive circumstance is the nature of the injuries received by the two contending parties.
If the party of the deceased were the aggressors and had made a concerted attack on the appellants who were taken unawares there is no reason why the former should have come out second best in the combat.
The fact that practically all the injuries received by the deceased were located in the head region and were inflicted with great force makes it highly probable that it was they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse.
The fact that their womenfolk were also injured during the occurrence makes it probable that the ladies had to intervene because the fight was unequal and their respective husbands found in difficult to cope with it.
Another inference which may well be drawn from the consequences of the combat is that Bhimrao PW 12, Uttam PW 13 and their brother Jayakar probably reached the place of occurrence while their brothers were being belaboured and that it was at that stage that the three newcomers entered the arena and took up cudgels on behalf of their hapless family members.
That is the only reasonable way, it appears to us, in which all the injuries suffered by the combatants on the two sides can be explained.
It is true, as pointed out by Sawant, J., as well as the learn ed Sessions Judge, that the eye witnesses have improved their case at the trial over the story which they put forward at the investigating stage and therefore prove their unreliability in material particulars; but then they are corroborated in certain other material aspects of their testimony by unimpeachable evidence in the form of the injuries suffered by the two sides, the place where they were inflicted and the consequences which flowed from them, and, in those aspects we cannot but believe them.
It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly.
But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end.
On the other hand the circumstances will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept y those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources.
And that is how we have accepted the eye witness account in part as stated above.
322 12.
We may here frankly state that the reasons given by Sawant, J., in holding that the party of the deceased were the aggressors do not commend themselves to us.
The fact that improvements were made by the eye witnesses on the earlier story and the dragging incident was introduced at the trial stage has already been noticed by us but, without more, it cannot be taken to mean that it was the party of deceased who set the ball rolling.
The incident in which abuses were exchanged between the two contending parties again does not lead to the inference that it was the party of the deceased who were guilty of aggression.
That incident no doubt provided the motive for the occurrence but such motive was attributable to both parties and perhaps more so to that of the appellants who must have felt humiliated by the show of force indulged in by the deceased.
It further appears to us that Sawant, J. misread the testimony of Bhimrao Kadam PW 20 when he remarked that the fight took place "immediately after" the exchange of abuses incident which had come to a close at the intervention of Bhimrao Kadam PW 20.
It is no doubt true that that witness did state in answer to a question in cross examination: "I immediately started towards my field and I met them at a distance of about 50 or 100 feet.
I again heard the noise after a very short time after reaching the field.
" The words "I immediately started towards my field" have no connection whatsoever with the incident in which abuses were exchanged.
In this connection we may refer to that portion of the evidence of the witness in which he categorically stated that that incident had taken place about midday when he was returning home from his field, that he left after the incident and that he met Uttam, Bhimrao and Jayakar "while I was again going back to my field.
" The inference is clear that after the incident in which abuses were exchanged, the witness had gone home to his village which lies at a distance of about a mile from the place of occurrence and that he was again returning to his field when he met the three brothers of the deceased which was, according to the witness, 'at about 2.30 or 3 P.M. '.
This misinterpretation of the evidence of Bhimrao Kadam PW 20 by Sawant, J., appears to us to have influenced the learned Judge in not a little measure in coming to the conclusion which he ultimately arrived at.
But then he was also not right, in our opinion, in inferring aggression on the part of the party of the deceased from the cir cumstance that "the bodies of the injured were found nearer the house of the accused than the house of the deceased".
It is true that Bhimrao Kadam PW 20 did assert: 323 "Uttam and Bhimrao were lying on the road near the house of the accused.
Nivas was lying in the middle of the road opposite to the door of the accused." But from this no inference such as has been drawn by the learned Judge is reasonably possible.
Admittedly the road has a width of only 14 feet and if two opposing parties, consisting in all of six to ten persons, engage themselves in violence against each other, the exact place where the members of each would be injured may not mean anything, especially if one of the parties is taken unawares and is unarmed.
In any case the fact that the road was a narrow one makes the circumstance relied upon by the learned Judge wholly innocuous.
The only other circumstance which he pressed into service in support of his conclusion that the accused appeared to have acted in exercise of the right of private defence was that they too "received injuries which were sufficiently serious and numerous" which does not appear to be an accurate statement of facts.
The injuries referred to by him were no doubt as numerous as those suffered by the other party; but then they cannot be classified as 'sufficiently serious '.
Except for one.
none of them was located on a vital part and all of them without exception were simple in nature, the injuries on the two deceased persons being in contrast practically all deadly.
Thus, the consideration of the ocular evidence coupled with the testimony of Bhimrao Kadam PW 20 and the circumstantial evidence, especially the medical part of it, lead us to an answer in the affirmative to question (A) posed above.
On the question of the participation of the appellants in the occurrence we have again to proceed with extraordinary caution in view of the fact that the eye witnesses are not only highly interested in exaggerating the number of the opposite party during the attack but have also been shown to have scant regard for truth when their selfish interests so demand.
In this view of the matter we consider it safe to hold that appellants Nos. 1 to 3 are proved beyond reasonable doubt to have taken part in the fight.
They are not merely named in that behalf by the eye witnesses but admit their participation in the occurrence which is further assured by reason of the fact that all three of them were found injured immediately thereafter.
The same is not true of the other three who have denied their presence at the time and place of the occurrence and about whose participation in the fight no other assuring factor is forthcoming.
It is true that according to Bhimrao Kadam PW 20, appellant No. 4 was present at the scene when the abu ses were exchanged but that fact is no guarantee of his participation in the occurrence which took place about a couple of hours later.
324 And no incongruity results from the exclusion of appellants Nos. 4 to 6 from the fight because the other three appellants would have as effectively caused all the injuries found on the two deceased and the two ladies all by themselves as if they were caused by them with the assistance of appellants Nos. 4 to 6.
In this view of the matter we are of the opinion that appellants Nos. 4 to 6 are entitled to the benefit of doubt in the matter of their participation in the occurrence.
We therefore accept the appeal in so far as they are concerned, set aside the conviction recorded against and the sentences imposed upon them by the courts below and acquit them of the charge in its entirety.
The appellants were convicted by the learned Sessions Judge of an offence under section 148 of the Indian Penal Code and of two offences of murder under section 302 read with section 149 of the Code.
The first offence, namely, that under section 148 of the Code, falls to the ground with the acquittal of appellants Nos. 4 to 6, and so does that under section 149 thereof.
It is however quite clear from the findings arrived at by us, especially those relating to the nature of the injuries suffered by the two deceased and the consequences resulting from them that the two offences of murder were committed by appellants Nos. 1 to 3 in furtherance of their common intention so that each one of them is liable to conviction on two counts under section 302 read with section 34 of the Indian Penal Code.
We hold accordingly and sentence each of those three appellants to imprisonment for life on each count with a direction that the two sentences of life imprisonment shall run concurrently.
Accordingly, the appeal fails in so far as they are concerned except in relation to the modification in the conviction and sentences as directed above.
| IN-Abs | Appellants Nos.
1 to 6 were charged and convicted for two offences under section 302 read with section 149 and one under section 148 of the Indian Penal Code for having caused the death of two persons.
Appellants Nos.
1 to 4 and 6 are inter related, while appellant No. 5 is Their friend, and the two deceased are brothers.
Appellants Nos.
1 to 4 and 6 lived Jointly in a house which abutted on a road 14 feet wide.
Opposite, their house lay the one belonging to the two deceased.
The waste water emanating from the house of the appellant No. 1 had been flowing towards the road and seeping into the western wall of the house of the deceased.
This resulted in inimical relation between the two parties.
Animosity also prevailed among the parties on account of the fact that The family of the deceased had earlier sold to a third person some land which they wanted to repurchase but were thwarted in their designs by the appellants who were instigating the vendee not to re sell the land to the deceased.
The prosecution alleged that on the fateful day, in the morning there was a dispute and altercation between the two deceased and the appellants.
The incident was noticed by PW 20 who intervened and separated them disarmed the two deceased and threw away the sticks which he snatched from them.
At about 2 P.M.
On the same day all the appellants entered the house of the deceased armed with axes and sticks dragged out the deceased on the road and started beating them with their respective weapons.
PW 10 and PW 11, the wives of the deceased intervened and they also received injuries at the hands of the appellants.
In the meantime PW 13, PW 14 and their brother Jayakar who came to the place of occurrence were beaten by the appellants who thereafter made good their escape.
The four injured brothers and the two ladies were removed to the Civil Hospital.
The two deceased succumbed to their injuries later.
Meanwhile appellant No. 1 reached the police station and he complained to the sub inspector (P.W. 24) that he and his family members had been attacked by the party of the deceased.
On learning that the opposite party had arrived at the local Civil Hospital, the sub inspector reached the hospital and recorded the statement (exhibit 55) of P.W. 12.
This formed the basis of the first information report registered at the police station.
On returning to the police station the sub inspector arrested appellant No. 1.
310 The case of the appellants was that feelings of enmity existed between the two opposing families for two or three years prior to the date of the occurrence, that on that dale there was exchange of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on the other when the latter were about to assault the former but could not do so on account of the intervention of PW 20s that soon afterwards the two deceased and their three brothers assaulted appellants Nos. 1 to 4 with sticks and axes at the latters house when some of the assailants were disarmed and beaten back, and that appellants Nos.
4 to 6 were not present at the scene of the occurrence and had been involved in the case merely because they were related to the other appellants by ties of blood or friendship.
The Sessions Judge was of the opinion that the incident in which the two contending parties exchanged abuses and which came to a close with the intervention of PW 20 provided the motive for the assault in which the two deceased lost their lives and that the eye witnesses had given details of the occurrence which were omitted from their statements made to the police but that no significance could be attached to this aspect of the matter.
He further held that the occurrence took place on the road Lying in between the respective houses of the parties, that the participation of all the accused in the occurrence was natural and probable, that the party of the accused were able to inflict serious injuries on their opponents and themselves escaped with comparatively a mild beating and that therefore, there was no right of private defence available to the appellants.
On this finding the Sessions Judge convicted and sentenced the six appellants.
The appeal to the High Court was heard by a Division Bench, but on Account of difference of opinion among the Judges, the matter was referred to a third Judge and the appeal was dismissed in accordance with the majority opinion.
All the three Judges re appraised the evidence and while the majority arrived at the same conclusion as the Sessions Judge, the third Judge came to the finding that there was no reliable evidence to support he prosecution case that the accused were the aggressors.
In the appeals to this Court on the questions: (a) Whether the prosecution had proved beyond reasonable doubt that the party of the appellants were the aggressors and whether it was made out from the records that the latter may have acted in exercise of the right of private defence, and (b) whether the participation of all the appellants in the occurrence was satisfactorily made out: ^ HELD: (a) (i) The consideration of the ocular evidence coupled with the testimony of PW 20 and the circumstantial evidence especially the medical part, of it, prove beyond reasonable doubt that the party of the appellants were the aggressors.
[323F] (ii) The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out from the deposition of PW 20 who is no doubt a wholly independent and reliable witness.
He was attracted to the place of occurrence by a noise which reached him in his field after he had gone there subsequent to his witnessing the three brothers of the deceased running towards their house.
The circumstance that their other two injured brothers were also found lying on the road lends further strength to the conclusion that the occurrence took place on the road 311 itself and not at the house of the appellants.
It may also be safely assumed, apart from the fact that all the prosecution witnesses say so, that PW 's 12, 13 and Jayakar were not with the deceased at the inception of the fight and were, on the other hand, working in their fields.
[320 D G] (iii) If the party of the deceased were the aggressors and had made a concerted attack on the appellants who were taken unawares there is no reason why the former should have come out second best in the combat.
The fact that practically all the injuries received by the deceased were located in the head region and were inflicted with great force makes it highly probable that it was they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse.
[321 B] (iv) The fact that the women folk of the deceased were also injured during the occurrence makes it probable that the ladies had to intervene because the fight was unequal and their respective husbands found it difficult to cope with it.
[321 G] (v) Another inference which may well be drawn from the consequences of the combat is that PWs 12 and 13 and their brother Jayakar probably reached the place of occurrence while their brothers were being belabored and that it was at this stage that the three new comers entered the arena and took up cudgels on behalf of their hapless family members.
[321 D] (vi) It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly.
But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end.
On the other hand the circumstance will be a goo reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources.
[321 G] (vii) The road has a width of only 14 feet and if two opposing parties consisting in all of six to ten persons, engage themselves in violence against each other, the exact place where the members of each would be injured may not mean anything especially if one of the parties is taken unawares and is unarmed.
[323 B] In the instant case, none of the injuries suffered by the appellants (except for one) was located on a vital part and all of them without exception were simple in nature, the injuries on the two deceased persons being in contrast practically all deadly.
[323 D] (b)(i) Appellants Nos.
4 to 6 are entitled to the benefit of doubt in the matter of their participation in the occurrence.
[324 B] (b) (ii) Appellants Nos. 1 to 3 are proved beyond reasonable doubt to have taken part in the fight.
They are not merely named in that behalf by the eye witness but admit their participation in the occurrence which is further assured by reason of the fact that all three of them were found injured immediately thereafter.
The same is not true of the other there who have denied their presence at the time and place of the occurrence and about whose participation in the fight no other assuring factors is forthcoming.
[323 G] 312 (iii) According to PW 20, appellant No. 4 was present at the scene when the abuses were exchanged but that fact is no guarantee of his participation in the occurrence which took place about a couple of hours later.
No incongruity results from the exclusion of appellants Nos. 4 to 6 from the fight be cause the other three appellants would have as effectively caused all the injuries found on the two deceased and the two ladies all by themselves as if they were caused by them with the assistance of appellants Nos. 4 to 6.
[323H 324A] (c) The offence under section 148 of the Code falls to the ground with the acquittal of appellant Nos. 4 to 6, and so does that under section 149 thereof.
The two offences of murder were committed by appellants Nos. 1 to 3 in furtherance of their common intention so that each one of them is liable to conviction on two counts under section 302 read with section 34 of the Indian Penal Code.
[324C D]
|
Civil Appeals Nos.
1309 1310 of 1978.
Appeals by Special Leave from the Judgment and Order dated 29 6 1978 of the Patna High Court in C.W.J.C. Nos.
204 205 of 1978.
L. M. Singhvi, and section K. Verma for the Appellants.
Dr. Y. section Chitale, section K. Sharma, R. K. Jain, R. A. P. Singh, R. P. Singh and B. P. Singh for the Respondent Nos.
3 10, 12, and 13 in CA 1309/78.
R. K. Jain and R. A. P. Singh for RR 4, 6, 7 & 9 in CA 1310/78.
R. K. Garg, R. A. P. Singh and B. P. Singh for the RR 8 in both the appeals.
D. Goverdhan for the R 1 in both the appeals.
The Judgment of the Court was delivered by GUPTA J.
The controversy in these two appeals by special leave relates to the question of seniority between the direct recruits and the promotees in the rank of Deputy Superintendent of Police in the Bihar Police Service.
The appellants the same persons in both appeals are promotees who question the correctness of the judgment of the Patna High Court by which the High Court allowed the two writ petitions made by two different groups of direct recruits challenging the gradation list of permanent Deputy Superintendents of Police published on February 24, 1978.
Fifty four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent "from the dates of their creation" by the Government of Bihar in December, 1977.
Earlier, the Government had decided that continuous officiating service of the promoted Deputy Superintendents of Police in these posts should be the basis of their seniority.
Following this decision, after the temporary posts had been made permanent, the gradation list in question was prepared and published.
Admittedly there is no statutory rule governing seniority inter se of direct recruits and promotees.
In the absence of any such rule 453 prescribing a different criterion, it cannot be disputed after Patwardhan 's case(1) that continuous officiation is a reasonable basis for fixation of seniority.
The High Court, however, allowed the writ petitions filed by the direct recruits on the view that the gradation list was invalid as it infringed rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution of India.
Rule 3 is in these terms: "The Governor shall decide in each year to number of vacancies to be filled in that year.
Provided that the number of vacancies to be filled by promotion in the service in any one year shall not, unless the Governor is satisfied that there is not a sufficient number of officers fit for promotion, be less than half the total number of vacancies to be filled in any such year.
" Before we proceed to consider the scope of this rule and its effect on the question of seniority in this case, it would be necessary to refer to a few more provisions of the Bihar Police Service (Recruitment) Rules and some facts forming the background to the controversy.
It is the Governor 's duty under Rule 3 to decide "in each year" the number of vacancies in the Bihar Police Service required to be filled "in that year".
The proviso to the rule states that the promotees be to be appointed in any particular year shall not be less than half of the total number of vacancies to be filled in that year unless sufficient number of officers fit for promotion is not available.
It is important to remember that rule 3 does not prescribe a fixed quota for each of the two categories, direct recruits and promotees, but only insists that at least half the vacancies in any year should be reserved for the promotees.
Rule 2 of these Rules states that recruitment to Bihar Police Service shall be made by direct recruitment and by promotion.
A third source of recruitment was later added in the Rules in 1975 with which we are not concerned in this case.
The Rules as regards direct appointment are included in part II of the Rules.
Rules 22, 23 and 24, occurring in part III of the Rules lay down the method of recruitment by promotion.
Under rule 22 a preliminary selection of officers for promotion is made in each Range by Range Selection Board.
Those selected by the Range Selection Board have to appear before the Inspector General 's Selection Board.
The Inspector General 's Selection Board has to nominate for appointment twice as many candidates as there are vacancies to be filled by 454 promotion and to send all relevant papers relating to the candidates nominated by it to the Bihar Public Service Commission and, at the same time, submit a list of such candidates to the Governor.
The Public Service Commission after examination of the Papers is required to submit its recommendations to the Governor.
Rule 24 says that the final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by the Public Service Commission.
The appellants in both these appeals were appointed as Inspectors of Police in 1953.
After working as Inspectors for about 12 years, they were promoted by notification issued on June 16, 1965 to officiate as Deputy Superintendents of Police.
Before promotion they were subjected to the scrutinies prescribed by rules 22, 23 and 24 of the Bihar Police Service (Recruitment) Rules, 1953.
Rule 648 B of the Bihar and Orissa Police Manual (Volume I) requires a promoted Deputy Superintendent of Police to pass an examination in accounts.
This rule further says that a promotee shall be on probation for one year and at the end of the period, if he has passed the said examination and is found fit, he will be confirmed.
The rule adds that if he has officiated as Deputy Superintendent for one year or more he may be confirmed without further probation on his passing the examination in accounts.
The appellants passed the examination and thus satisfied all the requirements for confirmation.
However the posts in which they were officiating were temporary posts.
It appears from a memorandum issued by the State Government on December 28, 1955 that the Government considered it "desirable that all temporary posts of all categories, gazetted as well as non Gazetted, which are in existence at present and which will be necessary for an indefinite period should be made permanent with effect from 1st April, 1956".
This was followed by another memorandum on September 9, 1967 addressed to "All Departments of Govt." and "All Heads of Departments" on the "Policy regarding making temporary posts under Govt.
in existence from a long period, permanent" which said that the Government had taken a decision that "steps should immediately be taken . to make all those posts permanent which are in existence for more than three years and are likely to continue in future.
" A third memorandum on the subject issued on November 19, 1971 expressed dissatisfaction that "no effective step" had been taken to make the temporary posts permanent and requested all heads of departments to take "necessary steps" "immediately" to implement the Government decision.
Apparently even the third memorandum failed to have any effect.
455 By a notification dated August 22, 1974 the State Government confirmed appellants and other similarly situated officers as Deputy Superintendents of Police with effect from dates which according to these officers were arbitrarily chosen.
On September 1, 1974 the Government published a combined gradation list in which these promotees were placed even below the direct recruits who were appointed in 1974.
The appellants challenged this gradation list in the Patna High Court by a writ petition (C.W.J.C. 2011 of 1976).
While that writ petition was pending, the Government of Bihar constituted a high power committee, known as the Saran Singh Committee, to assess the promotional prospects of different State services, examine the problem of "stagnation", and suggest remedial measures.
The recommendations made by the Committee were accepted by the Government by resolution dated April 11, 1977.
One of the decisions taken by the Government upon the recommendations of the Committee, which were set out in the schedule annexed to the resolution, was as follows: "The seniority of promoted officers vis a vis direct recruits should be determined by taking into account the continuous officiating service instead of on the basis of the length of substantive service in the cadre.
" On behalf of the State Government it was submitted before the High Court at the hearing of the aforesaid writ petition (C.W.J.C. 2011 of 1976) that the Government proposed to re examine the gradation list in the light of the Committee 's recommendations.
On this statement the High Court directed the State Government to re examine the matter and prepare a fresh gradation list.
None of the parties appealed against this order.
Thereafter, on December 30, 1977, the State Government wrote to the Accountant General, Bihar, saying that on the basis of the Government decision that continuous officiating service of the promoted Deputy Superintendents of Police was to be the basis of their seniority, the Government had decided that "the temporary posts created in the Home (Police) Department would be made permanent from the dates of their creation." Accordingly 54 temporary posts brought into existence between 1948 and 1970 were converted into permanent posts by Government order No. 16161 also dated December 30, 1977.
By notification dated January 7, 1978 the State Government appointed on probation the officers who had been officiating in those posts with effect from the dates mentioned against their names in the notification and the notification issued previously promoting these officers on officiating basis was cancelled.
The dates from which these officers were said to have been appointed 456 on probation were the dates of their promotion as officiating Deputy Superintendents of Police.
The names of the appellants figure against serial numbers 23, 24 and 25 in the list given in the notification dated January 7, 1978.
It is difficult to see why this method of converting the officiating appointment into one on probation was thought necessary.
Rule 648 B of the Bihar and Orissa Police Manual (Volume I) to which reference has been made earlier in this judgment provides that if a promotee has officiated as Deputy Superintendent for one year or more, he may be confirmed without further probation on his passing the examination in accounts.
It has been already stated that all the appellants had passed the examination.
However, the revised gradation list which is under challenge was thereafter issued.
This list, it was stated in a letter dated January 31, 1978/February 24, 1978 addressed by a Joint Secretary of the State Government to the Inspector General of Police, Bihar, Patna, had been "prepared on the basis of the date of appointment, officiating or permanent, whichever is earlier, in the Bihar Police in the light of Finance Department Resolution No. 3521 dated 11 4 77 and judgment of the High Court in C.W.J.C. No. 2011/76. " In the context of the present controversy two important facts which have to be kept in mind are: (i) the appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970) and (ii) by Government order dated December 30, 1977 fifty four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent from the dates these posts were created.
The only question here is whether there was anything wrong in fixing the inter se seniority of the promotees and the direct recruits on the basis of continuous officiation by the promotees.
It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power.
(see B. N. Nagarajan vs State of Mysore and Sant Ram Sharma vs State of Rajasthan(2).
In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees.
The determination of seniority on the basis of continuous officiation has been held valid in section B. Patwardhan 's case 457 (supra).
The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.
It is however contended on behalf of the respondents who were the writ petitioners in the High Court that rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution, though it is not a seniority rule, does not permit the course adopted in this case by the Government, namely, converting the temporary posts created between 1948 and 1970 into permanent posts in the year 1977 with effect from the dates on which the temporary posts had been created.
Under rule 3 the Governor has to decide in each year the number of vacancies to be filled in that year and to secure not less than half of the total vacancies for the promotees.
The argument is that for the year 1965 or for that matter for any year prior to 1977 when the notification under challenge was issued, the Governor had duly exercised his power under rule 3 in that very year, and adding to the number of existing permanent posts by an order made in a subsequent year after the Governor had ascertained the number of vacancies required to be filled and had them filled according to the ratio prescribed by rule 3, would disturb that ratio and contravene rule 3.
We are unable to accept this contention as correct.
In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created.
The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary.
The Governor while exercising his powers under rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965.
Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965.
In section G. Jaisinghani vs Union of India & Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation.
But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year.
Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be 458 filled by promotees.
What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year.
If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar.
Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.
In the view we have taken, it is unnecessary to consider two other subsidiary questions raised: (1) whether the cadre consisted only of permanent posts or included both permanent and temporary posts: according to the appellants the cadre should include both temporary and permanent officers in the absence of any rule to the contrary.
In this Judgment in reaching the conclusion stated above we have assumed that the cadre consisted of permanent officers only; (ii) Whether rule 3 has ever been followed since the Rules were framed in 1953; according to the appellants rule 3 has really not been observed in any of those years and that no question of contravention of the rule can therefore be raised in this case.
In the result we allow the appeals, set aside the judgment of the High Court and dismiss the writ petitions C.W.J.C. 204 of 1978 and C.W.J.C. 205 of 1978 filed in the High Court.
It appears from an affidavit sworn by Shri Ashok Kumar Sinha, Under Secretary, Home (Police) Department, on behalf of the State of Bihar on August 31, 1979 and filed in this Court on the same day that the gradation list in question contains certain mistakes; these shall be corrected by the concerned authority.
In the circumstances of the case we make no order as to costs.
N.K.A. Appeals allowed.
| IN-Abs | The appellants were appointed Inspectors of Police in 1953.
After working as Inspectors for about 12 years, they were promoted by notification dated June 16, 1965 to officiate as Deputy Superintendents of Police.
Before promotion they were subjected to the scrutinies prescribed by rules 22, 23 and 24 of the Bihar Police Service (Recruitment) Rules, 1953.
Rule 648 B of the Bihar and Orissa Police Manual (Volume I) requires a promoted Deputy Superintendent of Police to pass an examination in accounts.
The appellants passed the examination and satisfied all the requirements for confirmation.
However, the posts in which they were officiating were temporary posts.
Thereafter the Government by a notification dated August 22, 1974, confirmed the appellants and other similarly situated officers as Deputy Superintendents of Police with effect from the dates which according to these officers were arbitrarily chosen.
On September 1, 1974 the Government published a combined gradation list in which these promotees were placed even below the direct recruits who were appointed in 1974.
The appellants challenged this gradation list in the High Court by a Writ Petition and during the pendency of the said Writ, the State Government constituted "Saran Singh Committee", to assess the promotional prospects of different State services, examine the problem of "stagnation", and suggest remedial measures.
The recommendations of the committee were accepted by the State Government by Resolution dated April 11, 1977.
In the Writ Petition, the High Court directed the State Government to re examine the matter and prepare a fresh gradation list on the basis of the statement made by the Government in the light of the committees ' recommendations.
None of the parties appealed against this order.
By notification dated January 7, 1978 the State Government appointed on probation the Officers who had been officiating in those posts with effect from the dates mentioned against their names in the notification and the notification issued previously promoting these officers on officiating basis was cancelled.
The dates from which these officers were said to have been appointed on probation were the dates of their promotion as officiating Deputy Superintendents of Police.
The names of the appellants figured against serial numbers 23, 24 and 25 in the list given in the notification dated January 7, 1978.
The revised gradation list which is under challenge was thereafter issued.
451 The appellants questioned the correctness of the Judgment of the High Court which allowed the two Writ Petitions made by two different groups of direct recruits challenging the gradation lists of permanent Deputy Superintendents of Police on February 24,1978.
Accepting the appeal, ^ HELD: 1.
The appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970), and by the Government order dated December 30,1977 fifty four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent from the dates these posts were created.
[456D G] 2.
It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power.
[456 F G] B. N. Nagarajan vs State of Mysore , Sant Ram Sharma vs State of Rajasthan ; , referred to.
There is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees.
The determination of seniority on the basis of continuous officiation has been held valid in section B. Patwardhan 's case ; The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.
[456G H. 457A] 4.
In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created.
The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary.
The Governor while exercising his powers under rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965.
Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have effected the validity of the action taken by the Governor in 1965.
[457 F] section G. Jaisinghani vs Union of India & Ors. ; ; referred to.
Rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by proportion, should not be less than half of the total number of vacancies to be filled in any year.
Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring, that no less than half of the vacancies must be filled by promotees.
What the Governor had done in a previous year in exercise of his power under rule 3, if it was valid then is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year.
If for administrative reasons 452 such a measure was considered necessary, there is nothing rule 3 to suggest a bar.
Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less that half of the vacancies for the promotees, that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.
[457G H, 458A B] 6.
The gradation list contains certain mistakes, and these shall be corrected by the concerned authority.
[458F]
|
n the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court.
In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ.
No action appears to have been taken on this request because no such record appears to have been produced before the High Court.
Such silence militates against fair adjudication of the issues.
Just and fair adjudication must not only inform the administrative side of the High Court 368 but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.
[381 C F] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 991 of 1975.
From the Judgment and Order dated 25 9 1973 of the Himachal Pradesh High Court in Civil Writ Petition No. 158/71.
Yogeshwar Prasad, A. K. Srivastava and Mrs. Rani Chhabra for the Appellant.
Dr. section Chitale, R. N. Sachthey and section K. Dhingra for Respondent No. 1. section K. Mehta, P. N. Puri and EME Anam for Respondent No. 4.
K. R. Nagaraja for Respondent No. 6.
The Judgment of the Court was delivered by DFSAI, J.
Would Article 16 of the Constitution come to the rescue and be successfully invoked by appellants, admittedly juniors in the gradation list of Subordinate Judges in the State of Himachal Pradesh to respondents 3, 4 and 5, questioning the legality and validity of their promotion to the cadre of District/Additional District & Sessions Judges ( 'DSJ/ADSJ ' for short), as also questioning the legality and validity of promotion of respondents 6 and 7 to the selection grade post of Subordinate Judge ? Uncontroverted facts are that Himachal Pradesh was a Union Territory till January 25, 1971, when at the apex of judicial hierarchy there was a Court of Judicial Commissioner.
On the introduction of the Punjab Reorganization Act, 1966, ( 'Reorganization Act ' for short) effective from November 1, 1966, certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories.
Consequently, provision was made for allocation of persons belonging to different services in pre reorganised State of Punjab (Respondents 4 to 7 being such allocated officers) to Union Territory of Himachal Pradesh.
On May 2, 1967, the Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till January 25, 1971, when statehood was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up.
Himachal Pradesh (Courts) Order, 1948, ( '1948 Order ' for short), was issued by the Union Government in exercise of the power conferred by sections 3 and 4 of the Extra Provincial Jurisdiction , and this Order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules, 1962 ( '1962 Rules ' for short).
Para 16 (2) of the 1948 Order provided for the appointment of District & Sessions Judges.
The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges.
1962 Rules appear not to have made any departure in this behalf.
Promotional avenue in Himachal Pradesh Subordinate Judicial Service moves vertically from the grass root entry as Subordinate Judge promotable as Senior Sub Judge cum Assistant Sessions Judge and then the further promotional avenue is DSJ/ADSJ.
Both the appellants were working as Senior Sub Judge cum Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3, 4 and 5 given on May 18, 1971, as DSJ/ADSJ on the ground that the post of DSJ/ADSJ is a selection post and the criterion for selection must be merit alone, seniority being treated as thoroughly irrelevant and, therefore, all those who were within the zone of eligibility should have been considered before selecting respondents 3, 4 and 5 and this having not been done, the promotion having been given purely on the basis of seniority, their promotion is invalid.
Simultaneously they contended that same criterion would mutatis mutandis apply while giving promotion to Senior sub Judge cum Assistant Sessions Judge to selection grade post and that having not been done and the promotion having been given only on the basis of seniority, the same is invalid.
In support of the contention reliance has been placed amongst other thing on a Memorandum dated June 15, 1957, issued by the Himachal Pradesh Administration.
There is a serious controversy whether this memorandum was effective and in force on the date of impugned promotions and whether the same would apply to the case of judicial officers.
Appellants impleaded the State of Himachal Pradesh as respondent 1 and the High Court of Himachal Pradesh as respondent 2.
Though the High Court would be the most competent to throw light on the vexed question as to by what criterion it selected respondents 3, 4 and 5 for promotion to the post of DSJ/ADSJ and recommended their names for appointment to the Governor, surprisingly the High Court through its Registrar did not appear and participate in the proceedings.
Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer to that effect was made in the writ petition.
370 Respondent 1 State of Himachal Pradesh filed the return to the writ as per the affidavit of Shri A. K. Goswami, Joint Secretary to the Government, Department of Personnel, Simla.
State Law Department also appears to have scrupulously kept out from the arena of controversy.
In the return it was admitted that appointments to the post of Subordinate Judges were made in accordance with the provisions of para 18 of the 1948 Order till the 1962 Rules were enacted and brought into force on April 10, 1962.
It was averred that the appointment to the post of Distt.
Judge used to be made under the provisions of para 16 (2) of the 1948 Order which conferred power on the Chief Commissioner after consultation with the Judicial Commissioner to appoint as many persons as he thought necessary to be District Judges.
It was further contended that since Himachal Pradesh attained full statehood on January 25, 1971, appointment to the post of DSJ was governed by article 233 of the Constitution and, therefore, the appointments were to be made by the Governor in consultation with the High Court and accordingly respondents 3, 4 and 5 were promoted and appointed as DSJ/ADSJ on the recommendation of the High Court.
The averment to that effect in para 12 of the writ petition was admitted in the return.
Identical position was adopted supporting the promotion to selection grade given to respondents 6 and 7.
The return leaves no room for doubt that the promotions to the post of DSJ/ADSJ were given by the Governor on the recommendation made by the High Court to the Governor and the Governor acted upon the recommendation.
It was, therefore, absolutely incumbent upon the High Court to have pointed out what criterion it adopted in selecting respondents 3, 4 and 5 for promotion before it went in search of what principle ought to be adopted in selecting persons from Sub ordinate Judicial Service for promotion to the post of DSJ/ADSJ.
There is not even a whimper as to what criterion was adopted by the High Court in formulating its recommendations both for promotion as DSJ/ADSJ and to selection grade in the scale of Subordinate Judge cum Assistant Sessions Judge, the latter having been given by the High Court itself evidenced by the notification dated March 19, 1971.
Relevant provisions of the Constitution bearing on the question of appointment of District Judges and control of the High Court over the subordinate courts may be noticed.
Article 233 reads as under: "233.
Appointment of district judges (1) Appointments of persons to be, and the posting and promotion of, 371 district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Article 235 reads as under: "235.
Control over subordinate courts The control over district courts and courts subordinate thereto including the posting and promotion 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, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with conditions of his service prescribed under such law".
Article 236 provides that in Chapter VI of Part VI of the Constitution the expression 'District Judge ' includes a judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.
The expression 'Judicial Service ' in the chapter means 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.
Article 309 confers power on the legislature by appropriate legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or of a State and till such legislation is enacted the power is conferred by the proviso to Article 309 on the President and the Governor, as the case may be, to make rules in that behalf.
At the outset it must be noticed that no Rules appear to have been enacted under article 309 proviso regulating recruitment and conditions of service of DSJ/ADSJ.
Undoubtedly such rules will have to be in conformity with other provisions of the Constitution such as article 16, and the provisions included in Chapter VI of Part VI of the 372 Constitution.
Till such rules are framed appointment to the post of DSJ/ADSJ will have to be made in accordance with the provisions of articles 233 and 235 of the Constitution.
Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court.
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight.
Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court.
Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service, the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person.
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion.
Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor.
In Chandra Mohan vs State of Uttar Pradesh & Ors.,(1) a Constitution Bench of this Court observed as under: "The constitutional mandate is clear.
The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court.
The object of consultation is apparent.
The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'judicial service ' or to the Bar, to be appointed as a district judge.
Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him".
373 This view was reaffirmed in Chandramouleshwar Prasad vs Patna High Court & Ors.(1) observing: "The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges.
The High Court alone knows their merits as also demerits".
In A. Panduranga Rao vs State of Andhra Pradesh & Ors.
(2) this Court observed that there are two sources of recruitment to the post of District Judge, viz., judicial service in subordinate rank and members of the Bar.
In either case the consultation would assume the form of recommendation made by the High Court.
It is thus incontrovertible that appointment to the post of DSJ/ADSJ in Himachal Pradesh will have to be made in accordance with the provisions contained in article 233.
If any rules are enacted under article 309 for regulating recruitment and conditions of service of DSJ/ADSJ, the rules will have to be in conformity with article 233 and if they violate the constitutional mandate of article 233 of the rules will be held ultra vires as succinctly laid dow in Chandra Mohan 's case (supra).
To be precise so as to leave no ambiguity, in that case rule 13 of U.P. Higher Judicial Services Rules provided for procedure for selection by promotion to the post of District Judge from the subordinate judicial service and amongst others, the procedure provided for selection to be made by a Committee consisting of two judges of the High Court and the Judicial Secretary to Government.
This rule was held to be ultra vires as being violative of article 233 inasmuch as the High Court could be said to have abdicated its constitutional function of making recommendation to an outside authority not known to Constitution.
Turning to the facts of the case, save and except the 1948 Order no rules appear to have been enacted regulating recruitment and conditions of service DSJ/ADSJ in Himachal Pradesh.
Therefore, appointment to the post of DSJ/ASDJ in Himachal Pradesh will have to be made in conformity with article 233.
Even if para 16(2) of the 1948 Order held the field it merely provided for appointment by the Chief Commissioner (now replaced by the Governor) in consultation with the Judicial Commissioner (now replaced by the High Court).
That provision would be in conformity with article 233.
The High Court in this case recommended the names of respondents 3, 4 and 5 for promotion to the post of DSJ/ADSJ as averred by appellants 374 themselves and the Governor accepted the recommendation and the appointments were made consistent with the recommendation.
It cannot be gainsaid that this is in conformity with article 233 and the constitutional mandate is complied with and no statutory rule in the absence of any could be said to have been violated by promotion being given in this manner.
In our opinion the matter should have ended there.
The High Court, however, completely obliterating from its mind the criterion it must have followed in making the recommendation which prima facie appears to be one of the seniority cum merit, under took an exercise of a search of what ought to be the criterion for promotion from the subordinate judicial service to the responsible post of District Judge.
The High Court framed the question thus: "The first question is whether in law appointment to the post of District Judge/Addl.
District Judge must be made by selection of most meritorious officer upon an appraisal of the comparative merit of eligible subordinate judges or is it sufficient that it is made on the basis of seniority cum fitness ?" We find it a bit difficult to follow and appreciate how the High Court could proceed on such a fruitless and bizarre enquiry unconnected with and wholly unnecessary in the fact of the case before it.
The same High Court on its administrative side must have known its own mind when while making recommendation for promotion, the principle or criterion it adopted.
The High Court must be presumably aware even while making recommendation for promotion to the post of DSJ/ADSJ that it was a responsible post and merit alone must guide it in making recommendation.
Presumably the full court made the recommendation.
The High Court took notice of the fact that there were no rules at the relevant time in Himachal Pradesh formulating the principle or criterion on which such promotion as Distt.
Judge was to be recommended.
If thus there was no rule and the High Court proceeded to adopt merit cum seniority, or seniority cum fitness ' as a criterion for recommending promotions from subordinate judges to the post of district judge neither of which appears to violate either article 233 or article 16 or any other constitutional mandate or any statutory rule, it would be futile to proceed to examine what ought or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the post of DSJ/ADSJ.
If the High Court felt that the post of district judge is a very responsible post and merit alone should govern promotion from subordinate judicial service to the post of district judge it was 375 incumbent upon the High Court to propose necessary rules and get them enacted under article 309.
That appears not to have been done.
Alternatively, High Court should while making recommendation for promotion put the principle of merit cum seniority in the forefront and act accordingly.
The High Court and the Governor appear to be agreed that the recommendation for promotion made was proper and the same was accepted without a demur.
In our opinion it is then futile to examine what ought to be the criterion for such promotion, unless there is no discrenible principle on which recommendation can be justified or the recommendation is attacked as arbitrary, malafide or vitiated by bias.
There is no such allegation.
The High Court after referring to some books on public administration and public services and keeping in view the status and responsibility attaching to the post of District Judge, concluded as under: "I would therefore hold that having regard to the duties and responsibilities attaching to the post of District Judge and the position occupied by the District Judge in the judicial hierarchy, appointment to that post must be made by selection of the most meritorious officer upon an appraisal of the comparative merit of eligible Subordinate Judges.
In my opinion, the principle of seniority cum fitness would not be a valid principle".
It is difficult to appreciate how such a principle can be enunciated in abstract.
If for regulating recruitment and conditions of service of district judges it was considered essential by the High Court that promotion to the post of District Judge from the subordinate judicial service shall be on merit alone and seniority having no place in the consideration unless two are considered equally meritorious, it was incumbent upon the High Court to have proposed such a rule to be enacted under article 309.
Neither the High Court nor the Government have proposed such rules.
And surprisingly, after reaching this conclusion the High Court rejected the writ petition, frankly, on an untenable ground that the petitioners have failed to show that if they had been considered at the time when the impugned promotions were made they would have stood a fair choice of being preferred over respondents 3, 4 and 5.
This is an unsustainable conclusion.
If the High Court is otherwise right that when promotion is to be given on the criterion of merit alone, all those in the zone of selection or field of eligibility must be simultaneously considered and the best among them should be selected and recommended for promotion.
The silence of the High Court on the most important question as to what 376 criterion it adopted while formulating its recommendation coupled with the fact that those at the top of gradation list according to their seniority were recommended is eloquent enough to conclude that principle of seniority cum merit was adopted by the High Court.
What the High Court appears to have done is as and when the vacancy occurred the seniormost in the cadre of subordinate judges was considered and if found fit was recommended.
The present grievance is by persons junior to respondents 3, 4 and 5 whose promotion is questioned and the grievance is that they were not considered along with other eligible.
It is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected.
Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the Court.
It is, however, not necessary to dilate on this point because in our opinion as the situation stood at the time of the impugned recommendation for promotion and the consequent appointments made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court, though it does not reveal its mind, appears to have proceeded on the criterion of seniority cum merit which is a valid criterion under article 16 and not violative of article 233 and the appellants, therefore, who were junior to respondents 3, 4 and 5, cannot be heard to make a grievance about the promotion of respondents 3, 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them.
It was, however, said that Office Memorandum No. F.1/4/55 RPS dated May 16, 1957, issued by the Government of India, Ministry of Home Affairs, was applicable to the services including subordinate judicial service under the Union Territory of Himachal Pradesh before it attained statehood and that even if an office memorandum of the Government of India may not be directly applicable, it appears to have been adopted by the Union Territory of Himachal Pradesh because the same was issued by the Assistant Secretary to the Himachal Pradesh Administration as per his Memorandum No. Apptt.1/350/57, dated June 15, 1957, with a request that the contents of the Memorandum may also be brought to the notice of each member of the Departmental Promotion Committee for Class I, II and III posts constituted for each Department under the Union Territory of Himachal Pradesh.
This Memorandum, appellants say, prescribes guideline and lays down criterion in giving promotions to posts which are styled as 'selection posts ' as also to selection grades.
Broadly 377 stated, the guidelines are that appointments to selection post and selection grade should be made on the basis of merit with regard to seniority only to the extent indicated in the memorandum.
It further provided that Departmental Promotion Committee or other selecting authority should first decide the field of choice, i.e., the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list provided, however, that an officer of outstanding merit may be included in the list of eligible candidates even if he is outside the normal field of choice.
Field of choice was to be confined to five or six times the number of vacancies expected within a year.
It was indicated that those found unfit should be excluded.
Even in respect of those who are included in the field of choice each officer should be classified as outstanding, very good, good, on the basis of merit as determined by the respective records of service and thereafter a select list should be drawn up by placing the names in the order of merit as indicated earlier without disturbing the seniority inter se within each cadre.
Promotion should thereafter be confined, it was suggested, to the select list and by following the order in which the names are finally arranged.
It was considered desirable to periodically revise the select list.
Appellants contend that the memorandum laying these guidelines was issued, no doubt, by the Government of India when Himachal Pradesh was a Union Territory and, therefore, Government of India was competent to issue such directions in respect of services under the Union Territory of Himachal Pradesh but even if there is any doubt, once the same was adopted by Himachal Pradesh Administration, in the absence of any statutory rule it is binding and any promotion made in breach or violation of the prescribed guidelines would be invalid.
There is nothing to show that that office memorandum was endorsed to the High Court and that the Administration suggested that the High Court should adopt it while making recommendations for promotion to the post of DSJ/ADSJ.
In the absence of a return by the High Court to writ petition it is difficult to say whether the Administration desired that the guidelines prescribed in the memorandum should also be accepted or adopted by the High Court.
In the return filed on behalf of the Himachal Pradesh Government it has been stated that the memorandum was received from the Government of India and that the memorandum did contain some guiding principles for appointment to selection posts and selection grade but they were merely directory in nature and were only issued for the sake of guidance implying that if the facts and circumstances of any particular case so warranted, the concerned authority could make deviation therefrom.
It was, further stated that after Himachal Pradesh attained statehood on 378 January 25, 1971, the memorandum ceased to have any force and in the absence of any other statutory rule promotions and appointments to the posts of DSJ/ADSJ can only be made in conformity with article 233 of the Constitution and any other direction to the contrary would be void and of no effect.
The High Court disposed of the memorandum by a cryptic observation that there has been a serious debate before the Court on the question whether the direction contained in the aforesaid memorandum had to be complied with by the High Court and the State Government when the impugned appointments were made.
After noting this debate the High Court did not proceed to dispose of the contention and did not record a finding whether the memorandum was or was not required to be complied with by the High Court while making recommendations for promotion to the posts of DSJ/ADSJ.
In the absence of any material as to whether the memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach or contravention thereof would render the promotion invalid.
Even apart from this, the impugned promotions were made on May 18, 1971, after Himachal Pradesh became a full fledged State with a High Court at the apex of judicial and the memorandum would cease to have any force or binding effect.
The same memorandum was relied on in support of the contention that in giving promotion to selection grade to respondents 6 and 7 the guidelines in the memorandum of 1957 were not only not followed but the promotions were made completely overlooking the guidelines or in contravention of the guidelines.
Reasons for rejecting the efficacy of memorandum in relation to promotion to the post of DSJ/ADSJ will mutatis mutandis apply and the contention will have to be negatived.
This contention must also be negatived for the additional reason that promotion from the post of subordinate judge to the selection grade post of subordinate judge is a promotion from one post in subordinate judicial service to another post in the same service.
This promotion would definitely be under the control of the High Court as provided in article 235 of the Constitution.
No statutory rule was pointed out as to how such promotion was to be given.
In the absence of a statutory rule the High Court would be the sole authority to decide the question of promotion in exercise of its control under article 235.
By article 235 the High Court has been vested with complete control over the subordinate courts and this exercise of control comprehends the power to decide eligibility for promotion 379 from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJ/ADSJ when article 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court.
But when it comes to promotion in the judicial service under the Distt.
Judge the High Court would be the sole authority to decide the question of promotion (see The High Court, Calcutta vs Amal Kumar Roy).
This becomes manifestly clear from State of Assam & Anr.
vs Kuseswar Saikia & Ors.
In that case one Upendra Nath Rajkhowa was promoted by the Governor as Addl.
District Judge purporting to act under article 233 and a writ of quo warranto was sought challenging the appointment on the ground that the promotion as Addl.
District Judge could only be made by the High Court acting under article 235.
It was also contended that his further appointment as District Judge by the Governor would be void.
It was so held by the High Court.
On appeal when the matter came to this Court, analysing article 233 this Court held as under: "It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression 'District Judge ' includes an additional district judge and an additional sessions judge.
It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary.
The article is intended to take care of both.
It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it.
Further promotion of District Judges is a matter of control of the High Court.
What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges.
" This Court accordingly held that the promotion of Rajkhowa as Addl.
District Judge by the Governor was made under article 233 and that it was a valid appointment.
Accordingly the appeal was allowed.
It thus becomes crystal clear that while promotion to the post of District Judge which includes various posts as set out in article 236, is with the Governor, the High Court alone would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the District 380 Judge.
Appellants contend that promotion of respondents 6 and 7 from the rank of subordinate judge to the selection grade post of subordinate judge is invalid as being in contravention first of the memorandum and secondly such promotion must only be on the basis of merit and not seniority.
This contention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so.
The challenge must accordingly fail.
Appellants also contended that even if the criterion for recommendation for promotion to the post of DSJ/ADSJ is seniority cum merit, respondents 3, 4 and 5 did not deserve to be promoted because their unfitness stares in the face inasmuch as they were not considered suitable for confirmation as subordinate judge as and when their turn came for confirmation and that would show that they were not men of merits.
It was pointed out that respondents 4 and 5 were not confirmed due to their unsatisfactory performance in discharge of duties while their colleagues in the same batch were confirmed earlier.
It was further pointed out that respondent 4 was not even allowed to cross the efficiency bar for a period of about 10 years and that he was allowed to cross it for the first time in 1970.
These averments have hardly any relevance.
The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under article 235.
In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court.
It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam & Anr.
vs section N. Sen & Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with article 235 must be held to be invalid.
This view was affirmed in State of Bihar vs Madan Mohan Prasad & Ors.
This Court held that since article 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court.
Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of article 309 of the Constitution, if there be a rule.
381 The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record.
On the available material the appellants failed to establish violation of any existing rule, statutory or otherwise, governing promotion of persons to the post of DSJ/ADSJ as there is no such rule.
The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by article 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle of seniority cum merit appear to be valid.
There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any manner invalid.
Before we conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court.
In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ.
No action appears to have been taken on this request because no such record appears to have been produced before the High Court.
Such silence militates against fair adjudication of the issues.
Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.
If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under article 309 or adopt to itself such a rule and conform to it.
But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the 382 post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions.
The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it.
We have, however, on the basis of the material before us tried to resolve the said question.
Having examined the matter in all its ramifications we are no substance in this appeal and the same is dismissed with no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | Himachal Pradesh was a Union Territory till January 25, 1971, when at the apex of the Judicial hierarchy there was a court of Judicial Commissioner.
On the introduction of the Punjab Reorganization Act, 1966 effective from November 1, 1966, certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories.
Consequently provision was made for allocation of persons belonging to different services in pre reorganized State of Punjab (Respondent 4 to 7 being such officers) to Union Territory of Himachal Pradesh.
On May 2, 1967, the judiciary of Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till January 25, 1971, when state hood was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up.
Promotional avenues in Himachal Pradesh Subordinate Judicial service moved vertically from the grass root entry as subordinate judge promoted as senior sub Judge cum Assistant Sessions Judge and when the further promotional avenue is DSJ/ADSJ.
They were initially governed by the Himachal Pradesh (Courts) Order, 1948 issued by the Union Government in exercise of the power conferred by sections 3 and 4 of the Extra Provincial Jurisdiction Act, 1947.
This order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules, 1962.
Rule 16(2) of the 1948 Order provided for the appointment of District and Sessions Judges.
The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges.
In the 1962 Rules, there was no change in this regard.
Effective from January 25, 1971 when statehood was conferred on the Union Territory of Himachal Pradesh, the Chief Commissioner was replaced by the Governor and the Judicial Commissioner by High Court.
Both the appellants were working as Senior Sub Judge cum Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3, 4 and 5 given on May 18, 1971 as DSJ/ADSJ on the ground that the 365 post of DSJ/ADSJ is a selection post and the criterion for selection must be merit alone, seniority being treated as thoroughly irrelevant and therefore, all those who were within the zone of eligibility should have been considered before selecting respondents 3, 4 and 5 and this having not been done the promotion having been purely as the basis of seniority, their promotion is invalid.
Simultaneously they contended that same criterion would mutatis mutandis apply while giving promotion to senior sub Judge cum Assistant Sessions Judge to selection grade post and that having not been done and the promotion having been given only on the basis of seniority, the same is invalid, as per the memorandum dated June 15, 1957 issued by the Himachal Administration.
The High Court through its Registrar did not appear and participate in the proceedings, though made a party.
Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer was made to that effect in the writ petition.
The State of Himachal Pradesh, Respondent No. 1 contended that appointment to the post of D.S.J. was governed by article 233 of the Constitution under which appointments were to be made by the Governor in consultation with the High Court and since respondents 3, 4 and 5 were promoted and appointed as DSJ/ADSJ on the recommendation of the High Court, the appointments were not open to challenge.
The High Court accepted this plea of the State Government and dismissed the writ petitions.
Hence the appeal by special leave.
Dismissing the appeal the Court, ^ HELD: (1) Article 309 of the Constitution confers power on the legislature by appropriate legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State and till such legislation is enacted the power is conferred by the proviso to Article 309 of the President and the Governor, as the case may be, to make rules in that behalf.
Undoubtedly such rules will have to be in conformity with other provisions of the Constitution such as Article 16 and the provisions included in Chapter VI of Part VI of the Constitution.
No rules have been enacted under Article 309 proviso regulating the recruitment and conditions of service of DSJ/ADSJ till such rules are framed appointment to the post of DSJ/ADSJ will have to be made in accordance with the provisions of Articles 233 and 235 of the Constitution.
[371 F H, 372 A] Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court.
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight.
Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court.
Therefore, when promotion is to be given to the post of District Judge from amongst these 366 belonging to subordinate judicial service, the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person.
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion.
Similarly, when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in the case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor.
[372 A F] Chandra Mohan vs State of Uttar Pradesh at 83, Chandramouleshwar Prasad vs Patna High Court & Ors. ; and A. Panduranga Rao vs State of Andhra Pradesh ; ; followed.
Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the court.
And it is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected.
[376 B C] In the instant case, as the situation stood at the time of the impugned recommendations for promotion and the consequent appointment made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court, though it does not reveal its mind, appears to have proceeded on the criterion of seniority cum merit which is a valid criterion under Article 16 and not violative of article 233 and the appellants, therefore, who were juniors to respondents 3, 4 and 5 cannot be heard to make a grievance about the promotion of respondents 3, 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them.
[376 C E] 3.
It is true that the Office Memorandum No. F.1/4/55/RPS dated May 16, 1957, issued by the Government of India Ministry of Home Affairs did contain certain guidelines laying down criterion in giving promotions to selection posts.
In the absence of any material as to whether the Memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach of contravention thereof would render the promotion invalid.
Even apart from this, the impugned promotions were made on May 18, 1971, after Himachal Pradesh became a full fledged State with a High Court at the apex of judiciary and the memorandum would cease to have any force or binding effect.
[377 G, 378 C E] 4.
Promotion from the post of subordinate Judge to the selection grade post of subordinate Judge is a promotion from one post in subordinate judicial service to another post in the same service.
This promotion would definitely be under the control of the High Court as provided in article 235 of the Constitution.
In the absence of a statutory rule, the High Court would be the sole authority to decide the question of promotion in exercise of its control under article 235.
By article 235 the High Court has been vested with complete 367 control over the subordinates courts and this exercise of control comprehends the power to decide eligibility for promotion from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJ/ADSJ when article 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court.
But when it comes to promotion in the judicial service under the Distt.
Judge the High Court would be the sole authority to decide the question of promotion.
[378 F H, 379 A B] While promotion to the post of Distt.
Judge which includes various posts as set out in Art 236, is with the Governor, the High Court would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the District Judge.
In the present case promotions of respondents 6 and 7 from the rank of subordinate Judge to the selection grade post of subordinate Judge is also valid.
[379 G H, 380 A] High Court of Calcutta vs Amal Kumar Roy ; at 454; State of Assam & Anr.
vs Kuseswar Saikia 5.
The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under article 235; in fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court.
[380 D E] The impugned appointments were made by promotion as DSJ/ADSJ of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by article 233 and in the absence of any other valid rule promotion made on the generally well accepted principle of seniority cum merit is valid.
Therefore the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and promotions of respondents 6 and 7 to the selection grade post are valid.
[381 A C] State of Assam & Anr.
vs section N. Sen & Anr. ; ; State of Bihar vs Madan Mohan Prasad & Ors. ; ; followed.
|
N: Criminal Appeals Nos. 335, 336, 337, 338, 339, 346, 347, 350, 351, 352, 365, 366, 367, 383, 396, 397, 398, 399, 406, 415, 416, 417, 418, 419, 420, 430, 431, 438, 439, 440, 447, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512, 511 of 1977, 1, 15, 16, 38, 53, 69, 70 of 1978, 469, 499 of 1977, 40, 41, 81, 82, 98, 109, 130, 141, 142, 145, 149, 153 and 154 of 1978.
AND Special Leave Petitions (Criminal) Nos. 260, 272, 273, 274, 383, 388 & 479 of 1978.
Appeals by Special leave from the Judgments and Orders dated 13 9 77, 13 9 77, 13 9 77, 15 9 77, 13 9 77, 21 9 77, 19 9 77, 23 9 77, 23 9 77, 23 9 77, 26 9 77, 26 9 77, 30 9 77, 7 10 77, 16 9 77 9 9 77, 20 9 77, 5 10 77, 20 10 77, 26 9 77, 20 10 77, 20 10 77, 19 10 77, 24 10 77, 25 10 77, 14 9 77, 24 10 77, 2 11 77, 2 11 77, 3 11 77, 2 9 77, 7 9 77, 2 9 77, 9 11 77, 22 11 77, 23 11 77, 24 11 77, 13 12 77, 11 11 77, 23 11 77, 14 12 77, 13 12 77, 20 12 77, 3 1 78, 4 1 78, 5 1 78, 16 1 78, 18 1 78, 30 1 78, 25 1 78, 18 11 77, 13 12 77, 10 1 78, 13 1 78, 1 2 78, 1 2 78, 8 2 78, 21 12 77, 1 3 78, 3 3 78, 3 3 78, 10 3 78, 8 3 78, 20 3 78, 17 3 78, 15 2 78, 17 2 78, 17 2 78, 24 1 78, 14 3 78, 14 3 78 and 27 3 78 of the Punjab and Haryana High Court in Crl.
3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M, 3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, 3893 M, 3894 M, 3587 M, 4540 M, 4908 M, 3031 M, 4934 M, 4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M, 5177 M, 5197 M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M, 5079 M, 5613 M, 5905 M, 5254 M, 5253 M, 5919 M, 5907 M, 6005 M of 1977, 45 M, 68 M, 102 M, , 6114 M of 1977, 462 M, , 5240 M, 5892 M of 1977, 19/78, 956/77, 104 M/78, 104 M/78, 605/78, 5995 M/77, 941 M/78, 904 M/78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866 M/78 392 & 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78, 1168 M/78 and 1381 M/78.
M. C. Bhandare, Gobind Das, K. section Thapar, Dilip Singh, Mrs. Sunanda Bhandare, A. N. Karkhanis, Deepak Thapar and Miss Malini for the Appellants in Crl.
A. Nos. 335, 365, 430, 431, 506, 508, 499/77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs 272 274 of 1978.
Frank Anthony, V. C. Mahajan, O. P. Sharma and R. C. Bhatia for the Appellants in Crl.
A. Nos. 336, 337, 338, 350, 396, 397 399, 473, 474/77 and 1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and 109 of 1978.
Harjinder Singh for the Appellant in Crl.
A. 339 of 1977.
B. section Bindra, section M. Ashri and Mrs. Lakshmi Arvind for the Appellants in Crl.
348, 366, 415, 420, 477, 511, 512, 469/77 and 145 of 1978.
P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek Sethi for the Appellant in Crl.
A No. 346 of 1977.
L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor, Sukumar Sahu and M. C. Bhandare, P. P. Singh and R. K. Jain for the Appellants in Crl.
A. Nos. 351, 352, 406, 438 40, 463/77.
section K. Jain for the Appellant in Crl.
A. No. 53/78.
V. M. Tarkunde, M. M. L. Srivastava, R. Satish and E. C. Agrawala for the Appellant in Crl.
A. Nos. 367/77 and SLP 383/78.
V. C. Mahajan, Harbhagwan Singh, section K. Mehta, K. R. Nagaraja and P. N. Puri for the Appellant in Crl.
A. Nos. 383/78 and 498/77.
K. K. Mohan for the Petitioner in SLP 260/78.
A. K. Sen and Rathin Dass for the Appellant in Crl.
A. Nos. 40, 41/78.
M. M. L. Srivastava for the Petitioner in SLP 388/78.
L. M. Singhvi and N. section Das Behl for the Appellants in Crl.
A. No. 38/78 and for the Petitioner in SLP 479/78.
J. Sorabjee, Addl.
Bishamber Lal Khanna, Hardev Singh, R. section Sodhi and B. B. Singh for the Appellants in Crl.
477 449/77 and respondents in Crl.
A. Nos.
335 339,347,350, 352,366,367,388,396 398,406, 415 420,438 440,463,473,474,477, 498, 511/77, 1, 15 17/78, 469, 510/77, 109/78 and for the Petitioners in SLP Nos.
388/78, Crl. A. No. 98/78 & SLP 260/78.
393 Soli.
J. Sorabjee Addl.
Genl., Thakur Naubat Singh Adv.
Haryana, section N. Anand and R. N. Sachthey for the Respondents, in Crl.
A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141 and 142/78.
M. M. Kshatriya and G. section Chatterjee for Respondents in Crl.
A. Nos. 40 and 41 of 1978.
M. M. Kshatriya and G. section Chatterjee for Respondents in Crl.
A. 346/77.
J. K. Gupta, B. R. Agarwala and Janendra Lal for the Vice Chancellor, Punjab University in Crl.
A. No. 346/77.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
These appeals by Special Leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police.
The society has a vital stake in both of these interests, though their relative importance at any given time depends upon the complexion and restraints of political conditions.
Our task in these appeals in how best to balance these interests while determining the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
Section 438 provides for the issuance of direction for the grant of bail to a person who apprehends arrest.
It reads thus: "438.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so 394 as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub section (1).
" Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a judgment dated September 13, 1977 of a Full Bench of the High Court of Punjab and Haryana.
The appellant herein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab.
Grave allegations of political corruption were made against him and others whereupon, applications were filed in the High Court of Punjab and Haryana under Section 438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges.
Considering the importance of the matter, a learned Single Judge referred the applications to a Full Bench, which by its judgment dated September 13, 1977 dismissed them.
The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438.
Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power.
The need for extensive amendments to the Code of Criminal Procedure was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive.
The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code en 395 abling the High Court and the Court of Session to grant "anticipatory bail".
It observed in paragraph 39.9 of its report (Volume I): "39.9.
The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us.
Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code.
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.
In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.
Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion.
We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following draft of a new section is placed for consideration: "497A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Session for a direction under this section.
That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail.
(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub section (1).
(3) if any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having com 396 mitted that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail.
" We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted.
But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case.
Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself.
Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused.
" The suggestion made by the Law Commission was, in principle, accepted by the Central Government which introduced Clause 447 in the Draft Bill of the Code of Criminal Procedure, 1970 with a view to conferring an express power on the High Court and the Court of Session to grant anticipatory bail.
That Clause read thus: "447.
(1) When any person has reason to believe that he would be arrested on an accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub section (1).
" The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the aforesaid Clause.
The Bill introduces a provision for the grant of anticipatory bail.
This is substantially in accordance with the recommendation made by the previous Commission.
We 397 agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor.
The initial order should only be an interim one.
Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.
" Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became Section 438 of the Code of Criminal Procedure, 1973 which we have extracted at the outset of this judgment.
The facility which Section 438 affords is generally referred to as 'anticipatory bail ', an expression which was used by the Law Commission in its 41st report.
Neither the section nor its marginal note so describes it but, the expression 'anticipatory bail ' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.
Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton 's Law Lexicon, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance '.
Thus, bail is basically release from restraint, more particularly, release from the custody of the police.
The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial.
Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
Police custody is an inevitable concomitant of arrest for non bailable offences.
An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is 398 issued.
In other words, unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action".
A direction under section 438 is intended to confer conditional immunity from this 'touch ' or confinement.
No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody.
But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned.
It is the normal day to day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment.
But the crimes, the criminals and even the complainants can occasionally possess extra ordinary features.
When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism.
The powerful processes of criminal law can then be perverted for achieving extraneous ends.
Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation.
That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a court of justice.
The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible.
It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
Are we right in saying that the power conferred by section 438 to grant anticipatory bail is "not limited to these contingencies"? In fact that is one of the main points of controversy between the parties.
Whereas it is argued by Shri M. C. Bhandare, Shri O. P. Sharma and the other learned counsel who appear for the appellants that the power to grant anticipatory bail ought to be left to the discretion of the court concerned, depending on the facts and circumstances of each particular case, it is argued by the learned Additional Solicitor General on behalf of the State Government that the grant of anticipatory bail should 399 at least be conditional upon the applicant showing that he is likely to be arrested for an ulterior motive, that is to say, that the proposed charge or charges are evidently baseless and are actuated by mala fides.
It is argued that anticipatory bail is an extra ordinary remedy and therefore, whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under Section 437 or Section 439, Criminal Procedure Code, after he is arrested.
Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said that since the denial of bail amounts to deprivation of personal liberty, court should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that Section.
The learned counsel added a new dimension to the argument by invoking Article 21 of the Constitution.
He urged that Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must therefore be presumed to be innocent.
The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21.
If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21.
Therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual 's right to obtain an order of anticipatory bail.
Imposition of an unfair or unreasonable limitation, according to the learned counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.
The Full Bench of the Punjab and Haryana High Court rejected the appellants ' applications for bail after summarising, what according to it is the true legal position, thus: (1) The power under Section 438, Criminal Procedure Code, is of an extra ordinary character and must be exercised sparingly in exceptional cases only; (2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.
(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 400 437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under Section 167 (2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless.
(7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegation of mala fides in the petition are inadequate.
The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.
It was urged before the Full Bench that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial.
This argument was rejected with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law and that it could hardly be contended that every man of status, who was intended to be charged with serious crimes, including the one under Section 409 which was punishable with life imprisonment, "was entitled to knock at the door of the court for anticipatory bail".
The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail but is, if anything, an aggravating circumstance.
We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the 401 Full Bench of the High Court has engrafted on the power conferred by Section 438.
Clause (1) of Section 438 is couched in terms, broad and unqualified.
By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose.
This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our Criminal Jurisprudence as the presumption of innocence.
Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned.
It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail.
The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail.
That section reads thus : "437.
When bail may be taken in case of non bailable offence.
(1) When any person accused of or suspected of the commission of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life : Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail : Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, 402 that there are not reasonable grounds for believing that the accused has committed a non bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub section (1), the Court may impose any condition which the Court considers necessary (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under sub section (1) or sub section (2), shall record in writing his or its reasons for so doing.
(5) Any Court which has released a person on bail under sub section (1) or sub section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of an non bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not 403 guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
" Section 439 (1) (a) incorporates the conditions mentioned in Section 437 (3) if the offence in respect of which the bail is sought is of the nature specified in that sub section.
Section 439 reads thus : "439.
Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct (a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
" The provisions of Section 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438.
If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose.
The departure, in our opinion, was made advisedly and purposefully : Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in paragraph 29.9 that it had "considered" carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted" but had come to the conclusion that the question of granting such bail should be left "to the discretion of the court" and ought not to 404 be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially.
The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail.
That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail.
Sub section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail.
It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in clauses (i) to (iv) of sub section (2).
The proof of legislative intent can best be found in the language which the legislature uses.
Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairement of the freedom of the individual and the presumption of innocence.
It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non bailable offence.
A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest.
That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent.
In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non bailable offence asks for bail.
In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.
This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions.
That will be plainly contrary to the very terms of Section 438.
Though sub section (1) of that section says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub section (2) confers on the Court the 405 power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub section.
The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail.
It clearly and expressly has that power.
The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute condition which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General.
Our answer, clearly and emphatically, is in the negative.
The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.
Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.
Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion.
No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful.
There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy.
On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges.
Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.
While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L. C. said in Hyman and Anr.
vs Rose : "I desire in the first instance to point out that the discretion given by the section is very wide. . .
Now it 406 seems to me that when the Act is so express to provide a wide discretion,. it is not advisable to lay down any rigid rules for guiding that discretion.
I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief.
But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded.
If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted.
It is one thing to decide what is the true meaning of the language contained in an Act of Parliament.
It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all.
It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand.
" Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.
And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket.
While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations.
Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises.
Therefore, even if we were to frame a 'Code for the grant of anticipatory bail ', which really is the business of the legislature, it can at best furnish broad guide lines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion.
But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit".
The concern of the courts generally is to preserve their discretion without meaning to abuse it.
It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.
407 A close look at some of the rules in the eight point code formulated by he High Court will show how difficult it is to apply them in practice.
The seventh proposition says : "The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised.
" How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail ? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant 's conduct is painted in colours too lurid to be true ? The eighth proposition rule framed by the High Court says : "Mere general allegations of mala fides in the petition are inadequate.
The court must be satisfied on materials before it that the allegations of mala fide are substantial and the accusation appears to be false and groundless.
" Does this rule mean, and that is the argument of the learned Additional Solicitor General, that the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusations are mala fide ? It is understandable that if mala fides are shown anticipatory bail should be granted in the generality of cases.
But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide.
This, truly, is the risk involved in framing rules by judicial construction.
Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts.
The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.
According to the sixth proposition framed by the High Court, the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless.
Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non bailable offence".
We see no warrant for reading into this provision the conditions subject to 408 which bail can be granted under Section 437(1) of the Code.
That section, while conferring the power to grant bail in cases of non bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non bailable offence "shall not be so released" if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision.
We have already pointed out the basic distinction between these two sections.
Section 437 applies only after a person, who is alleged to have committed a non bailable offence, is arrested or detained without warrant or appears or is brought before a court.
Section 438 applies before the arrest is made and, in fact, one of the pre conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested.
The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life.
In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing.
The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report.
In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief.
If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438, the transplantation shall have to be done without amputation.
That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life".
In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session "thinks fits to do so, Section 437(1) does not confer the power to grant bail in the same wide terms.
The expression "if it thinks fit", which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1).
We see no valid reason for re writing Section 438 with a 409 view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it.
Accordingly, we are unable to endorse the view of the High Court that ancipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act.
According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith.
It is true that the functions of the Judiciary and the police are in a sense complementary and not overlapping.
And, as observed by the Privy Council in King Emperor vs Khwaja Nasir Ahmed : "Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry.
The functions of the Judiciary and the Police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. " But, these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old Section 561A, Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two First Information Reports made to them.
An order quashing such proceedings puts an end to the proceedings with the 410 inevitable result that all investigation into the accusation comes to a halt.
Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the F.I.R. We are concerned here with a situation of an altogether different kind.
An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail.
In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub section (2) (i) and (ii) which require the applicant to co operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation.
While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation.
One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. vs Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police.
The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient.
For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167 (2) of the Code is made out by the investigating agency.
It is unnecessary to consider the third proposition of the High Court in any great details because we have already indicated that there is no justification for reading into Section 438 the limitations mentioned in Section 437.
The High Court says that such limitations are implicit in Section 438 but, with respect, no such implications arise or can be 411 read into that section.
The plenitudes of the section must be given its full play.
The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a "special case" for the exercise of the power to grant anticipatory bail.
This, virtually, reduces the salutary power conferred by Section 438 to a dead letter.
In its anxiety, otherwise just, to show that the power conferred by Section 438 is not "unguided or uncanalised", the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided.
To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing.
The applicant has undoubtedly to make out a case for the grant of anticipatory bail.
But one cannot go further and say that he must make out a "special case".
We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable.
A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.
Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution.
In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion.
One ought not to make a bugbear of the power to grant anticipatory bail.
By proposition No. 1 the High Court says that the power conferred by Section 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only".
It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439.
These Sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for.
But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extra ordinary character.
We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.
It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self imposed limitations.
412 It remains only to consider the second proposition formulated by the High Court, which is the only one with which we are disposed to agree but we will say more about it a little later.
It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain vs State of Madhya Pradesh on which the High Court has leaned heavily in formulating its propositions.
One of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observed in that case that: "the power of granting 'anticipatory bail ' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power is to be exercised." Fazal Ali, J. who delivered a separate judgment of concurrence also observed that: "an order for anticipatory bail is an extraordinary remedy available in special cases".
and proceeded to say: "As Section 438 immediately follows section 437 which is the main provision for bail in respect of non bailable offences, it is manifest that the conditions imposed by section 437 (1) are implicitly contained in section 438 of the Code.
Otherwise the result would be that a person who is accused of murder can get away under section 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life.
Such a course would render the provisions of section 437 nugatory and will give a free licence to the accused persons charged with non bailable offences to get easy bail by approaching the Court under section 438 and by passing section 437 of the Code.
This, we feel, could never have been the intention of the Legislature.
Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, 413 apart from the conditions mentioned in section 437, there is a special case made out for passing the order.
The words "for a direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court has to be guided by a large number of considerations including those mentioned in section 437 of the Code.
" While stating his conclusions Fazal Ali, J. reiterated in conclusion no.3 that "Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases.
" We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of Section 438 did not at all arise in that case.
Fazal Ali, J. has stated in paragraph 3 of his judgment that "the only point" which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation, exist side by side.
Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that Rule 184 is what the Court was concerned with in the appeal.
The observations made in Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration.
We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439.
We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain (supra) in an altogether different context on an altogether different point.
We find a great deal of substance in Mr. Tarkunde 's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section.
Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail.
An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on com 414 pliance with unreasonable restrictions.
The beneficient provision contained in Section 438 must be saved, not jettisoned.
No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.
Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair.
We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.
It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail.
It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra vs King Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.
In two other cases which, significantly, are the 'Meerut Conspiracy cases ' observations are to be found regarding the right to bail which observe a special mention.
In K. N. Joglekar vs Emperor it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437.
It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously.
In Emperor vs H. L. Hutchinson it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered.
According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes.
It was observed that the principle to be deduced from the various sections in the Criminal Procedure 415 Code was that grant of bail is the rule and refusal is the exception.
An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody.
As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case.
A presumably innocent person must have his freedom to enable him to establish his innocence.
Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu vs Public Prosecutor, High Court of Andhra Pradesh that "the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.
After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.
The last four words of Article 21 are the life of that human right." In Gurcharan Singh vs State (Delhi Admn.) it was observed by Goswami, J. who spoke for the Court, that "there cannot be an inexorable formula in the matter of granting bail.
The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.
" In American Jurisprudence (2d, Volume 8, page 806, para 39) it is stated: "Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case.
Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.
" It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict.
Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
On the other 416 hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made.
But the converse of these propositions is not necessarily true.
That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail.
The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant 's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.
The relevance of these considerations was pointed out in The State vs Captain Jagjit Singh, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code.
It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual.
A person seeking anticipatory bail is still a free man entitled to the presumption of innocence.
He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
A word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is likely to abscond.
There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.
In his charge to the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti), Lord Russel of Killowen said: " . . . it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial.
It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work.
They had not the golden wings with which to fly from justice.
" 417 This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise.
No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case.
We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do.
The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application.
It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the legislature in its wisdom" has thought it fit to use a particular expression.
A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom.
If they err, they are liable to be corrected.
This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.
Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted.
The applicant must show that he has "reason to believe" that he may be arrested for a non bailable offence.
The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
Mere 'fear ' is not 'belief ', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the applicant is based that he may be arrested for a non bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.
Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace.
Anticipatory bail is a device to secure the individual 's liberty; it is neither a passport to 418 the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief.
It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438.
The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused.
The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned.
After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
We have said that there is one proposition formulated by the High Court with which we are inclined to agree.
That is preposition No. (2).
We agree that a 'blanket order ' of anticipatory bail should not generally be passed.
This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested.
A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant 's apprehension that he may be arrested is genuine.
That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever.
" That is what is meant by a 'blanket order ' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had.
The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non bailable offence.
It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section.
But specific events and facts 419 must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438 (1) is sought, must be clear and specific, not vague and general.
It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided.
A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.
The power should not be exercised in a vacuum.
There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1).
Can an order of bail be passed under that section without notice to the public prosecutor? It can be.
But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re examined in the light of the respective contentions of the parties.
The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.
Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily.
The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order.
The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid.
But this need not be followed as an invariable rule.
The normal role should be not to limit the operation of the order in relation to a period of time.
420 During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)(i), (ii) and (iii).
The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made.
In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order.
These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police.
The Court has attempted through those orders to strike a balance between the individual 's right to personal freedom and the investigational rights of the police.
The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code.
The various appeals and Special Leave petitions before us will stand disposed of in terms of this Judgment.
The judgment of the Full Bench of the Punjab and Haryana High Court, which was treated as the main case under appeal, is substantially set aside as indicated during the course of this Judgment.
S.R. Appeals allowed in part.
| IN-Abs | The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab.
Grave allegations of political corruption were made against him and others whereupon applications were filed in the High Court of Punjab and Haryana under section 438 of the Criminal Procedure Code, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges.
Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising, what according to it is the true legal position, of section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus: (1) The power under Section 438, Criminal Procedure Code, is of an extra ordinary character and must be exercised sparingly in exceptional cases only.
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.
(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under Section 167(2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless.
384 (7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegations of mala fides in the petition are inadequate.
The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.
The argument that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial was rejected by the Full Bench with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law and that it could hardly be contended that every man of status, who was intended to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was entitled to knock at the door of the Court for anticipatory bail".
The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail, but is, if anything, an aggravating circumstance.
Hence the appeals by special leave.
The appellants contended: (a) The power conferred by section 438 to grant anticipatory bail is "not limited to the contigencies" summarised by the High Court; (b) The power to grant anticipatory bail ought to be left to the discretion of the Court concerned, depending on the facts and circumstances of each particular case; (c) Since the denial of bail amounts to deprivation of personal liberty; Courts should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that section (d) Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must be presumed to be innocent.
The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21.
If the legislature itself were to impose an unreasonable restriction could have been struck down as being violative of Article 21.
Therefore, while determining the scope of section 438, the Court should not impose any unfair or unreasonable limitation on the individual 's right to obtain an order of anticipatory bail.
Imposition of an unfair or unreasonable limitation would be violative of Article 21 irrespective of whether it is imposed by legislation or by judicial decision.
Allowing the appeals in part, the Court, ^ HELD: 1.
The society has a vital stake in both of these interests namely, personal liberty and the investigational power of the police, though their relative importance at any given time depends upon the complexion and restraints of political conditions.
The Court 's task is how best to balance these interests while determining the scope of section 438 of the Code of Criminal Procedure, 1973.
[393 C D] 2.
The High Court and the Court of Session should be left to exercise their jurisdiction under section 438 by a wise and careful use of their discretion 385 which by their long training and experience, they are ideally suited to do.
The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application.
It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression.
A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom.
If they err, they are liable to be corrected.
[417 B D] 3.
Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted.
The applicant must show that he has "reason to believe" that he may be arrested for a non bailable offence.
The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
Mere 'fear ' is not 'belief ', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the applicant is based that he may be arrested for a non bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.
Otherwise, the number of applications for anticipatory bail will be as large, as, at any rate, the adult populace.
Anticipatory bail is a device to secure the individual 's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.
[417 E H, 418 A] Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief.
It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.
[418 A B] Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438.
The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
[418 B C] Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
[418 C] Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused.
The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned.
After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
[418 C E] 386 4.
However, a "blanket order" of anticipatory bail should not generally be passed.
This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested.
A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant 's apprehension that he may be arrested is genuine.
That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for which ever offence whatsoever".
That is what is meant by a 'blanket order ' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be bad.
The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non bailable offence.
It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section.
But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
[418 E H, 419 A] Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general.
It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided.
[419 A C] A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if the commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.
The power should not be exercised in a vacuum.
[419 C E] 5.
An order of bail can be passed under section 438(1) of the Code without notice to the Public Prosecutor.
But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re examined in the light of the respective contentions of the parties.
The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.
[419 E F] 6.
Equally the operation of an order passed under section 438(1) need not necessarily be limited in point of time.
The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order.
The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. 387 as aforesaid.
But this need not be followed as an invariable rule.
The normal rule should be not to limit the operation of the order in relation to a period of time.
[419 F H] 7.
Bail is basically release from restraint, more particularly release from the custody of the police.
The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial.
Personal recognizance suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself as the trial of offence or offences of which he is charged and for which he was arrested.
[397 E G] The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
Police custody is an inevitable concomitant of arrest for non bailable offences.
An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued.
In other words, unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action".
A direction under section 438 is intended to confer conditional immunity from this 'touch ' or confinement.
[397 G H. 398 A B] 8.
No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody.
But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned.
It is the normal day to day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminal to needless harassment.
But the crimes, the criminals and even the complaints can occasionally possess extraordinary features.
When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism.
The powerful processes of criminal law can then be perverted for achieving extraneous ends.
Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation.
That can even take the form of the parading of a respectable person in hand cuffs, apparently on way to a court of justice.
The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible.
It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
[398 C F] 9.
Clause (1) of Section 438 is couched in terms, broad and unqualified.
By any known canon of construction, words of width and amplitude ought not 388 generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose.
This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our Criminal Jurisprudence as the presumption of innocence.
[401 A C] The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly; because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail.
That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail.
Sub section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail.
It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit" including the conditions which are set out in clauses (i) to (iv) of sub section (2).
The proof of legislative intent can best be found in the language which the legislature uses.
Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence.
It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non bailable offence.
A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest.
That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent.
In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non bailable offences asks for bail.
In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.
[404 A G] 10.
The amplitude of judicial discretion which is given to the High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should not be cut down, by a process of construction, by reading into the statute conditions which are not to be found therein like those evolved by the High Court.
The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.
Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.
[405 B D] 389 Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion.
No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful.
There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly these are higher courts manned by experienced persons, secondly their order are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy.
On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges.
Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.
[405 D G] Hyman and Anr.
vs Rose, ; referred to 11.
Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.
And it will be strange if, by employing judicial artifices and techniques, this Court cuts down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket.
While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations.
Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises.
Therefore, even if this Court were to frame a 'Code for the grant of anticipatory bail ', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion.
But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it thinks fit".
The concern the Courts generally is to preserve their discretion without meaning to abuse it.
It will be strange if the Court exhibits concern to stultify the discretion conferred upon the Courts by law.
[406 D H] Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts.
The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.
[407 F G] 12.
It is true that the functions of judiciary and the police are in a sense complementary and not overlapping.
An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail.
In fact, two of the usual conditions incorporated in a direction issued under section 438(1) are those recommended in Sub section (2)(i) and (ii) which require the applicant to co operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation.
While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2), so as to ensure an uninterrupted investigation.
One of 390 such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
[409 D, 410 A D] King Emperor vs Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P. vs Deoman Upadhyaya, [1961] 1 S.C.R. p. 14 @ 26; referred to. 13.
In Balchand Jain vs State of Madhya Pradesh, ; , this Court was considering whether the provisions of Section 438 relating to anticipatory bail stand overruled or repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can by rule of harmonious interpretion, exist side by side.
It was in that context that it was observed that "As section 438 immediately follows Section 437 which is the main provision for bail in respect of non bailable offences, it is manifest that the conditions imposed by section 437(1) are implicitly contained in Section 438 of the Code".
These observations regarding the nature of the power conferred by section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision.
[413 C D, E] The power conferred by section 438 is of an "extra ordinary" character only in the sense that it is not ordinarily resorted to like the power conferred by sections 437 and 439.
[413 E F] Bal Chand Jain vs State of M.P., ; , distinguished.
Since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section.
Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail.
An over generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.
[413 F H, 414 A] Maneka Gandhi vs Union of India, [1978] 1 S.C.C. 248; applied.
In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior inotive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made.
On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made.
But the converse of these propositions is not necessarily true.
That is to say it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; 391 and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
There are several other considerations, too numerous to enumerate the combined effect of which must weigh with the court while granting or rejecting anticipatory bail.
The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant 's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.
[415 G H, 416 A C] State vs Captain Jagjit Singh, ; , followed.
|
Civil Appeal Nos.
2036 2039/79.
Appeals by special leave from the Judgment and Orders dated 27 4 1979, and 25 6 1979 of the Andhra Pradesh High Court in U.R.S. Nos. 4039 and 4040 in W.P. Nos. 18 & 20 of 1978 and application Nos. 75 & 76 in WP Nos. 18 & 20 of 1978 respectively.
M. A. Abdul Khader, Mukramuddin and G. Narayana Rao for the Appellants.
Dr. Y. section Chitale, K. Ram Kumar and T. A. Ramchandran for the Respondent.
The Judgment of the Court was delivered by 441 FAZAL ALI, J.
These appeals by special leave have been filed by the appellant who was respondent No. 1 (before the High Court), the elected candidate from the Charminar Assembly Constituency No. 218 in the State of Andhra Pradesh.
The election petitioner Mohd. Osman Shaheed filed election petition for setting aside the election of the appellant being E.P. No. 18/78 in the High Court.
Ahmed Hosain, a candidate who was defeated also filed another election petition No. 20/78 on the same grounds assailing the election of the appellant.
In the aforesaid election petitions before the High Court two applications were filed in each of the petition by the appellant, one for summoning witnesses Nos. 6, 8, 15 and 16 and the other for amendment of the counter.
These applications were filed after the petitioner closed the evidence and the High Court directed the appellant to file the list of witnesses.
The High Court, however, refused to summon these witnesses on the ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were to be examined was laid in the counter.
Similarly the High Court rejected the application for amendment of the counter on the same grounds.
The High Court was of the view that in the absence of any specific plea of alibi having been taken in the counter, the appellant could not be allowed to examine the witnesses or amend the counter.
Appeal Nos.
2036 37/79 are directed against the order striking out the witnesses nos.
6, 8, 15, 16 and 17 and Appeal Nos.
2038 39/79 are directed against the order rejecting the application for amendment of the counter.
We have heard counsel for the parties and have gone through the Judgment of the High Court.
We have also perused the application for amending the written statement.
It appears that one of the main allegations made against the appellant was that he had delivered speeches at Khilawat, Chowk and Baragalli on 17 2 78 and 21 2 78 respectively in which he indulged in promoting hatred rousing religious sentiments.
It was further alleged in Election Petition No. 20/78 that he made another speech at Baragalli where also he indulged in preaching religious hatred against the election petitioner.
In his counter the appellant stoutly denied the allegation that he ever made any speech at these places at all.
The respondent denied having made speech at all at Khilawat or Chowk or Baragalli.
By virtue of the amendment, the appellant sought to insert a plea that he could not have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni 180 miles from the places where he is said to have delivered 442 speeches.
In fact, witnesses nos.
6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni.
With due respect, we may observe that in refusing the amendment of the Counter or summoning the witnesses, the High Court seems to have over looked the fact that under the provisions of the Representation of People Act, the onus lies entirely on the petitioner to prove the corrupt practices alleged against the elected candidate.
The necessary facts and particulars and the statements of facts etc.
are to be pleaded by the election petitioner with exactitude and precision.
It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case.
In the case of D. Venkata Reddy vs R. Sultan & Ors.,(1) this Court observed as follows: "Another principle that is equally well settled is that election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence.
The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt.
" So far as the elected candidate is concerned, he is merely to rebut the allegations made by the petitioner in accordance with the provisions of the Civil Procedure Code, as far as practicable.
In the instant case the appellant had taken an express plea in his counter that he did not make any speech at the places alleged by the election petitioner.
He also stated that tape records or the casette alleged to contain his speech were fabricated.
One of the ways of proving this plea could be by showing that the appellant was not physically present at the places where the speeches are alleged to have been made as he was present at that time, at some other place.
This is what the appellant sought to do through the proposed amendment and by summoning the witnesses.
Thus it was clearly open to the appellant to have proved these facts in order to rebut the allegations made by the petitioner that he was present at the places where he is said to have made speeches.
Under section 116 of the Representation of the People Act an election petition has to be tried as nearly as possible according to the procedure applicable under the Civil Procedure Code to the trial of suits.
Under O. VIII R. 2 the defendant must raise by his pleading all matters which show that the suit is not maintain able, or that the transaction is either void or voidable in point of law, and all such grounds of defence, as, if not raised, would be likely 443 to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint.
Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence.
Thus in the instant case it cannot be said that the witnesses sought to be examined by the appellant or the plea which he claimed in his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had already denied in clear terms that he never made any speeches at the places mentioned in the election petition.
There was no corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner had to do in order to set at naught the electoral process which resulted in the election of the appellant.
In fact proviso to section 87 of the Representation of the People Act which may be extracted thus provides: "Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings." So far as the discretion on the High Court to refuse to summon any witness lies only when it is of the opinion that the evidence of the witness is not material or that the party tendering such witness is doing so on frivolous ground or with a view to delay the proceedings.
None of these conditions appear to be present in the instant case nor did the High Court dismiss the application for amendment of the counter or refused to examine the witnesses on the grounds mentioned above.
It it, therefore, manifest that in order to repel the plea of the election petitioner the appellant was entitled to lead evidence to show that he did not make any speech as he was physically incapable in doing so at the time and place as alleged by the election petitioner.
For these reasons, therefore, we are clearly of the opinion that the High Court was wrong in disallowing the prayer made by the appellant for examining the witnesses and for allowing amendment of the counter.
The appeals are accordingly allowed, the Judgment of the High Court is set aside and the High Court is directed to allow the appellant to examine witnesses Nos. 6, 8, 15, 16 & 17 and the amendment prayed for by the appellant is also hereby allowed.
The High Court will dispose of the election petition now as expeditiously as possible.
The costs of these appeals will abide the result of the election petition.
S.R. Appeals allowed.
| IN-Abs | In the two election petitions E. P. No. 18/78 and E. P. No. 20/78 filed by the defeated candidates, allegation of corrupt practice, namely "indulgence in promoting hatred rousing religious sentiments by speeches made at certain places" was made against the appellant, a successful candidate.
After the election petitioner closed his evidence and the High Court directed the appellant to file the list of his witnesses, the appellant filed two applications before the High Court namely, one for summoning witnesses Nos. 6, 8, 15 and 16 and another for amendment of his counter.
The High Court however refused to summon these witnesses on the ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were to be, examined was laid in the counter.
Similarly, the High Court rejected the application for amendment of the counter on the same grounds.
The High Court was of the view that in the absence of any specific plea of alibi, having been taken in the counter, the appellant could not be allowed to examine the witnesses or amend the counter.
Hence the two appeals, by special leave.
Allowing the appeals the Court, ^ HELD: 1.
Under the provisions of the Representation of People Act, the onus lies entirely on the petitioner to prove the corrupt practices alleged against the elected candidate.
The necessary facts and particulars and the statements of facts etc.
are to be pleaded by the election petitioner with exactitude and precision.
It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case.
[442B C] D. Venkata Reddy vs R. Sultan and Ors., [1976] 2 section C. C. followed.
So far as the elected candidate is concerned, he is merely to rebut the allegations made by the petitioner in accordance with the provisions of the Civil Procedure Code as far as practicable.
In the instant case, the appellant had taken an express plea in his counter that he did not make any speech at the places alleged by the election petitioner.
He also stated that tape records or the cassets alleged to contain his speech were fabricated.
One of the ways of proving this plea could be by showing that the appellant was not physically present at the places where the speeches are alleged to have been made as he was present at that time, at some other place.
This is what the appellant sought to do through the proposed amendment and by summoning 440 the witnesses.
Thus it was clearly open to the appellant to have proved facts in order to rebut the allegations made by the petitioner that he was not present at the places where he is said to have made speeches.
[442E G] 3.
Under section 116 of the Representation of the People Act an election petition has to be tried as nearly as possible according to the procedure applicable under the Civil Procedure Code to the trial of suits.
Under O.VIII R. 2 the defendant must raise by his pleading all matters which show that the suit is not maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence, as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint.
Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence.
[442G H, 443A] In the instant case, it cannot be said that the witnesses sought to be examined by the appellant or the plea which he claimed in his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had already denied in clear terms that he never made any speeches at the places mentioned in the election petition.
There was no corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner had to do in order to set at naught the electoral process which resulted in the election of the appellant.
[443A C] 4.
So far as the discretion vested on the High Court by Section 87 of the Representation of the People Act, 1951 to refuse to summon any witness lies only when it is of the opinion that the evidence of the witness is not material or that the party tendering such witness is doing so on frivolous ground or with a view to delay the proceedings.
[443D E] In the instant case none of these conditions are present.
In order to repel the plea of the election petitioner, the appellant was entitled to lead evidence to show that he did not make any speech as he was physically incapable in doing so at the time and place as alleged by the petitioner.
By virtue of the amendment the appellant sought to insert a plea that he could not have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni 180 miles from the places where he is said to have delivered speeches.
In fact, witnesses Nos. 6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni.
[441G H, 442A, 443E]
|
Civil Appeal Nos.
1841 1846 of 1978.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. Nos.
4846, 4436, 3815, 5040, 475 and 4587/78.
AND CIVIL APPEAL No. 871 of 1978.
From the Judgment and Order dated 29 4 1977 of the Allahabad High Court in W.P. No. 1749 of 1974.
AND CIVIL APPEAL No. 1921 OF 1978.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. No. 4566 of 1978.
AND CIVIL APPEAL No. 1960 OF 1978.
From the Judgment and Order dated 21 9 1979 of the Allahabad High Court in W.P. No.4568/78.
AND CIVIL APPEAL Nos.
2169 2173 OF 1978.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. Nos.
4542, 5589, 5592 to 5594/78.
AND CIVIL APPEAL Nos.
2178 2187 of 1978.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. Nos.
4921, 4625, 4449, 5002, 5003, 5007, 5068, 5069, 5284 and 4568 of 1978.
113 AND CIVIL APPEAL Nos.
2219 2226 OF 1978.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. Nos. 5185 and 5059 of 1978.
AND CIVIL APPEAL Nos.
2269, 2302, 2373 2375 OF 1978.
From the Judgment and Order dated 21 9 1979 of the Allahabad High Court in W.P. Nos.
5193/78, 5192, 5010, 4584 and 4583 of 1978.
AND CIVIL APPEAL Nos.
2321,2322,2356,2359,2386,2406 2408,2426 2428,2430 & 2431, 2457,2504,2507/1978 and 142,144,174,230,385,388,429,438,599,635,745,821,929 & 1007,1009/79,1149,1149A,1346,1630,1636,1638,1863,1865,1866,1 867 & 1869/79 and 2270,2272/78.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. Nos.5521, 4982, 5001,4447/78, 4454, 2311, 5134, 3826, 4409, 4020, 5144, 5728, 5002, 4455/78, 6948, 4665, 4560, 4666, 4985, 4449, 5540, 4823, 4619, 5150, 4588, 4593, 4926, 4947, 4948, 5012, 5062, 5088, 5089, 5191, 5539, 5106, 5097, 4833, 4911, 1398, 2114, 2515, 898/78, 5071, 5454, 5592, 5072, 5034, 4149, 5153, 5169, 5734/78, 4947/76, 5533/78, 3299/77, 4943, 4629/78 & 5194, 5195, 5196/79.
AND CIVIL APPEAL No. 487 of 1979.
From the Judgment and Order dated 21 9 1978 of the Allahabad High Court in W.P. No. 4445 of 1978.
AND WRIT PETITION Nos. 257 & 600 of 1979.
(Under Article 32 of the Constitution).
F.S. Nariman, R. F. Nariman and P. C. Bhartari for the Appellants in CA Nos.
2260 & 2261.
section P. Gupta, H. K.Puri, V. K Bahl and Miss Madhu Moolchandani for the Appellants in CAs 1841 to 1846, 2426 to 2428, 929, 1007 to 1009, 1630, 2169 to 2172 and 1635.
V.M. Tarkunde, G. B. Pai, Mrs. Saran Mahajan, Mr. Arvind Kumar, Mrs. Lakshmi Arvind and R. K. Sinha for the Appellants in CA Nos.
2507, 2322, 2457 and 871. 114 Shanti Bhushan, section P. Gupta, H. K Puri and Miss Madhu Moolchandani for the Appellants in CA 174.
L. N. Sinha, section section Ray, Ghayyas Alam and R. K Jain for the Appellants in CA 2269, 2270 to 2272.
Shanti Bhushan, Subhash Chandra Birla and Shreepal Singh for the Appellants in 2373, 2302, 2374 and 2375.
Yogeshwar Prasad and Mrs. Rani Chabra for the Appellants in CA 599, 142 to 144, 385, 1638, 2219 to 2226, 1921, 1960, 2173, 2178, 2180 to 2187, 2179, 386 to 388, 429 to 438 and W.P. 257.
Pramod Swarup for the Appellants in CAs Nos. 230, 2359, and 2386.
P. R. Mridul and Ashok Grover for the Appellants in CAs 2406 to 2408.
Veda Vyasa, N. C. Sikri, A. K Sikri and Vijay Jaiswal for the Appellants in CA 821 & 487 and W.P. 600. O.P.Verma for the appellants in CAs 1867 and 1869.
Y.S.Chitale, Mrs. Shandhana Ramachandran and P. K Pillai for Appellant No. 1 in CA 1846, 745 and Appellant No. 2 in CA 1633 and 1634.
S.K.Jain for the Appellants in CA 187/79.
T.S.Arora for the Appellants in CA 2356/78 & 1346/79.
Y.S.Chitale, O. P. Rana and Mrs. section Ramachandran for the Appellants in CA 1866 and Appellants in CA 1865 and R.1 in CAs 142 & 143 and 144 and for the Appellants in CAs.
1631, 1632 and for appellant No. 1 in CA 1633, 1634 and Appellants in CA 1863.
S.K Dhingra for the Appellants in CA 2321/78.
J M.Khanna for the Appellants in CA 2430 & 2431.
K B.Rohtagi and Praveen Jain for the Appellants in CA 2504/78.
M.M.L.Srivastava for the Appellants in CA 1149 & 1149A. K C.Dua for the Appellants in CA 1635 & 1636.
L M.Singhvi, B.D. Madhyan, R.N. Dikshit and L.K.Pandey for the Respondents (Mandi Samiti) CA 1841 to 1846,1921,2169 to 2173,2178 to 2187,2219 to 2226, 2260,2261,2269,2302,2373 to 2375,2322,2356,2406 to 2408,2420 to 2423,2431, 2426 to 2428,2507,142 to 144,174,385 to 388,429 to 439,599,230,635,1007 & 1008, 1149, 1149A, 1630 & 1631, 1638, 5135, 1346 and 2212.
115 E.C.Aggarwala and R. Satish for RR 2 in CA 2179,2180,2222 2271,2431,2433, 2504/78 and 1869 and 143/79 and in other matters for Mandi Samiti for Muzaffarnagar and Meerut.
Ravinder Bana for RR 2 in 2457,2270 and 2272 and RR 2 and RR 3 in CA 2269 and WP No. 257/79.
M.V.Goswami for RR 1 in CA 2356.
The Judgment of the Court was delivered by UNTWALIA J.
, The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 being U.P. Act XXV of 1964, hereinafter called the Act, was passed in that year.
It led to the establishment of Market Areas, Principal Market Yards and Sub Market Yards etc.
and the levying of the fee in relation to transactions of certain commodities in the State of Uttar Pradesh.
Various Market Committees were formed known as Mandi Samitis.
In order to give effect to the working of the Act The Uttar Pradesh Krishi Utpadan Mandi Niyamavali, 1965, hereinafter called the Rules, were made by the Governor of Uttar Pradesh.
The Act has been amended several times.
But we were distressed to find that the Rules were not accordingly amended as and when required to make them uptodate in accordance with the amended Act.
Various traders carrying on business in the State of Uttar Pradesh within the jurisdiction of several Market Committees challenged the levy of fee in the High Court of Allahabad from time to time.
There were several rounds of litigation in which they by and large, failed.
Finally many Writ Petitions were dismissed by the High Court by its judgment dated September 21, 1978 on which date many writ petitions were also dismissed in limine.
Civil Appeal 1841 of 1978 and about 103 more appeals are from the said judgment and order of the High Court.
Immediately preceding the said judgment a longer and more elaborate judgment had been delivered by the High Court on April 29, 1977.
Civil Appeal 871 of 1978 and Civil Appeal 1636 of 1979 are from the said judgment.
Along with these 106 appeals, two Writ Petitions were also heard being Writ Petition No. 257 of 1979 and Writ Petition No. 600 of 1979.
Thus in all 108 matters have been heard together and are being disposed of by this judgment.
At the outset it may be mentioned that because of the litigations cropping up from time to time between the traders and the Market Committees the working of the Committees had not successfully proceeded so far, as, fees levied from time to time could not be realised in.
Sometimes illegal or unauthorised collections seem to have been 116 made.
Money justifiably realised also does not seem to have been fully utilised as it ought to have been done.
In order to enable the Market Committees in their attempt to implement the law as far as possible and to save their attempt from being thwarted by any unnecessary litigation we allowed the parties to advance a full throated argument in this Court including some of the points which were not argued in the High Court or in support of which foundations of fact were lacking.
In this judgment our endeavour will be to formulate the points of law and decide them as far as practicable so that in future the business of the Market Committees may be conducted in the light of this judgment leaving no scope for unnecessary litigation.
Of course even in our judgment at places it would be indicated, and even apart from that, some genuine and factual disputes may crop up which in the first instance may be decided by the Market Committees, preferably a Board constituted by a particular Committee for deciding such disputes and then, if necessary, by the High Court.
We do hope that no further time will be lost by the State Government in amending the Rules and making them up to date to fit in with the latest amendments in the Act.
The long title of the Act indicates that it is an Act "to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence, and control of markets therefor in Uttar Pradesh." From the Objects and Reasons of the enactment it would appear that this Act was passed for the development of new market areas and for efficient data, collection and processing of arrivals in the Mandis to enable the World Bank to give a substantial help for the establishment of various markets in the States of Uttar Pradesh.
In other States the Act is mainly meant to protect an agriculturist producer from being exploited when he comes to the Mandis for selling his agricultural produce.
As pointed out by the High Court certain other transactions also have been roped in the levy of the fee, in which both sides are traders and neither side is an agriculturist.
This has been done for the effective implementation of the scheme of establishment of markets mainly for the benefit of the producers.
But as pointed out recently by a Constitution Bench of this Court in the case of Kewal Krishan Puri vs State of Punjab the fee realised from the payer of the fee has, by and large, to be spent for his special benefit and for the benefit of other persons connected with the transactions of purchase and sale in the various Mandis.
The earlier cases on the point of fee have been elaborately reviewed in that judgment and certain principles have been called out which will be adverted to hereinafter.
While deciding the question of quid pro quo in 117 relation to the impugned fees the High Court had not the advantage of the judgment of this Court.
In that regard this judgment is a settler on the point and we hope that the authorities and all other concerned in the matter will be guided by and follow the said decision in the matter of levy and utilisation of the market fee collected.
We shall now at the outset refer to the relevant provisions of the Act as they stood in the year 1978 and some of the rules framed thereunder.
Wherever necessary reference will be made to the unamended provisions of the Act.
In clause (s) of s.2 of the Act "Agricultural produce" has been defined to mean: "Such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisci culture, animal husbandry or forest as are specified in the Schedule, and includes admixture of two or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery.
" The 'Board ' means the State Agricultural Produce Markets Board constituted under Section 26 A. Clause (e) defines "commission agent" or "Arhatiya" to mean: "person who, in the ordinary course of business, makes or offers to make, a purchase or sale of agricultural produce, on behalf of the owner or seller or purchaser of agricultural produce, for Arhat or commission.
" Under clause (k) "Market Area" means an area notified as such under Section 6, or as modified under Section 9.
Clause (o) defines "Principal Market Yard" to mean the portion of a Market Area, declared as such under Section 7.
Clause (p) must be read in full: "Producer ' means a person who, whether by himself or through hired labour, produces, rears or catches, any agricultural produce, not being a producer who also works as a trader, broker or Dalal, commission agent or Arhatiya or who is otherwise ordinarily engaged in the business of storage of agricultural produce.
Provided that if a question arises as to whether any person is a producer or not for the purposes of this Act, the decision of the Director, made after an enquiry, conducted in such manner as may be prescribed, shall be final.
" 118 Under clause (w) "Sub Market Yard" means a portion of a Market Area, declared as such under Section 7.
Clause (y) defines a "trader" to mean: "a person who in the ordinary course of business is engaged in buying or selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a person, engaged in processing of agricultural produce.
" Action under s.5 was taken by the State Government declaring its intention to regulate and control sale and purchase of agricultural produce in any area and thereafter declaration of Market Area was made under s.6.
Under the present impugned notification, which was issued on April 11, 1978 making it effective from May 1, 1978, almost the whole of Uttar Pradesh has been declared to be Market Area dividing it into 250 areas and indicating in Schedule B of the notification 115 commodities in respect of which the fee could be levied by the Market Committees.
Under s.7 declarations of Principal Market Yards and Sub Market Yards have been made.
Most of such areas declared so far are the markets or the Mandis where the traders are carrying on their businesses.
It is proposed to establish Principal Market Yard and Sub Market Yards separately in every market area and a question of asking the traders to carry on their business only in such Market Yards is under consideration of the Government.
The State Government under s.8 has got the power to alter any market area and modify the list of agricultural produce.
Section 9 provides for the effects of declaration of Market Area.
Chapter III of the Act deals with the establishment, incorporation and constitution of the Market Committees.
The most important section is section 17 which provides for the powers of the Committee.
Clause (i) authorises a Committee to issue or renew licences under the Act on such terms and conditions and subject to such restrictions as may be prescribed.
Clause (iii) authorises a Committee to levy and collect (a) such fees as may be prescribed for the issue or renewal of licences, and (b) market fee at the rate and in the manner provided therein.
Clause (b) of section 17(iii) has undergone drastic changes from time to time and that enabled the appellants to advance certain serious arguments to challenge the levy of the fees especially when the Rules were not correspondingly amended.
We shall advert to this aspect of the matter later in this judgment at the appropriate place.
Section 19 provides for the Market Committee Fund and its utilisation.
Section 19 B was introduced in the Act by U.P. Act 7 of 1978 w.e.f.
29 12 1977 providing for the establishment of 'Market Development 119 Fund ' for each committee.
The rule making power of the State Government is to be found in Section 40.
From the Rules no provision is necessary to be specifically referred here except to point out that the State Government will be well advised to provide a machinery in the Rules for the adjudication of disputes which may be raised by the persons liable to pay the market fee in relation to their factum or quantum of liability.
We are not impressed with the argument advanced on behalf of the Market Committees that no such disputes actually exist or are likely to exist which require any machinery of the Market Committee for its adjudication.
At places hereinafter in this judgment we shall point out the nature of disputes which are likely to arise and which have got to be decided in the first instance by a machinery of the Market Committee such as a Board or the like.
It would be just and proper and also convenient for all concerned if the disputes are thereafter taken to any court of law.
Chapter VI of the Rules deals with levy and collection of fees.
Rule 66 dealing with the levy of market fee and Rule 68 providing for its recovery on reference to the provisions of s.17(iii) will be alluded to hereinafter to point out the chaotic conditions in which the Rules have been left inspite of the amendment in s.17(iii)(b) of the Act.
Rule 67 provides for licence fee and in none of these appeals we are concerned with the question of levy or quantum of the licence fee.
Chapter VII deals with the transaction of business in market Yards.
Several sets of arguments were advanced on behalf of the trader appellants in the various appeals by their respective learned counsel.
Three sets of arguments were advanced on behalf of the various Market Committees and a separate argument was addressed to us on behalf of the State.
In some of the appeals the State and/or the Market Committees are the appellants.
The points urged on behalf of the trader appellants, although too numerous, broadly speaking are the following: (1) Big areas consisting of towns and villages have been notified as Market Areas without rendering any service.
This is contrary to the whole object of the Act and the concept of fee.
(2) No market area or market yard has been validly created.
(3) No Mandi Samiti (Market Committee) has been validly appointed.
120 (4) No machinery has been provided in the Rules for adjudication of disputes.
(5) Fixation of minimum of 1% to be charged as market fee by all the Market Committees under s.17(iii)(b) of the Act was illegal as the requirement of and the services to be rendered by the various Market Committees could not be on the same footing.
(6) There was no application of mind in issuing the notification dated 11 4 1978 whereby 250 market areas were notified and 115 items of agricultural produce were specified.
(7) There could not be any multi point levy of any market fee either in the same market area or in different market areas.
(8) The retrospective operation of the law brought about in s.17(iii)(b) by U.P. Act 7 of 1978 w.e.f. 12.6.1973 is bad.
(9) No market fee could be levied on goods not produced within the limits of a particular market area and if produced outside and brought in such area.
(10) No market fee could be levied both on paddy and rice.
The rice millers have been illegally asked to pay market fee on their sale of rice.
Similarly no market fee was payable on Ghee either by the producer trader of Ghee or by its purchaser.
(11) Fee could be charged on sale of animals but could not be charged on hides and skins as was being illegally done.
(12) Fee could be charged on wood or timber but could not be charged either on furniture manufactured from such wood or timber or on Catechu (Katha).
(13) Wood cut and brought from the jungle by a manufacturer of paper such as Star Paper Mills, Saharanpur could not be subjected to levy of fee.
(14) Some of the items mentioned in the notification are Kirana goods brought from outside the market area or even from other States for sale in different Mandi.
They cannot be subjected to the levy of market fee.
(15) No market fee could be charged on tobacco or Tendu leaves nor on bidis.
121 (16) No fee could be charged in a municipal area as no market committee can be constituted there nor in a Nyaya Panchayat.
(17) No market fee could be charged on rab salawat and rab galawat.
(18) No market fee can be charged if only goods are brought in a market area and despatched outside it without there taking place any transactions of purchase and sale in respect of these goods.
(19) Any goods sold under any controlled legislation such as rice etc.
cannot attract the levy of fee as there is no freedom to make any sale in respect of such commodity.
(20) If no licence is issued or taken under s.9(1) of the Act then there is no liability to pay a market fee.
(21) No market fee can be levied on transactions of matchboxes, soyabin products, articles sold by Kisan Products Ltd. and Pan (betel leaves).
(22) No market fee can be charged from vendors of fruits and vegetables through their Commission Agents.
(23) Fee can be charged only on those transactions in which the seller is producer and not on any other transaction.
(24) Market fee can be charged only on those transactions in which the seller is the purchaser of agricultural produce and not on any other transaction.
Points 1 to 4 These four points are taken up together as there is no substance in any of them.
Declaration of big areas as Market Areas does not offend any provision of law.
Any area big or small including towns and villages can be declared as Market Area under s.6 of the Act.
As explained in the case of Kewal Krishan Puri (supra) the whole of the market area is not meant where the traders or the licensees can be allowed to set up and carry on their business.
The traders are required to take out licences under s.9(2) read with s.11 of the Act, for such place which is either a Principal Market Yard or a Sub Market Yard or at any specified place in the Market Area.
No body can be permitted to carry on his business anywhere in the Market Area as the Market Committee will not be able to control and levy fee throughout the Market Area.
The question of rendering service and its co 122 relation to the charging of fee has been elaborately discussed in the said decision and the following principles have been culled out: "(1) That the amount of fee realised must be earmarked for rendering services to the licensees in the notified market area and a good and substantial portion of it must be shown to be expended for this purpose.
(2) That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce.
(3) That while rendering services in the market area for the purpose of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is not necessary to confer the whole of the benefit on the licensees but some special benefit must be conferred on them which have a direct, close and reasonable co relation between the licensees and the transactions.
(4) That while conferring some special benefits on the licensee it is permissible to render such service in the market which may be in the general interest of all concerned with the transactions taking place in the market.
(5) That spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is not permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefitting the traders also.
Such an indirect and remote benefit to the traders is in no sense a special benefit to them.
(6) That the element of quid pro quo may not be possible or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee.
(7) At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two thirds or three fourths, must be shown 123 with reasonable certainty as being spent for rendering services of the kind mentioned above.
" As already stated, Market Yards also have been established while issuing notifications under s.7.
By and large, the Mandis where the traders are carrying on their business for the time being have been declared as Market Yards.
When the Market Committees are able to construct their own Market Yards, as in some places they have been able to do, then a question will arise whether a trader can be forced to go to that place only for carrying on his business in agricultural produce or he can be permitted to carry on his business in his old place.
For the time being this question is left open.
Market Committees have not been constituted yet in accordance with the provisions contained in s.13 of the Act.
They have been constituted temporarily under Uttar Pradesh Krishi Utpadan Mandi Samitis (Alpakalik Vyawastha) Adhiniyam, 1972 which Act was a temporary Act and has been extended from year to year.
But it is high time that Market Committees should be constituted in a regular manner on a permanent basis in accordance with the provisions contained in Chapter III of the Act.
But the levy and collection of fee by the temporary Market Committees is not illegal as argued on behalf of the appellants.
A machinery for adjudication of disputes is necessary to be provided under the Rules for the proper functioning of the Market Committees.
We have already observed and expressed our hope for bringing into existence such machinery in one form or the other.
But it is not correct to say that in absence of such a machinery no market fee can be levied or collected.
If a dispute arises then in the first instance the Market Committee itself or any Sub Committee appointed by it can give its finding which will be subject to challenge in any court of law when steps are taken for enforcement of the provisions for realisation of the market fee.
Point No. 5 Under clause (b) of s.17(iii) of the Act a minimum and maximum limit of market fee chargeable has been fixed by the legislature.
The minimum is 1% and the maximum is 1 1/2 of the price of the agricultural produce sold.
The fixing of the minimum of 1% fee by itself is not illegal but it would be subject to the rendering of adequate services as explained by this Court in Kewal Krishan Puri 's case.
The facts placed before the High Court as also before us were too meagre to indicate that services to the extent of the fee levied at 1% are not being rendered.
In Puri 's case we upheld the levy of market fee at 2% on the value of the goods sold.
But there we found that the 124 Market Committees were rendering greater services than are being rendered by the Market Committees of Uttar Pradesh.
Yet charging of 1% fee as is being charged throughout the State of Uttar Pradesh by all the Market Committees is not illegal and does not go beyond the quid pro quo theory discussed in Puri 's case.
Point No. 6 It is difficult to understand the significance of this point.
The notification dated 11 4 1978 indicates that in the various Districts, the number of which is about 55, 250 Market Committees have been constituted and about 115 items have been selected in respect of which market fee has been directed to be levied.
None of the items so specified is such that it cannot be covered by the Schedule which is a part of the Act.
The definition of agricultural produce is very wide.
It is not confined to items of agricultural produce only but includes items of produce of horticulture, viticulture, apiculture, sericulture, pisci culture, animal husbandry or forest.
Such items are specified in the Act which is undoubtedly a part of the Act.
That being so challenge to the notification dated 11 4 1978 on the ground that it was issued without any application of mind is devoid of any substance and must be rejected.
Point No. 7 It is clear and it was expressly conceded to on behalf of the Market Committees and the State that there cannot be any multi point levy of market fee in the same market area.
The reason is obvious.
Section 17(iii)(b), as amended by U.P. Act 7 of 1978 reads as follows: "market fee, which shall be payable on transactions of sale specified agricultural produce in the market area at such rates, being not less than one percentum and not more than one and half percentum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following manner (1) if the produce is sold through a commission agent, the commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee; (2) if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the market fee to the Committee; 125 (3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee; and (4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee.
" All the four clauses of clause (b) are mutually exclusive.
If the produce is purchased from a producer directly the trader shall be liable to pay the market fee to the Committee in accordance with sub clause (2).
But if the trader sells the same produce or any product of the same produce to another trader neither the seller trader nor the purchaser trader can be made to pay the market fee under sub clause (3).
So far the position was not disputed by the Market Committees, rather it was conceded, and in our opinion, rightly.
But some difficulty arises in regard to the products of the agricultural produce which has been subjected to the levy of market fee.
This will be relevant when we come to consider the various agricultural produce in respect of which challenge was made on the ground that it amounts to multi point levy.
At this stage we may explain our view point by taking a few examples from the Schedule appended to the Act.
Wheat, an agricultural produce, is mentioned under the heading 'Cereals '.
Suppose the transaction of wheat, namely, wheat purchased from a producer by a trader has been subjected to levy of market fee under s.17(iii) (b)(2) no further levy of market fee in the same market area could be made, not even on wheat flour if flour were to be included in the Schedule.
The better example can be found in the items under the heading 'Animal Husbandry Products ' wherein in the Schedule milk and Ghee both are mentioned.
Milk, of course, is not mentioned in the notification dated 11 4 1978.
But if it would have been mentioned then only the transaction of milk in a particular market area could be subjected to levy of fee and Ghee manufactured from milk could not be so subjected.
But since milk is not mentioned in the notification the transaction of Ghee can be subjected to the levy of fee in accordance with the principle to be discussed hereinafter.
The greater difficulty arises with respect to paddy and rice as both of them are mentioned in the Schedule as well as in the notification.
We shall show hereinafter that in a particular market area market fee can not be levied both in relation to the transaction of purchase and sale of paddy and the rice produced from the same paddy.
Fee can be charged only on one transaction.
This finds support from the unamended Rules as they are, wherein is to be found sub r.(2) of Rule 66.
But we find nothing in the provisions of the Act or the Rules to 126 warrant the taking of the view that in another market area the Market Committee of that area cannot levy fee on a fresh transaction of sale and purchase taking place in that area.
Supposing the Wheat is purchased in market area X by a trader from a producer, fee will be chargeable under s.17(iii)(b)(2).
If the same Wheat is taken to another market area say Y and another transaction of sale and purchase takes place there between a trader and a trader the market fee will be leviable under sub clause (3).
It is also not correct to say that the agricultural produce must have been produced in the market area in which the first levy is made.
It might have been produced in another market area or even outside the State of Uttar Pradesh but if a transaction of sale and purchase takes place of an agricultural produce as defined in the Act and covered by the notification within a particular market area then fee can be charged in relation to the said transaction.
Point No. 8 In order to appreciate the implication of this point we have first to read and compare the provisions of s.17(iii)(b) of the Act as they stood before 1973, between 1973 and 1978 and after the amendment by Act 7 of 1978.
The provision as enacted in U.P. Act XXV of 1964 read as follows: "17.
A Committee shall, for the purposes of this Act, have the power to: (iii) levy and collect: (b) market fees on transactions of sale or purchase of specified agricultural produce in the Principal Market Yard and Sub Market Yards from such persons and at such rates as may be prescribed, but not exceeding one half percentum of the price of the specified agricultural produce sold or purchased therein;" The Rules which were framed in 1965 prescribed the rates of and the liability of the persons to pay the market fee.
The relevant provision of Rules 66 and 68 are quoted below: "66.
Market fee Section 17(iii) (1) The Market Committee shall have the power to levy and collect fees on the specified agricultural produce brought and sold in the Market Yards at such rates as may be specified in the byelaws but not exceeding one half of one percentum of the price of the specified agricultural produce: Provided that the market fee shall be payable by the seller.
127 68.
"Recovery of fees Section 17(iii) (1) The market fee on specified agricultural produce shall be payable as soon as such produce is sold in the Principal Market Yard or Sub Market Yards in accordance with the terms of and conditions specified in the bye laws.
(2) The market fee shall be realized from the seller in the following manner: (i) If the specified agricultural produce is sold through the Commission agent or directly to the trader, the Commission agent or the trader, as the case may be, shall charge market fee from the seller in sale voucher in Form No. VI and deposit the amount of market fee so realised with the Market Committee in accordance with the directions of the Committee issued in this behalf.
(ii) If the specified agricultural produce is sold directly by the seller to the consumer, the market fee shall be realised by the servant of the Market Committee authorized by it in this behalf.
(3) The licence fee shall be paid along with the application for licence: Provided that in case the Market Committee refuses to issue a licence, the fee deposited by the applicant shall be refunded to him.
(4) The payment of market fee and licence fee shall be made to the Committee in cash.
" It would thus be seen that before 1973, reading the provisions of the Act and the Rules, market fee was to be charged at such rates as specified in the bye laws of a particular Market Committee.
But it could not exceed 1/2 percentum of the price of the agricultural produce.
We were informed at the Bar that almost every Market Committee had levied fees @ 1/2%.
The liability to pay the fee was of the seller of the agricultural produce.
Market fee was liable to be paid under Rule 68(2)(ii) even if the specified agricultural produce was sold directly by the seller to the consumer.
This provision has been superseded now by an amendment in the Act brought about by U.P. Act 19 of 1979, whereby a proviso to the following effect has been added to section 17(iii)(b): "Provided that no market fee shall be levied or collected on the retail sale of any specified agricultural produce where such sale is made to the consumer.
" 128 Clause (b) of section 17(iii) was amended by U.P. Act 13 of 1973 as re enacted by U.P. Act 20 of 1974.
The said clause stood as follows after the said amendment: "(b) market fees, which shall be payable by purchasers, on transactions of sale of specified agricultural produce in the Principal Market Yard or a Sub Market Yard at such rates, being not less than one percentum and not more than one and a half percentum of the price of the agricultural produce so sold, as the State Government may specify by notification in the Gazette;" It would be noticed that by the said amendment in clause (b) the minimum rate fixed was 1 percentum and the maximum 1 1/2 percentum and the liability to pay the fee became that of the purchaser instead of the seller as prescribed earlier by the Rules.
Yet the Rules continued as they were.
Nonetheless it is plain that after the amendment in the Statute, Rules could apply only mutatis mutandis and wherever there was a conflict between the Rules and the Statute the latter had to prevail.
In passing, reference may be made to the substitution of the words market area in place of the words "Principal Market Yard or the Sub Market Yards" occurring in clause (b) by U.P. Act 6 of 1977 w.e.f. 20 12 1976.
We have already adverted to this aspect of the matter and pointed out that transactions cannot take place in whole of the market area and although theortically fee is chargeable in the whole of the area now but actually the Rules and especially the Explanation to Rule 66 indicate that the transactions do take place in the Principal Market Yard or Market Yards or some specified place or places in a particular market area.
Then came the amended section 17(iii)(b) of U.P. Act 7 of 1978, which had already been extracted above and it was made retrospective w.e.f. 12 6 1973.
Under the present provision a liability to pay the fee is under four mutually exclusive clauses.
The Rules which were framed in 1965 namely Rules 66 and 68 are so very different from the present provision of law that we had to express our distress in the beginning of this judgment for the failure of the Government to amend the Rules and bring it in conformity with the amended provisions of the Statute from time to time.
Any way, the Rules will apply as far as possible so long they do not come in conflict with the Statute and even without the aid of the Rules the provision in section 17(iii)(b) as it stands after the amendment brought about by U.P. Act 7 of 1978 is workable and can be given effect to.
The 129 State legislature was competent to make retrospective amendment vide B. Banerjee vs Anita Pan and M/s. section K.G. Sugar Ltd. vs State of Bihar and Ors.
It has also been pointed out in H. H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitable Endowments, Mysore at pages 324 25 that retrospective imposition of a fee is valid.
Of course, this cannot be a rule of universal application.
In a given case and in a given situation the retrospective operation may be hit by Article 19.
But in the present case we are inclined to take the view that the retrospectivity of the law as such is not bad and the only safeguard which we want to point out is this.
If market fee has been realised by any Market Committee in respect of transactions of sale of agricultural produce taking place between 12 6 1973 and coming into force of U.P. Act 7 of 1978, in accordance with the law as it prevailed then, no market fee under the amended law can be realised again.
But if in respect of any transactions aforesaid market fee has not yet been realised then it can be realised in accordance with the amended provision of the law.
The only hardship will be to persons covered by sub clauses (1) and (3) wherein a provision has been made to pass on the burden of fee to others.
In the case of sub clause (1) the commission agent can realise the market fee from the purchaser and the seller trader under sub clause (3) can realise it from the purchaser.
If market fees are realised from such persons in accordance with the amended provision of the law then in turn they may be able to realise it from persons on whom they could pass on the burden.
We are not disposed to hold the law bad only on that account.
Point No. 9 We have already alluded to this aspect of the matter earlier in our judgment and taken the view that market fee could be levied on transactions of goods not produced within the limits of a particular market area by the Market Committee of that area even though the goods are produced outside the State of Uttar Pradesh or outside the market area of that particular Market Committee provided the transactions take place within the limits of that Market area.
On the other hand we find no provision in the Act or the Rules to limit the operation of the law in a particular market area only in respect of the agricultural produce produced in that area.
Point No. 10 Apropos this point attention is first to be focussed on the definition of the word 'producer ' in clause (p) and 'trader ' in clause (y) of 130 section 2 of the Act which have already been quoted.
A producer who produces agricultural produce generally does not indulge in trading activities so as to become a trader within the meaning of clause (y).
He is covered by clause (p) only.
If a person is simply a trader indulging in trading activities he is covered by the definition in clause (y).
We have coined the expression producer trader for a person who is both a producer of agricultural produce and himself trades in it.
For the purposes of the Act he ceases to be a producer and becomes a trader only as the definition indicates.
While discussing the question of levy of market fee on paddy and rice this aspect of the matter is important and therefore we thought it appropriate to highlight it at this stage.
By and large in the notification dated April 11,1978 there is hardly any duplication of any item of agricultural produce.
As for example, under Group D Animal Husbandry Products, milk has been omitted although it is to be found in the Schedule appended to the Act.
From milk can be prepared Ghee or Khoya and items 1 and 2 in Group D are the said articles.
Hides and Skins can be had from the animals, so wool is obtained from the sheep.
But in case of paddy and rice mentioned as items 3 and 4 in Group A I "Cereals", there is a duplication as rice is obtained from paddy.
We would, therefore, like to clarify the position of law in this regard.
If paddy is purchased in a particular market area by a rice miller and the same paddy is converted into rice and sold then the rice miller will be liable to pay market fee on his purchase of paddy from the agriculturist producer under subclause (2) of section 17(iii)(b).
He cannot be asked to pay market fee over again under sub clause (3) in relation to the transaction of rice.
Nor will it be open to the Market Committee to choose between either of the two in the example just given.
Market fee has to be levied and collected in relation to the transaction of paddy alone.
Otherwise, there will be a risk of violation of Article 14 if it is left to the sweet will of the Market Committee in the case of some rice millers to charge market fee on the transaction of paddy and in case of others to charge it when the sale of rice takes place.
If, however, paddy is brought by the rice miller from another market area, then the Market Committee of the area where paddy is converted into rice and sold will be entitled to charge market fee on the transaction of sale in accordance with sub clause (3).
We now take the example of a producer trader who is an agriculturist and produces paddy in his own field but owns a rice mill also in the same market area.
He mills the paddy grown by him into rice and sells it as such.
It is plain that in his case no market fee can be charged on paddy because there is no transaction of sale and purchase of paddy and market fee can be charged only on the sale of rice by him in accordance with sub clause (3) and he will be entitled to 131 pass on the burden to his purchaser.
Disputes of facts were raised before us as to whether paddy had been subjected to the charge of market fee or not and whether the same paddy has been milled into rice.
We did not enter into this disputed question of fact, and as observed above, after clarifying the law we direct the Market Committees to levy market fee in the light of this Judgment.
It will be open to any trader to go to the High Court again, if necessary, for the redress of his grievance in connection with a disputed question which may arise even after our Judgment.
In relation to the transactions of Ghee we had two types of dealers before us (1) a dealer who purchases milk or cream from the villagers and others and manufactures Ghee in his plant and (2) a dealer who purchases such Ghee from the manufacturer of Ghee and sells it to another trader in the same market area.
The first dealer will be liable to pay market fee because he is the producer of Ghee within the meaning of the Act and at the same time a trader in Ghee also.
When he sells Ghee to another dealer in Ghee who is simply a dealer then under sub clause (3) of section 17(iii)(b) the manufacturing dealer will be liable to pay market fee to the Market Committee on the transaction of Ghee.
But he will be entitled to pass on the burden to his purchaser.
Apropos the Market Committee, however, the liability will be of the manufacturing dealer.
If milk, butter or cream would have been included in the notification then the charging of fee in relation to the first transaction of sale and purchase of such commodities would have been attracted in the light of the principle of law we have enunciated above with reference to paddy and rice.
But in the case of Group D such commodities are not mentioned in the notification.
Point No. 11 An attempt was made on behalf of the Hides and Skins dealers to show that hides and skins cannot be an agricultural produce within the meaning of the Act.
They are obtained from the carcass of an animal and not from a living animal.
Argument stressed was that under group G in the Schedule appended to the Act Animal Husbandry Products only can come.
Item 11 Hides and Skins, item 12 bones, item 13 meat etc.
are not products of Animal Husbandry.
Some authoritative books were cited before us on "Words and Phrases" to show the meaning of 'Animal ', 'Husbandry ' and 'Animal Husbandry '.
Animal Husbandry means that branch of agriculture which is concerned with farm animals especially as regards breeding, care and production.
We are not impressed by this argument.
The definition clause (a) of section 2 uses the expression 'animal husbandry ' by way of a descriptive one without strictly confining to the products of animal husbandry 132 as the addition of the words "specified in the schedule" indicates.
In the schedule under the group 'husbandry products ' are mentioned all these items.
We may also add that one may breed and rear animals in a farm for the purpose of obtaining hides and skins after they are butchered.
Market fee is, therefore, leviable on the transactions of hides and skins as no market fee can be charged on transactions of sale and purchase of animals in a market area in the State of Uttar Pradesh, the same having not been included in the notification.
Had it been included in the notification, then no market fee could be charged in the same market area on hides and skins.
It could only be charged in relation to the transaction of purchase and sale of animals.
Point No. 12 For discussing this point we have to refer to group E of the notification dated 11 4 1978 which deals with forest products.
The items mentioned in the said group are (1) Gum, (2) Wood, (3) Tendu leaves, (4) Catechu and (5) Lac.
Market fee can be charged on purchase of wood by a trader from a producer.
No fee can be charged on the sale of furniture manufactured by the purchaser of wood.
It was also conceded on behalf of the Market Committees that market fee was not being charged on the sale of furniture.
If it has been so charged it will be refunded.
Furniture is not an item mentioned in the group of forest products.
Therefore, this question does not present any difficulty at all.
Difficulty cropped up in relation to the charging of market fee apropos the transaction of Catechu.
According to the Market Committees Catechu is a product from timber or trees like Gum or Lac.
It trickles down from the trees.
On the other hand, according to the Catechu dealers by processing of Khar trees Catechu is produced.
We leave this question of fact to be decided by the Market Committees concerned in the first instance and then by a court of law.
If Catechu is a product of Khar trees by some processing as prima facie it appears to us to be so, then it is plain that market fee can be charged only on the purchase of Khar wood and not on the sale of Catechu.
Point No. 13 This item presented some difficulty in solution.
A licence is granted to a Paper Mill and to other kinds of dealers for cutting wood from the jungle and bringing it to their factories for manufacture of various articles such as paper etc.
It was argued that there was no transaction of sale and purchase involved in the above operation.
Moreover the wood is cut from the jungle area which although has been roped in the market area but no service is rendered in that jungle area by any Market 133 Committee.
In our opinion in the licence is involved sale of wood and a right to go to that land to cut that wood.
The wood may be used by the manufacturer for manufacturing furniture or may be used in the manufacture of paper or any other commodity.
That is immaterial.
The owner of the jungle wherefrom the wood is cut and brought will be a producer within the meaning of the Act and the licensee producer of that wood would be a purchaser of an agricultural produce within the meaning of sub clause (2) of section 17(iii)(b) of the Act liable to pay market fee.
It matters little what use is made of the wood by him.
The question of quid pro quo and service cannot be decided by a dichotomy of service to every payer of fee as held by this Court in Kewal Krishan Puri 's case.
The matter has to be judged in a broad sense and not in the sense of rendering service to every individual payer of the fee.
Point No. 14 This point also presented some difficulty.
But on a parity of reasoning mentioned so far in connection with the other items, we have got to hold that such Kirana goods as are included in the notification brought from outside a particular market area or even from outside the State of Uttar Pradesh are chargeable to market fee when their sale takes place in a particular market area.
In group A VI Spices are mentioned including certain Kirana items such as Ripe Chillies, Sonf, turmeric etc.
They are sold by the Kirana dealers.
Sometimes they purchase them from the agriculturists in the same market area.
In relation to those transactions they will be liable to pay market fee under sub clause (2) of section 17(iii)(b).
More often than not such articles are brought from outside and sold by the Kirana merchants.
If they are sold to consumers, no market fee can be levied in view of the proviso added in the year 1979.
If they are sold in wholesale, then the transaction can be subjected to the levy of market fee because in a particular market area they enter into the first transaction of sale in respect of the specified agricultural produce.
Point No. 15 Market fee can be charged on transaction of tobacco as it is included in group A V of the notification.
As in the case of other items so in this case also the fee will be leviable if tobacco is purchased in the same market area from an agriculturist in accordance with sub clause (2).
Otherwise it would be leviable under sub clause (3).
Similar is the position in regard to tendu leaves which is mentioned in group E. Bidi cannot be treated as an agricultural produce as it is not an admixture of tobacco and tendu leaves within the meaning of section 2(a) of the Act.
It was conceded on behalf of the Market Committees that no market fee was being charged on the transactions of Bidi.
But 134 if a Bidi manufacturer purchases tobacco and tendu leaves in the market area and uses them in the manufacture of Bidi, he will be liable to pay market fee in relation to the transaction of tobacco and tendu leaves.
Point No. 16 This point has been stated merely to be rejected.
There is no substance in this point.
Our attention was drawn to some provisions in the municipal Acts and the Zila Parishad Acts to show that no market committee could be constituted in a municipal area or a Nyaya Panchayat.
We do not consider it necessary to deal with this point in any detail.
We merely reject it as being devoid of any substance.
Point No. 17 Gur, rab, shakkar, khandsari and jaggery are expressly included in the definition of agricultural produce given in clause (a) of section 2 of the Act.
We are here concerned with the question as to whether rab galawat and rab salawat are rab within the meaning of section 2(a) or are bye products of molasses received at the time of manufacture of khandsari.
According to the case of some of the appellants who deal in these commodities they are the bye products and market fee has already been charged on rab and therefore the fee cannot be charged again on rab galawat and rab salawat.
Disputes of facts were raised in this connection before us on behalf of the Market Committees.
On the materials placed before us it was clear to us that rab galawat and rab salawat cannot be subjected to a separate charge of market fee apart from the transaction of rab.
Market fee can be levied on the first transaction of rab taking place in any market area in accordance with any of the sub clauses of section 17 (iii) (b), as it may be applicable.
It cannot be again charged on the second transaction of rab galawat or rab salawat even assuming that it is rab.
But on the materials placed before us it appeared to us that rab galawat and rab salawat are not rab in the original form but they are obtained at one stage or the other in the process of manufacture of khandsari.
Any way the question of fact may be decided as we have indicated in respect of the other items in the first instance by the Market Committee and thereafter by the High Court, if necessary, in a fresh writ petition.
It will bear repetition to say that the only transaction which can be subjected to levy of market fee in a particular market area is the first transaction of rab and no other transaction of rab galawat and rab salawat.
Point No. 18 This point urged on behalf of the appellants is well founded and must be accepted as correct.
On the very wordings of clause (b) of 135 section 17(iii) market fee is payable on transactions of sale of specified agricultural produce in the market area and if no transaction of sale takes place in a particular market area no fee can be charged by the Market Committee of that area.
If goods are merely brought in any market area and are despatched outside it without any transaction of sale taking place therein, then no market fee can be charged.
If the bringing of the goods in a particular market area and their despatch therefrom are as a result of transactions of purchase and sale taking place outside the market area, it is plain that no fee can be levied.
Point No. 19 This point has no substance and has got to be rejected.
As held in Vishnu Agencies (Pvt.) Ltd. etc.
vs Commercial Tax Officer & Ors. etc.
on a review of earlier decisions even if a commodity is sold pursuant to the controlled regulations still some small area is left to make it a transaction of sale.
It may well be that no freedom is left to the parties in a large area of the transaction yet it is a transaction of sale.
Point No.20 This point also must be rejected.
A pure and simple producer as defined in clause (p) of section 2 is not required to take any licence for selling his agricultural produce nor is he required to pay market fee under any of the sub clauses of section 17(iii)(b).
But if he is a producer trader in the sense we have explained above, then he will be required to take out a licence in accordance with section 9(2) of the Act and no body can be permitted to carry on any trade in agricultural produce in the market area without a valid licence.
Merely for his lapse of not taking out a licence he cannot escape the liability to pay the market fee.
Market fee will still be chargeable from the trader, as, in section 17(iii)(b) it is not stated that market fee can be charged only from the licensees.
The proviso to clause (p) of section 2 will be attracted only if a question arises as to whether any person is a producer or not for the purposes of the Act and in that event the decision of the Director made after an inquiry conducted in the manner prescribed by the rules shall be final.
The proviso has nothing to do with a case of a producer trader.
If a question arises whether a person is merely a producer or producer trader the Director will have no power to decide this question.
Such a question will have to be decided by the Market Committee itself which will be subject to the final decision of a court of law.
136 In support of the argument reliance was placed upon the decision of this Court in Raunaq Ram Tara Chand & Ors. etc.
vs The State of Punjab & Ors.
But that case is distinguishable because of the language of rules 29 and 31 of the Punjab Agricultural Produce Market Rules framed in accordance with the Punjab Agricultural Produce Markets Act, 1961.
Both the rules aforesaid clearly stated that the fee could be charged from the licensees only.
Not only that even the charging section 23 of the Act itself stated: "a Committee may, subject to such rules as may be made by the State Government in this behalf, levy on ad valorem basis fees on the agricultural produce brought or sold by licensees in the notified market area at a rate not exceeding rupee one fifty paise for every one hundred rupees, provided. "On the other hand in section 17 (iii) (b) of the U.P. Act and Rules 66 and 68 of the Rules charging of market fee in terms is not found to be chargeable from the licensees only.
The traders cannot escape their liability to pay the fee on account of their default of taking out licences.
Point No. 21 This point is also well founded and must be accepted as correct.
Market fee can be charged only on the transactions of purchase of wood and if a manufacturer of match sticks purchases wood from the producer for the purposes of manufacturing the sticks he will be required to pay market fee on such purchase of wood only and not on the sale of match sticks or match boxes.
Similarly market fee will be leviable on the transaction of purchase of soyabin and not on transaction of sale of soyabin products.
Exactly the same will be the position with regard to the articles sold by Kisan Products Ltd. and the sale of Pan. Agricultural produce purchased by the dealers will be chargeable to market fee and not the sale of the products after one kind of processing or the other.
Point No. 22 Under this head the submission on behalf of the fruit and vegetable merchants was that they bring their products to the market and sell them in wholesale through their commission agents.
No market fee, therefore, should be charged from them.
In our opinion the argument so placed on behalf of the merchants is misconceived.
Under sub clause (1) of section 17(iii)(b) of the Act when fruits and vegetables are sold through a commission agent by the producer then the Commission agent is liable to pay the market fee and he can realise it from the purchaser of fruits and vegetables.
The burden does not fall on the producer.
The liability in the first instance is of the commission, agent and finally of the purchaser of the articles.
137 Point No. 23 Point No. 24 Reliance was placed upon a decision of the Mysore High Court (now Karnataka) in the case of K. N. Marudaradhya vs The Mysore State but the view taken by the Mysore High Court was dissented from by the Patna High Court in the case of Mangalchand Ramchandra and others etc.
vs State of Bihar.
One of us (Untwalia J,) delivering the judgment of the Patna High Court stated at page 1053 thus: "At this stage I would discuss a Bench decision of the Mysore High Court on which great reliance was placed on behalf of the petitioners in support of their contention that no fee can be levied on transaction of buying and selling between a dealer and a dealer even though such transactions take place within the market area or the market proper.
The decision of the Mysore High Court is in the case of K. N. Marudaradhya vs The Mysore State A.I.R. At page 126 (column 2) from paragraph 33 starts the discussion on the point at issue.
To the extent the decision goes to hold that the purchase in respect of which the fee could be levied or collected is the earliest purchase, that is to say, the fee can be levied only on one purchase and not on subsequent purchases, with respect I am inclined to agree with that view expressed in paragraphs 33 to 38.
But while discussing the point, Iyer J., has confined this earliest purchase of the agricultural produce belonging to the producer only.
There does not seem to be a pointed discussion of the question whether the first purchase from a dealer could be subjected to levy or not.
But by necessary implication, as I read the judgment, it seems, their Lordships of the Mysore High Court took the view that such a deal cannot be subjected to the levy of fee.
With great respect, in that regard, I strike my note of dissent from the view expressed by the Mysore High Court.
Firstly, merely because the object of the legislation is the protection of the agriculturist, the plain meaning of the section cannot be cut down.
Secondly, they have relied upon the practice prevailing around the area under different State statutes as mentioned in paragraph 36.
If I may say with respect, law could not be so 138 decided on the basis of any practice.
Of course, the interpretation given to the Statute can be supported by reference to practice.
Thirdly, I am inclined to think that the Supreme Court decision in the case of Krishna Coconut Company does not lend support to the limited view expressed by the Mysore High Court.
We approve of the Patna view and in the set up of the U.P. Act after an elaborate discussion we have pointed out as to in what kind of transaction who is liable to pay the market fee.
In the U.P. Act even traders under certain circumstances have been made liable to pay such fees.
Similarly the argument that market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction is also devoid of any substance.
Conclusions For the reasons stated above, we hold that market fee should be regularised and be charged in the light of this Judgment.
If anything has been realised from the traders or any other person which goes contrary to this Judgment the same should be refunded by the Market Committee concerned within six months from today.
This may not be treated as a precedent for all cases of this type.
The form of the order in relation to the refund of the market fee may vary from case to case depending upon the facts and circumstances of each case.
Market fee due from the traders in the light of this judgement should also be charged and paid within a period of six months from today.
If there is any disputed question of fact to be decided by the Market Committee then it should be decided as quickly as possible leaving the person concerned to agitate the matter in a court of law, preferably in the High Court, within a short time thereafter.
The High Court will proceed to decide the matter in the light of our Judgment.
We do hope that services are being rendered and will continue to be rendered by the various Market Committees in the light of the Judgment of this Court in Kewal Krishan Puri 's case.
If in regard to any particular Market Committee it is found that services are not being rendered or in future lapses are made then it will be open to the payers of fees to re agitate the matter in the High Court in the light of that judgment.
For the reasons stated above the appeals and writ petitions are partly allowed and partly dismissed in the manner indicated above.
There will be no order as to costs in any of them.
N.V.K. Appeals and petitions partly allowed.
| IN-Abs | The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (U.P. Act XXV of 1964) provides for the regulation of sale and purchase of agricultural produce and for the establishment superintendence and control of markets in Uttar Pradesh.
The enactment was passed for the development of new market areas and for efficient data collection and processing of arrivals in the Mandies to enable the World Bank to give a substantial help for the establishment of various markets in the State of Uttar Pradesh.
It led to the establishment of Market Areas, Principal Market Yards and Sub Market Yards and levying of the fee in relation to transactions of certain commodities in the State of Uttar Pradesh.
Various Market Committees were formed known as Mandi Samitis.
In order to give effect to the working of the Act the Uttar Pradesh Krishi Utpadan Mandi Niyamawalli 1965, being Rules under the Act were made by the Governor.
The Act was amended several times but the Rules were not accordingly amended as and when required to make them uptodate in accordance with the amended Act.
"Agricultural Produce" has been defined in clause (a) of section 2 of the Act to mean: "Such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisci culture, animal husbandry or forest as are specified in the Schedule, and includes a mixture of two or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery." while Clause (e) defines "commission agent" or "Arhatiya" to mean: "a person who, in the ordinary course of business, makes or offers to make, a purchase or sale of agricultural produce, on behalf of the owner or seller or purchaser of agricultural produce, for Arhat or commission".
105 under clause (p), ""producer" means a person who, whether by himself or through hired labour, produces, rears or catches, any agricultural produce, not being a producer who also works as a trader, broker or Dalal, commission agent or Arhatiya or who is otherwise ordinarily engaged in the business of storage of agricultural produce".
Cause (y) defines a "trader" to mean: "a person who in the ordinary course of business is engaged in buying or selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a person, engaged in processing of agricultural produce.
" Under Clause (k), 'Market Area ' means an area notified as such under Section 6, or as modified under Section 8, while 'Principal Market Yard ' has been defined under clause (o) to mean, the portion of a Market Area, declared as such under Section 7, and 'Sub Market Yard ' under clause (w) means a portion of a Market Area, declared as such under Section 7.
The State Government under section 8 has got the power to alter any market area and modify the list of agricultural produce.
Section 9 provides for the effect of declaration of Market Area.
Chapter III of the Act deals with the establishment, incorporation and constitution of the Market Committees, section 17 provides for the power of the Committee.
Clause (i) authorises a Committee to issue or renew licences under the Act on such terms and conditions and subject to such restrictions as may be prescribed.
Clause (iii) authorises a Committee to levy and collect (a) such Fees as may be prescribed for the issue or renewal of licences, and (b) market fee at the rate and in the manner provided therein.
[Though clause (b) of section 17 (iii) had undergone drastic changes from time to time, the Rules were not correspondingly amended.] Section 19 provides for the Market Committee Fund and its utilisation.
Section 19 B was introduced in the Act by U.P. Act 7 of 1978 w.e.f.
29 12 1977 providing for the establishment of 'Market Development Fund ' for each committee.
The Rule making power of the State Government is in Section 40.
Rule 66 deals with the levy of market fee, Rule 68 provides for its recovery and Rule 67 provides for licence fee.
By a State Government notification, which was issued on April 11, 1978 making it effective from May 1, 1978, almost the whole of Uttar Pradesh had been declared to be a Market Area, dividing it into 250 areas and indicating in Schedule 8 of the Notification 115 commodities in respect of which the fee could be levied by the Market Committees.
Declaration of Principal Market Yards and Sub Market Yards under Section 7 had also been made.
Various traders carrying on business in the State of Uttar Pradesh within the jurisdiction of several Market Committees challenged the levy of fee in the High Court from time to time.
There were several rounds of litigation and the writ petitions were dismissed.
On account of the litigations between the traders and the Market Committees, the working of the Committees had not successfully proceeded, as fees levied from time to time could not be 106 realised in full.
Sometimes illegal or unauthorised collections have been made.
Money justifiably realised also had not been fully utilised as it ought to have been done.
In the appeals and writ petitions to this court it was contended on behalf of the appellants and petitioners that: 1.
Big areas consisting of towns and villages have been notified as Market Areas without rendering any service, which is contrary to the whole object of the Act and the concept of fee.
No market area or market yard had been validly created.
No Mandi Samiti (Market Committee) had been validly appointed.
No machinery had been provided in the Rules for adjudication of disputes.
Fixation of minimum of 1% to be charged as market fee by all the Market Committees under section 17(iii)(b) of the Act was illegal as the requirement of and the services to be rendered by the various Market Committees could not be on the same footing.
There was no application of mind in issuing the notification dated 11 4 1978 whereby 250 market areas were notified and 115 items of agricultural produce were specified.
There could not be any multi point levy of any market fee either in the same market area or in different market areas.
The retrospective operation of the law brought about in section 17(iii)(b) by U.P. Act 7 of 1978 w.e.f. 12 6 1973 was bad.
No market fee could be levied on goods not produced within the limits of a particular market area and if produced outside and brought in such area.
No market fee could be levied both on paddy and rice.
The rice millers had been illegally asked to pay market fee on their sale of rice.
Similarly no market fee was payable on Ghee either by the producer trader of Ghee or by its purchaser.
Fee could be charged on sale of animals but could not be charged on hides and skins as was being illegally done.
Fee could be charged on wood or timber but could not be charged either on furniture manufactured from such wood or timber or on Catechu (Katha).
Wood cut and brought from the jungle by a manufacturer or paper could not be subjected to levy of fee.
Some of the items mentioned in the notification are Kirana goods brought from outside the market area or even from other States for sale in different Mandis, and cannot be subjected to the levy of market fee.
No market fee could be charged on tobacco or tendu leaves nor on bidis.
No market fee could be charged on rab salawat and rab galawat.
107 17.
No market fee can be charged if only goods are brought in a market area and despatched outside it without there taking place any transaction of purchase and sale in respect of these goods.
If no licence is issued or taken under section 9(1) of the Act then there is no liability to pay a market fee.
No market fee can be levied on transactions of match boxes, soyabin products.
No market fee can be charged from the vendors of fruits and vegetables through their Commission Agents.
Fee can be charged only on those transactions in which the seller is producer and not on any other transaction, and market fee can be charged only on those transactions in which the seller is the purchaser of agricultural produce and not on any other transaction.
^ HELD: 1.
Declaration of big areas as Market Areas does not offend any provision of law.
Any area big or small including towns and villages can be declared as Market Area under section 6 of the Act.
[121 F] 2.
The traders are required to take out licences under s.9(2) read with s.11 of the Act, for such place which is either a principal Market Yard or a sub Market Yard or at any specified place in the Market Area.
No body can be permitted to carry on his business anywhere in the Market Areas as the Market Committee will not be able to control and levy fee throughout the Market Area.
[121 G H] 3.
(i) Market Committees have not yet been constituted in accordance with the provisions contained in section 13 of the Act.
They have been constituted temporarily under Uttar Pradesh Krishi Utpadan Mandi Samitis (Alpakalik Vyawastha) Adhiniyam, 1972 which was a temporary Act, extended from year to year.
It is high time that Market Committees should be constituted in a regular manner on a permanent basis in accordance with the provisions contained in Chapter III of the Act.
[123 C] (ii) The levy and collection of fee by the temporary Market Committees is not illegal as argued on behalf of the appellants.
[123 D] Kewal Krishan Puri vs State of Punjab [1979] 3 S.C.R. 1217, referred to.
A machinery for adjudication of disputes is necessary to be provided under the Rules for the proper functioning of the Market Committees.
[123 E] 5(i) Under clause (b) of section 17(iii) of the Act a minimum and maximum limit of market fee chargeable has been fixed by the legislature.
The minimum is 1% and the maximum is 1 1/2% of the price of the agricultural produce sold.
The fixing of the minimum of 1% fee by itself is not illegal but it would be subject to the rendering of adequate services.
[123 G] (ii) The charging of 1% fee throughout the State of Uttar Pradesh by all the market Committees is not illegal and does not go beyond the quid pro quo theory discussed in Puri 's case.
[124 A] 108 6.
The notification dated 11 4 1978 indicates that in the various Districts, which number about 55, 250 Market Committees have been constituted and about 115 items have been selected in respect of which market fee has been directed to be levied.
None of the items so specified is such that it cannot be covered by the Schedule which is a part of the Act.
The definition of 'agricultural produce ' is very wide, and it is not confined to items of agricultural produce ' only but includes items of produce of horticulture, viticulture, apiculture, sericulture, pisci culture, animal husbandry or forest.
[124 C] 7(i) All the four clauses of clause (b) of section 17(iii) are mutually exclusive.
If the produce is purchased from a producer directly the trader shall be liable to pay the market fee to the Committee in accordance with sub clause (2).
But if the trader sells the same produce or any product of the same produce to another trader neither the seller trader nor the purchaser trader can be made to pay the market fee under sub clause (3).
[125 C] (ii) In a particular market area market fee cannot be levied both in relation to the transaction of purchase and sale of paddy and the rice produced from the same paddy.
Fee can be charged only on one transaction.
This finds support from the unamended Rules as they are, wherein is to be found sub r.
(2) of Rule 66.
There is nothing in the provisions of the Act or the Rules to warrant the view that in another market area the Market Committee of that area cannot levy fee on a fresh transaction of sale and purchase taking place in that area.
[125 H 126 A] 8(i) Before 1973, reading the provisions of the Act and the Rules, market fee was to be charged at such rates as specified in the bye laws of a particular Market Committee.
But it could not exceed 1/2 percentum of the price of the agricultural produce.
The liability to pay the fee was of the seller of the agricultural produce.
Market fee was liable to be paid under Rule 68(2) (ii) even if the specified agricultural produces was sold directly by the seller to the consumer.
This provision has now been superseded by an amendment in the Act brought about by U.P. Act 19 of 1979.
[127 F G] (ii) After the amendment in the Statute, Rules could apply only mutatis mutandis and wherever there was a conflict between the Rules and the Statute the latter had o prevail.
[128 D] (iii) The State Legislatures are competent to make retrospective amendment and retrospective imposition of a fee is valid.
However, in a given case and in a given situation the retrospective operation may be hit by Article 19.
[129 A B] B. Banerjee vs Anita Pan ; , M/s. section K. G. Sugar Ltd. vs State of Bihar & Ors.
[1975] 1 S.C.R. 312 and H. H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitable Endowments, Mysore [1963] Suppl.
2 S.C.R. 302 referred to.
(iv) The Rules which were framed in 1965 namely Rules 66 and 68 are very different from the present provision of law.
The Government has failed to amend the Rules and bringing it in confirmity with the amended provisions of the Statute from time to time.
The Rules will apply as far as possible so long they do not come in conflict with the Statute and even 109 without the aid of the Rules the provision in section 17(iii) (b) as it stands after the amendment brought about by U.P. Act 7 of 1978 is workable and can be given effect to.
[128 G H] In the present case the retrospectivity of the law as such is not bad and the only safeguard will be that if market fee has been realised by any Market Committee in respect of transactions of sale of agricultural produce taking place between 12 6 1973 and the coming into force of U.P. Act 7 of 1978, in accordance with law as it prevailed then, no market fee under the amended law can be realized again.
But if in respect of any transactions aforesaid market fee had not yet been realised then it can be realised in accordance with the amended provision of the law.
[129 C] 9.
No provision in the Act or the Rules limit the operation of the law in a particular market area only in respect of the agricultural produce produced in that area.
[129 G] 10(i) A producer who produces agricultural produce generally does not indulge in trading activities so as to become a trader within the meaning of clause (y).
He is covered by clause (p) only.
If a person is simply a trader indulging in trading activities he is covered by the definition in clause (y).
The expression producer trader has been coined for a person who is both a producer of agricultural produce and himself trades in it.
For the purposes of the Act he ceases to be a producer and becomes a trader only as the definition indicates.
[130 A B] (ii) If paddy is purchased in a particular market area by a rice miller and the same paddy is converted into rice and then sold the rice miller will be liable to pay market fee on his purchase of paddy from the agriculturist producer under sub clause (2) of section 17 (iii) (b).
He cannot be asked to pay market fee over again under sub clause (3) in relation to the transaction of rice.
[130 E] (iii) Market fee has to be levied and collected in relation to the transaction of paddy alone.
Otherwise there will be a risk of violation of Article 14 if it is left to the Market Committee in the case of some rice millers to charge market fee on the transaction of paddy and in the case of others to charge it when the sale of the rice takes place.
If, however, paddy is brought by the rice miller from another market area, then the Market Committee of the area where paddy is converted into rice and sold will be entitled to charge market fee on the transaction and sale in accordance with sub clause (3).
[130 F G] (iv) In transactions of Ghee, a dealer who purchases milk or cream from the villagers and others and manufactures Ghee in his plant will be liable to pay market fee because he is the producer of Ghee within the meaning of the Act and at the same time a trader in Ghee also.
When he sells Ghee to another dealer in Ghee who is simply a dealer then under sub clause (3) of Section 17(iii)(b), the manufacturing dealer will be liable to pay market fee to the Market Committee or the transaction of Ghee, but he will be entitled to pass on the burden to his purchaser.
[131 C D] 11.
The definition clause (a) of section 2 uses the expression 'animal husbandry 's by way of a descriptive one without strictly confining to the pro 110 products of animal husbandry as the additions, of the words 'specified in the schedule ' indicates.
In the schedule under the group 'husbandry products ' are mentioned item 11 hides and skins, item 12 bones, item 13 meat etc.
Market fee is, therefore, leviable on the transactions of hides and skins as no market fee can be charged on transactions of sale and purchase of animals in a market area in the State of Uttar Pradesh the same having not been included in the notification.
Had it been included in the notification, then no market fee could be charged in the same market area on hides and skins.
It could only be charged in relation to the transaction of purchase and sale of animals.
[131 H, G; 132 B C] 12.
Group E of the notification dated 11 4 1978 deals with forest products.
The items mentioned therein are (1) Gum, (2) Wood, (3) Tendu leaves, (4) Catechu, and (5) Lac.
Market fee can be charged on purchase of wood by a trader from a producer.
No fee can be charged on the sale of furniture manufactured by the purchaser of wood.
According to the Market Committees Catechu is a product from timber or trees like Gum or Lac, which trickles down from the trees, while, according to the Catechu dealers by processing of Khar trees Catechu is produced.
This question of fact is left to be decided by the Market Committees concerned in the first instance and then by a court of law.
If Catechu is a product of Khar trees by some processing as prima facie it appears to be so, it is plain that market fee can be charged only on the purchase of Khar wood and not on the sale of Catechu.
[D, F] 13.
The owner of the jungle wherefrom the wood is cut and brought will be a producer within the meaning of the Act and the licensee producer of that wood would be a purchaser of an agricultural produce within the meaning of sub clause (2) of section 17(iii) (b) of the Act liable to pay market fee.
It matters little what use is made of the wood by him.
The question of quid pro quo and service cannot be decided by a dichotomy of service to every payer of fee as held in Kewal Krishan Puri 's case.
The matter has to be judged in a broad sense and not in the sense of rendering service to every individual payer of the fee.
[133 B C] 14.
In group A VI Spices are mentioned including certain Kirana items such as Ripe Chillies, Sonf, turmeric etc.
They are sold by the Kirana dealers.
Sometimes they purchase them from the agriculturists in the same market area.
In relation to those transactions they will be liable to pay market fee under sub clause (2) of section 17(iii) (b).
More often than not such articles are brought from outside and sold by the Kirana merchants.
If they are sold to consumers, no market fee can be levied in view of the proviso added in the year 1979.
If they are sold in wholesale, then the transaction can be subjected to the levy of market fee because in a particular market area they enter into the first transaction of sale in respect of the specified agricultural produce.
[133 E F] 15.
Market fee can be charged on transaction of tobacco as it is included in group A V of the notification.
Similar is the position in regard to tendu leaves which is mentioned in group E. Bidi cannot be treated as an agricultural produce as it is not an admixture of tobacco and tendu leaves within the meaning of section 2(a) of the Act.
But if a Bidi manufacturer purchases tobacco and tendu leaves in the market area and uses them in the manufac 111 ture of bidi, he will be liable to pay market fee in relation to the transaction of tobacco and tendu leaves.
[133 G 134 A] 16.
Market fee can be levied on the first transaction of rab taking place in any market area in accordance with any of the sub clause of section 17(iii)(b), as may be applicable.
It cannot be again charged on the second transaction of rab galawat or rab salawat even assuming that it is rab.
[134 F] 17.
If goods are merely brought in any market area and are despatched outside it without any transaction of sale taking place therein, then no market fee can be charged.
If the bringing of the goods in a particular market area and their despatch therefrom are as a result of transactions of purchase and sale taking place outside the market area, it is plain that no fee can be levied.
[135 B] 18(i) Producer as defined in clause (p) of section 2 is not required to take any licence for selling his agricultural produce nor is he required to pay market fee under any of the sub clauses of section 17(iii) (b).
But if he is a producer trader in the sense explained above, then he will be required to take out a licence in accordance with section 9(2) of the Act and no body can be permitted to carry on any trade in agricultural produce in the market area without a valid licence.
[135 E] The proviso to clause (p) of section 2 will be attracted only if a question arises as to whether any person is a producer or not for the purposes of the Act and in that event the decision of the Director made after an inquiry conducted in the manner prescribed by the Rules shall be final.
If a question arises whether a person is merely a producer or producer trader the Director will have no power to decide this question.
Such a question will have to be decided by the Market Committee itself which will be subject to the final decision of a court of law.
[135 G H] (ii) The traders cannot escape their liability to pay the fee on account of their default of taking out licences.
[136 D] 19.
Market fee can be charged only on the transactions of purchase of wood and if a manufacturer of match sticks purchases wood from the producer for the purpose of manufacturing the sticks he will be required to pay market fee on such purchase of wood only and not on the sale of match sticks or match boxes.
Similarly market fee will be leviable on the transaction of purchase of soyabin and not on transaction of sale of soyabin products.
[136 E] 20.
Under sub clause (1) of section 17(iii)(b) of the Act when fruits and vegetables are sold through a commission agent by the producer then the commission agent is liable to pay the market fee and he can realise it from the purchaser of fruits and vegetables.
The burden does not fall on the producer.
The liability in the first instance is of the commission agent and finally of the purchaser of the articles.
[136 H] 21.
In the U.P. Act even traders under certain circumstances have been made liable to pay such fees.
The argument that market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction is devoid of substance.
[138 C] 112 Mangalchand Ramchandra and others etc.
vs State of Bihar approved.
If anything has been realised from the traders or any other person which goes contrary to this judgment the same should be refunded by the Market Committee concerned within six months.
The form of the order in relation to the refund of the market fee may vary from case to case depending upon the facts and circumstances of each case.
[138 D] 23.
Market fee due from the traders should be regularised and be charged in the light of this judgment, and paid within a period of six month.
If there is any disputed question of fact to be decided by the Market Committee then it should be decided as quickly as possible leaving the person concerned to agitate the matter in a court of law, preferably, in the High Court, within short time thereafter.
[138 E F]
|
ition Nos. 112 115, 175, 297, 194 198, 489 90, 459, 215, 2 3 and 432/80, 1477 of 1979, 1516B 1517/79.
(Under Article 32 of the Constitution) AND SPECIAL LEAVE PETITION (CIVIL) No. 2746 of 1980.
From the judgment and order dated the 11th February, 1980 of the High Court of Calcutta in Appeal from an order No. Nil of 1980.
A. K. Srivastava for the Petitioners in WP Nos. 213 and 175/80.
H. K. Puri for the Petitioners in WP Nos.
1516, 1517, 1477/79 and 2 3 of 1980.
M. P. Jha for the Petitioners in WP No. 297/80.
Dr. Y. section Chitale, B. P. Singh and Naresh K. Sharma for the Petitioners in WPs Nos. 112 115/80.
P. R. Mridul and D. P. Mukherjee for the Petitioners in WPs 489 490 and 432 of 1980.
A. K. Sen, section K. Sinha and C. K. Ratnaparkhi for the Petitioners in WPs.
194 198/80.
Dr. Y. S Chitale, G. section Chatterjee, and D. P. Mukherjee for the Petitioners in SLP No. 2746 of 1980.
section K. Jain for the Petitioners in WP No. 439/80.
M. K. Banerjee Addl.
and Miss A. Subhashini for the Respondent No. 3 in WP Nos.
112 115, 175/80.
Lal Narain Sinha Att.
and U. P. Singh for the Respondent State of Bihar and Its official in WP Nos.
112 115/80, 1477/79, 175, 213, 2 3, 459, 489 90/80 and SLP No. 2746/80.
M. K. Banerjee, Addl.
and section B. Sinha and D. P. Mukherjee for the Respondent No. 9 in WPs 112 115 of 1980.
Rathin Das for the Respondents (State of West Bengal) in WPs.
1516 1517/79.
section section Jauhar for the Interveners in WP No. 175/80.
The Judgment of the Court was delivered by KRISHNA IYER, J.
We have a hunch we leave it at that that these "Workers" writ petitions arc a kind of litigative puppetry.
597 the illicit mine exploiters being the puppeteers.
This set of writ petitions, where some private management claim to have the right to extract coking coal on the score that prohibition enacted in the Coal Mines (Nationalisation) Amendment Act, 1976 does 'not affect or operate on coking coal mines, must be dismissed as devoid of deserts.
The short point sharply focussed by Dr. Chitale and echoed with some variant notes by other counsel, in support of these writ petitions may be briefly stated thus.
According to him, the history of coal nationalisation legislation in this country in the seventies of this century shows that Parliament has treated coal and coking coal separately for legislative purposes in regard to taking over of management, nationalisation of ownership and the like.
It all began with the year 1971 when Parliament enacted the (hereinafter called the 1971 Act, for short).
It took over management of coking coal mines.
Iron and Steel are key industries requiring, importantly, coking coal for their very survival.
When Parliament found that coking coal was not being made available properly to the Industry on account of the unsatisfactory con duct of the private sector operating in this field, the entire management of coking coal mines.
was taken over on an emergency footing in the public interest be the 1971 Act.
Thereafter, with more deliberation and detailed investigation, the management of coking coal mines (and of other coal mines) was taken over by appropriate legislation.
Still later, after mature planning and understanding of implications, Parliament enacted legislation for vesting of ownership of coking coal Mines and eventually of all coal mines.
The Management of coking coal was taken over by the Central Government under .
The management of all other coal mines was taken over by the Central Government under the Coal Mines (Taking over of Management) Act, 1973.
The second step after management came under the control of the Central Government was the actual nationalisation of ownership itself.
This state of planning led to Parliamentary enactments of (36 of 1972) and the (26 of 1973).
The sequence of events shows the evolution of national policy in this regard.
Coking coal, being absolutely essential, was first taken over urgently.
Later on, the entire coal industry came under Parliamentary consideration and management thereof was taken over.
Finally, the ownership of all coal mines, including coking coal mines, was vested in the Central Government and in certain instrumentalities created by Central Government.
Thus we see that the comprehensive plan behind coal nationalisation did not permit of private agencies operating in the field.
Coking coal was 19 289 SCI/80 598 more strategic than ordinary coal having regard to its use for iron and steel industries.
Nevertheless, it was found as a fact that on account of these mines being located in remote places and in jungles, especially in the State of Bihar and Bengal, the Central Government wanted to take effective steps to put an end to clandestine mining by any private agency.
The jungle of laws haphazardly enacted partly helped the privateers get round the law and clandestinely or even through court receivers extract coal as there was big money in it.
Therefore, the 1976 Act was enacted to plug all loopholes, virtually banish the private sector and to ensure legal success for Project Public Sector in the field of coal mining.
Section 3(3) of the 1976 Act reads thus: 3.(3) on and from the commencement of section 3 of the Coal Mines (Nationalisation) Amendment Act.
1976: (i) the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government, or (ii) a person to whom a sub lease, referred to in the proviso to clause (c) has been granted by any such Government, company or Corporation, or (iii) a company engaged in the production of iron and steel, shall carry on coal mining operation in India, in any form; (b) excepting the mining leases granted before such commencement in favour of the Government, company or corporation, referred to in clause(a), and any sub lease granted by any such Government, company or corporation, all other mining leases and sub leases in force immediately before such commencement, shall, in so far as they relate to the winning or mining of coal, stand terminated; (c) no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause(a): Section 4 of the same Act super adds severe punishment for contravention of the prohibition contained in section 3(3).
The total effect thus is clear.
The Parliament wanted to prevent the mischief of coal P! mining and other illicit extraction of coal to the national detriment.
Scratching, slaughter mining and such like activities on the sly were regarded as defeating the nationalisation scheme.
599 Counsel for the petitioners contended that the legislative history A was relevant to the interpretation of section 3(3) of the 1976 Act.
In his submission, the amendment brought about in 1976 incorporating total interdict of mining applied only in relation to coal mines and not in relation to coking coal mine.
For this argument he sought sustenance from the existence of two sets of legislation dealing with coal mines and coking coal mines throughout the 1970s.
He further pointed out that even as late as 1978 when amendments were contemplated in regard to coal mines ' and coking coal mines ' nationalisation there were separate provisions separately inserted in both the nationalisation measures.
He cited the 1978 Act as illustrative, even decisive.
The absence of any mention of coking coal mines in the 1976 Act, was, in his submission, conclusive of the parliamentary intent in his favour, especially when read in the light of the history of the package of nationalisation legislations.
We are far from satisfied that there is substance in this submission.
History may illumine but cannot imprison interpretation.
It is true that in 1971 when Parliament was faced with a crisis regarding need for coking coal in iron and steel industries a legislation, on an emergency footing, was made solely confined to coking coal mines.
As we have earlier explained, the plan of the nation in regard to these natural resources was then embryonic and later final and there was step by step legislation to implement the policy on a phased programme.
The culmination came in the blanket ban of 1976.
We are concerned here with the interpretation of section 3(3) which we reproduce again for facility of reference at this state: 3.(3) on and from the commencement of section 3 of the Coal Mines (Nationalisation) Amendment Act, 1976, (a) no person, other than (i) the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government.
Or G (ii) a person to whom a sub lease, referred to in the proviso to clause (c) has been granted by any such Government, company or corporation, or (iii) a company engaged in the production of iron and steel, shall carry on coal mining operation, in India, in any form; .
600 (b) excepting the mining leases granted before such commencement in favour of the Government, company or corporation, referred to in clause (a), and any sub lease granted by any such Government, company or corporation, all other mining leases and sub leases in force immediately before such commencement, shall, in so far as they relate to the winning or mining of coal.
stand terminated; (c) no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause (a): Provided that the Government, company or corporation to whom a lease for winning or mining coal has been granted may grant a sub lease to any person in any area on such terms and conditions as may be specified in the instrument granting the sub lease, if the Government, company or corporation is satisfied that (i) the reserves of coal in the area are in isolated small pockets or are not sufficient for scientific and economical development in a coordinated and integrated manner, and (ii) the coal produced by sub lessee will not be required to be transported by rail.
The short question of statutory construction turns on the meaning to be assigned to the expression "no person, other than the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government. shall carry on coal mining operations in India, in any form".
The expression is semantically sweeping and is wide in meaning so as to spare no class of coal, including even coking coal, because coking coal is a species of coal, coal itself being the genus.
What is more, there is a definition of 'coal mine ' in the Coal mines (Nationalisation) Act, 1973.
Section 2(b) of the 1973 Act defines coal mine to mean "a mine in which there exists one or more seams of coal".
It is apparent that even a coking coal mine is a coal mine because the definition is broad.
It is inarguable that coking coal is not coal.
This conclusion is reinforced by looking at the definition of coking coal mine in section 3(c) of the .
Section 3(c) reads thus: "coking coal mine" means a coal mine in which there exists one or more seams of coking coal, whether exclusively or in addition to any seam of other coal.
601 Indeed, it is irrefutable, viewed literally, lexically, semantically, teleologically or applying the rule in Heydon 's case that coking coal mine is a coal mine.
If it is a coal mine it is covered by the 1976 Act.
Coking coal is more precious,, strategically speaking, than other forms of coal and it would be an error, nay a blunder, to prevent private extraction of common coal and to permit removal of coking coal.
It would be pathetic and bathetic for any policy maker to be so egregious.
Parliament may err but not be absurd ! So construed, it is obvious that coking coal, which is more importantly needed for the nation than other supplies of coal, must be the last to be squandered away by permitting it to be privately exploited.
We have no hesitation in holding that 'coal mine ' in the 1976 Act includes coking coal mine and section 3(3) of that Act clamps down the ban on extraction of coking coal also.
lt was feebly submitted that some of the mines may have fire clay layers to reach which the mining operation may have to pass through coal seams; and, therefore, such operation cannot be prohibited.
We are not impressed with this argument at all.
Even assuming there is fire clay or other layer somewhere in the bowels of the earth the statutory mandate is that once you come up on a coal seam you shall stop extracting it to proceed beyond.
Maybe, some injury may be caused, fancied or real, but it is permissible for Parliament to make provision to prevent evasion of the purpose of the statute by prohibition of mining other minerals which may incidentally defeat the coal nationalisation measure.
In this view we find no merit in any of the writ petitions and dismiss them all with costs.
It has been mentioned on more than one occasion in this court that interlocutory orders have been sought and obtained, that Receivers have been appointed by other courts and that they have been working these mines.
In the face of the statutory prohibition which is imperative in tone and all embracing in language, even punishable for violation, it is surprising that any Receiver could at all dare to work mines without running a grave risk.
The court cannot sanction the commission of a crime.
We make it perfectly plain that there will be no more authorisation for any receiver or other officer of court to extract coal or coking coal from any mine in India.
Section 3(3) of the 1976 Act, being all inclusive and having been constitutionally upheld by thus Court, it is no longer permissible for any court in India n 602 to appoint a receiver for or otherwise permit extraction of coal or coking coal.
These observations and reasonings must converge to only one conclusion that the crowd of writ petitions deserve to be and are hereby dismissed of course, with costs.
We would conclude with a conscientious query will the State keep the coal mafia out, break the coal racket where government agencies are suspect and demonstrate that, the court having come to the aid of the Executive, nationalisation will fulfil the targets and tide over the crisis ? Caesar 's wife must be above suspicion.
S.R. Petitions dismissed.
| IN-Abs | Dismissing the petitions, the Court ^ HELD 1.
"Coal Mine" in the 1976 Act includes coking coal mine and section 3(3) of that Act clamps down the ban on extraction of Coking Coal also [601B C] History may illumine but cannot imprison interpretation.
It is true that in 1971 when Parliament was faced with a crisis regarding need for coking coal in iron and steel industries, on an emergency footing was made solely confined to coking coal mines.
The plan of the nation in regard to these natural resources was then embryonic and later final and there was step by step legislation to implement the policy on a phased programme.
The culmination came in the blanket ban of 1976.
[599D E] The expression in Section 3(3) is semantically sweeping and is wide in meaning so as to spare no class of coal, including even coking coal, because coking coal is a species of coal, coal itself being the genus.
Section 2(b) of the 1973 Act defines coal mine to mean "a mine in which there exists one or more seams of coal".
Even a coking coal mine is a coal mine because the definition is broad and this is clear from the definition of coking coal mine in Section 3(c) of the .
[600E G] Coking coal is more precious, strategically speaking, than other forms of coal and it would be an error, nay a blunder, to prevent private extraction of common coal and to permit removal of coking coal.
It would be pathetic and bathetic for any policy maker to be so egregious.
Parliament may err but not be absurd! So construed, it is obvious that coking coal, which is more importantly needed for the nation than other supplies of coal, must be the last to be squandered away by permitting it to be privately exploited.
[601A B] 3.
Even assuming there is a fire clay or other layer somewhere in the bowels of the earth tho statutory mandatory is that once you come up on a coal seem you shall stop extracting it to proceed beyond.
May be some injury may be caused, fancied or real, but it is permissible for Parliament to make provision to prevent evasion of the purpose of the statute by prohibition of mining other minerals which may incidentally defeat tho coal nationalisation measure.
[601D F] 596 4.
Section 3(3) of the 1976 Act, being all inclusive and having been constitutionally upheld it is no longer permissible for any Court In India to appoint a receiver for or otherwise permit extraction of coal or coking coal.
The Court cannot sanction the commission of a crime.
[601G, H, 602A]
|
tition Nos. 1311, 1269 70, 1113, 1109, 1479 1480, 924 925, 1478, 1250 1251, 1219, 926 927, 1072 1076, 1565, 1652 1654, 1434 1435, 1648, 1306 1310, 13121314, 1590 1591, 1588 1589 of 1979 and 400, 192, 448 and 462 of 1980.
(Under Article 32 of the Constitution) A. K. Sen and section K. Sinha for the Petitioners in WP Nos.
1306 1314/79, 1434, 1113, 1109, 1250 1251, 1219, 1072 1076, 1565, 1652 1654, 1435/79 and 192/80.
588 K. N. Choubey and A. K. Srivastava for the Petitioners in WP Nos.
1269 1270, 1590 1591, 1588 1589, 924 925, 926 927/79.
M. P. Jha for the Petitioners in W.P. 1648/79.
A. K. Ganguli, for the Petitioner in W.P. Nos.
1479 1480/79.
Arun Madan for the Petitioners in W.P. No. 40()/80.
section N. Jha for the Petitioners in W.P. No. 488/80.
K. N. Choubey and Mukul Mudgal for the Petitioners in W.P. 462/80.
Lal Narain Sinha Att.
Genl., M. K. Banerjee Addl.
Sol '.
Genl., and Miss A. Subhashini for the Respondent Union of India, Central Coal Fields, Easter Coal Field in WP.
1307, 1310, 1312, 1314 and Respondent 3 in W.P. Nos.
1308,1588, 1589, 1434, 1072 1076/79.
Lal Narain Sinha Att.
and U. P. Singh for the Respondents, State of Bihar and Its officials in W.P. Nos.
1588 89, 1434, 1109, 924 925, 1250 1251, 926 927, 1219, 1250 1251, 1072, 1290 91, 1648, 1479 80, 1073 1074, 1565/79 and 400, 192, 488 and 462/80.
Lal Narain Sinha Att.
and Rathin Dass for the Respondents (West of Bengal) in W.P. Nos.
1306 1314, 1073 1074/79.
P. K. Chatterjee for the State of West Bengal in W.P. 1072/79.
A. K. Srivastava for the Caveator/Respondent No. 4 in W.P. Nos.
1652 1654 of 1979.
The Judgment of the Court was delivered by KRISHNA IYER, J.
'Survival after death ' is the expression that aptly describes these writ petitions relating to coal mining by private agencies long after a prohibitory legislation and an order by this Court repelling the challenges to the vires of that Act.
Parliament by the Coal Mines (Nationalisation) Amendment Act, 1976 (Act No. LXVII of 1976) (For short, the 1976 Act) totally prohibited all mining of coal save by instrumentalities set out in section 3, sub section (3) which we may excerpt here: (3) on and from the commencement of Section 3 of the Coal Mines (Nationalisation) Amendment Act, 1976. (a) no person, other than (i) the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government, or 589 (ii) a person to whom a sub lease, referred to in the proviso to cl.
(c), has been granted by any such Government, company or corporation, or (iii) a company engaged in the production of iron and steel shall carry on coal mining operation, in India, in any form; (b) excepting the mining leases granted before such commencement in favour of the Government, company or corporation, referred to in clause (a), and any sub lease granted by any such Government, company or corporation, all other mining leases and sub leases in force immediately before such commencement, shall, in so far as they relate to the winning or mining of coal, stand terminated; (c) no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause (a) .
Provided that the Government, company or corporation to whom a lease for winning or mining coal has been granted may grant a sublease to any person in any area on such terms and conditions as may be specified in the instrument granting the sub lease, if the Government, company or corporation is satisfied that (i) the reserves of coal in the area are in isolated small pockets or are not sufficient for scientific and economical development in a coordinated and integrated manner, and (ii) the coal produced by the sub lease will not be required to be transported by rail.
It is obvious that the provision is peremptory and the prohibition is mandatory because there is punishment provided for contravention of that provision.
Section 4(1) of the 1976 Act makes a breach of section 3(3) punishable with imprisonment.
This broad spectrum ban in law arrested the extraction of coal and was naturally assailed as ultra vires by the managements themselves in writ petitions under article 32.
A bench of seven judges of this court heard erudite and elaborate arguments, at the end of which the writ petitions were dismissed.
But it is not unusual for many litigants 'even though vanquished, to argue still '.
Here, however, the challenge and challenger are of different colour.
For, the petitioners before us 590 claim to be workmen who are thrown out of employment on account of the 1976 Act and lament in this Court that they are discriminated against and on that score the law is violative of article 14 of the Constitution.
The plea put forward is that in regard to nationalised coal mines the workmen are taken care of and their benefits assured, while in regard to coal mines where mining is prohibited by section 3(3) of the 1976 Act the workmen are left in the cold.
This is stated to be discrimination between workmen and workmen, thus contravening the mandate of equality before the law.
Maybe, the writ missiles of the managements proved damp squibs but the workers undaunted by that rebuff, want to try a new weapon of ultra vires.
The coal will go to the employers and the wages to the workers.
The Union of India resists this relief and contends that the writ petitioners are mere reincarnations of the old managements which have fought and lost and are masquerading as workmen so as to facilitate a second challenge.
The State asserts that clandestine coal mining mafia having been stopped, these racketeers are playing the maricha game through bogus workers in tears.
Without going into the merits of this averment we may state that every other conceivable objection to the validity of the 1976 Act and other sister enactments had been urged in vain before the seven judges ' bench.
Now the alleged workmen are complaining of discriminatory denial of benefits to one class of workers.
The Union of India counters this plea as factually a ruse for clandestine mining operations by management and legally a second battle after the legal Waterloo, hoping against hope that there is nothing to lose in a gamble.
Even if a spell of stay were got the gain will outweigh possible losses in litigation.
Indeed, the State 's contention is that considerable losses to Government and traumatic consequences on the nation are being daily inflicted by such clandestine operations.
The whole mischief contemplated by the 1976 Act is being continued under the guise of invalidity of the legislation and, alternatively, by going to court and getting receivers appointed so that a legal colour is imparted to lawless depradations.
It is true that nationalisation of coal, as a policy, has been evolved over the seventies.
In the beginning, the management of coal mines was taken over and at a later stage ownership itself vested in the Union of India by virtue of ownership of all coal mines is the simple and incontrovertible fact emerging from the bunch of legislation we have been taken through.
We are not going into the catena of enactments and their sequence covering this question, because they are being discussed in greater detail and fuller depth in the comprehensive judgment where reasons have yet to be given but the result, by way 591 Of brief order, has already been announced.
Suffice it to say that the 1976 Act totally prohibits working of any coal mines by any agency other than those which have been set out in section 3(3).
Surely, there is authority for the managements under whom the present petitioners are alleged to be workmen to operate coal mines in the face of the prohibition in the 1976 Act.
There is a point of dispute raised by the Union of India that the managements which have come up before this Court do not have even leases under the .
This is controverted by the other side but we may side step that issue because it is not essential for the decision of this case.
For one thing, no such lease is before us.
For another, what is relied on in some cases is hukumnamas which cannot do duty for leases.
Even granting leases and their renewal by the State itself as is asserted in a few cases, the grown and force of the law stand four square between the mines and extraction of coal by any but the agencies specified in s.3(3) of the 1976 Act.
It is common ground that there is no specification of the coal mines in question in the schedule to the nationalisation legislation of 1973, nor is there any specific notification relating thereto.
Investigation by the State or intimation by the private managements are obligatory under the appropriate legislation and in the absence of any intimation none has been produced before us we have to presume that these are no such coal mines as are set up before us.
What apparently has been done, it at all, is to do what has been described as 'scratching that is surface mining of coal bearing areas, destructive of the natural resources of the nation without any thought for the morrow and without any reference to the planned, phased programme of exploitation of coal for the benefit of the country in the public sector.
We are satisfied that on the materials placed before us in all these cases, the mines, if any, are illicitly being operated, there being no sanction of the law.
It is precisely to prevent this mischief of slaughter mining that section 3(3) was introduced and section 4 was enacted to make the activity punishable.
The proscription is comprehensive and the penalty makes it imperative.
Once we accept the position that it is not permissible to operate these mines save by those specified in the 1976 statute it necessarily follows that workmen, genuine or other, cannot claim any fundamental right to work these mines.
The prohibition of mining coal except as under section 3(3) of the 1976 Act, is in the public interest and indeed, the scheme shows that wherever public interest requires exploitation of coal mines it has been permitted in the public sector and even in the private sector so far as certain specified industries, such as iron and steel industries, are concerned.
The ban is part of a 592 national policy, conceived for conservation of a vital national resource and the wisdom of the regulation of fuel sources and their planned user is beyond argument.
therefore, the language of section 3(3) is express, explicit and admits of no exception.
An aware court will not relax when the language is peremptory, the legislation is charged with a critical purpose and even the commiserative cause of workmen not wolves in sheep 's clothing.
as is asserted, cannot override the larger cause of the nation.
No nation no workmen; Assuming for a moment that the private managements are, as Dr. Chitale and Shri A. K. Sen urged, deemed custodians within the scheme of the legislative take over, they are necessarily to operate oh behalf and under the direction of the Central Government.
Here is the Central Government protesting, as stridently as it can, against the mining operations by the alleged mine owners.
Both the State and Central Governments are making common cause and demand that no deemed custodian need ' work any mine on their behalf.
How can a surrogate custodian exceed the command of the principal to stop mining ? The whole case of the Union of India is that a clandestine cluster a sort of coal mafia which may even have got sham registers of workmen is defying Government and extracting coal on the sly.
It is audacious for the dubious managements, under whom the petitioner are supposed to be innocent workmen, to represent to the court that they are 'deemed custodians ', working on behalf of the Central Government.
Nor are we prepared to accept the naive case that the petitioners ' employers can be regarded as deemed custodians under section section We may read s '.
S of the Coal Mines nationalisation Act, 1973.
Power of Central Government to direct vesting of rights in a Government company: (1) Notwithstanding anything contained in Sections 3 and 4, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct, by an order in writing, the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall; instead of continuing vest in the Central Government, vest in the Government company either on the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day), as may be specified in the direction.
593 (2) Where the right, title and interest of an owner in relating to a coal mines vest in a Government company under sub section (1), the Government company shall on and from the date of such vesting, be deemed to have become the lessee in relation to such coal mine as if a mining lease in relation to the coal mine had been granted to the Government company and the period of such lease shall be the entire period for which such lease could have been granted under the Mineral Concession Rules; and all the rights and liabilities of the Central Government in relation to such coal mine shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government company.
(3) The provisions of sub section (2) of section 4 shall apply to a lease which vests in a Government company as they apply to a lease vested in the Central Government and references therein to the "Central Government" shall be construed as references to the Government company.
D The notification required under section 5 authorising the mine to be worked, is admittedly absent.
No such notification exists or has been hinted at or is existing.
In the absence of the relevant notification contemplated by section 5, it is impossible to postulate 'deemed custodianship '.
There are scheduled mines or notified mines, under the scheme of statutory management in the Management Take over Act.
Notifications are a sine sua non for custodian ship, actual or deemed and absent such notification taking over management no private agency can self style itself as deemed custodian.
It follows that on any view of the matter the managements other than those specified under section 3(3) of the 1976 Act can claim to extract coal from any coal mines.
If this conclusion is sound, as we have demonstrated it is, the inference is irresistible that no one can claim to extract coal as a workman, although in public interest, it is imperative that such operation should stop.
We hold that there is no violation of article 14 of the Constitution, vis a vis is the workmen concerned assuming them to be real workmen.
We have grave doubts about the veracity of this piece of workmanship that the petitioner and others of their ilk are actual, not imaginary.
Anyway, after the dismissal of the managements ' writ petitions, the argument that the Act impugned is ultra vires vis a vis workmen is a daring legal workmanship.
If a larger bench of this Court has already upheld the vires of a statute the discovery of a new argument cannot invalidate that decision.
That proposition will make the binding effect of precedents, read in the light of article 141, a vanishing cream once a novel thought strikes a legal brain.
594 The question of discrimination between two classes of workmen hardly arises because one set of mines has been closed down validly.
If the closure is valid, no one employed there has a right to force it open on the score of discrimination.
Denial of lay off or other benefits belong to a different jurisdiction.
If any workmen are really aggrieved that their interests are not protected and that their future is in jeopardy, it is certainly open to them to make representation to the Central Government for consideration of their lot, and certainly a welfare State will give due consideration for such representation if it is satisfied that he grievance is genuine.
We dismiss the Writ Petition with costs.
It has been mentioned on more than one occasion in this court that interlocutory orders have been passed, that Receivers have been appointed by civil courts, including High Courts, and that working of mines is licitly going on.
In the face of the all pervasive statutory prohibition which is peremptory in language and punishable in consequence, it is surprising that any Receiver could at all dare to work mines.
While we disapprove of that conduct we make it perfectly plain that there will be no more sanction for any receiver or other officer of court to extract coal or coking coal from any mine in India.
Section 3(3) of the 1976 Act being mandatory and having been held constitutional by this Court, it is no longer permissible for any court in India to appoint a receiver or otherwise permit extraction of coal or cooking coal.
We vacate all interim orders forthwith It may be fair to the learned Attorney General, whose hunch we share to state that this wealth of "workers" writ petitions is a kind of litigative puppetry, the illicit mine exploiters being the puppetteers and those who figure as worker petitioners being the puppets.
S.R. Petitions dismissed.
| IN-Abs | Dismissing the Writ Petitions, the Court, ^ HELD: 1.
The provision contained in Section 3(3) of Act LXVII of 1976 is peremptory and the prohibition is mandatory because there is punishment provided for contravention of that provision.
Breach of Section 3(3) is made punishable with imprisonment.
The 1976 Act totally prohibits working of any coal mines by any agency other than those which have been set out in Section 3(3).
Surely, there is no authority for the managements under whom the present petitioners are alleged to be workmen to operate coal mines in the face of the prohibition of the 1976 Act.
Even for granting leases and their renewal by the State itself, the frown and force of the law stand four square between the mines and extraction of coal by any but the agencies specified in section 3(3) of the 1976 Act [589F G, 591A, B & C] 2.
Investigation of the State or intimation by the private managements are obligatory under the appropriate legislation and in the absence of any intimation the presumption is that there are no such coal mines as are set up before the Court.
What apparently has been done, if at all, is to do what has been described as 'scratching ' that is surface mining of coal bearing areas, destructive of the natural resources of the nation without any thought for the morrow and without any reference to the planned, phased programme of exploitation of coal for the benefit of the country in the public sector.
The mines, if any, are illicitly being operated, there being no sanction of the law.
It is precisely to prevent this mischief of slaugter mining that s.3(3) was introduced and s.4 was enacted to make the activity punishable.
The proscription is comprehensive and the penalty makes it imperative.
When it is accepted that it is not permissible to operate these mines save by those specified in the 1976 statute, it necessarily follows that workmen, genuine or other, cannot claim any fundamental right to work these mines.
[591D G] 3.
The prohibition of mining as under section 3(3) of the 1976 Act, is in the public interest and indeed, the scheme shows that wherever public interest requires exploitation of coal mines it has been permitted in the public sector and even in the private sector so far as certain specified industries, such as iron and steel industries, are concerned.
The ban is part of a national policy, conceived for conservation of a vital national resource and the wisdom of the regulation of 587 fuel sources and their planned user is beyond argument.
Therefore, the language of section 3(3) is express, explicit and admits of no exception.
An aware Court will not relax when the language is peremptory, the legislation is charged with a critical purpose and even the commiserative case of workmen not wolves in sheep 's clothing, cannot override the larger cause of the nation.
No nation, no workmen.
[591G H, 592A] 4.
It is audacious for the dubious managements under whom the petitioners are supposed to be innocent workmen to represent to the Court that they are "deemed custodians" working on behalf of the Central Government.
[592D E] Under section S, notifications are a sine qua non for custodianship, actual or deemed and absent such notification taking over management no private agency can self style itself as "deemed custodian".
Therefore, the managements other than those specified in section 3(3) of the 1976 Act, can not claim to extract coal from any coal mines.
If this be so, no one can claim as a workman, although in public interest, although it is imperative that such operation should stop.
[593E F] 5.
There is no violation of Article 14 of the Constitution vis a vis the workmen concerned assuming them to be real workmen.
After the dismissal of the management 's writ petitions, the argument that the Act impugned is ultra vires vis a vis workmen is a daring legal workmanship.
If a larger Bench of this Court has already upheld the vires of a statute the discovery of a new argument cannot invalidate that decision.
That proposition will make the binding effect of precedents, read in the light of article 141 a vanishing cream once a novel thought strikes a legal brain.
[593F H] The question of discrimination between two classes of workmen hardly arises because one set of mines has been closed down validly.
If the closure is valid, no one employed there has a right to force it open on the score of discrimination.
Denial of lay off or other benefits belong to a different jurisdiction.
If any workmen are really aggrieved that their interests are not protected and that their future is in jeopardy, it is certainly open to them to make representation to the Central Government for consideration of their lot, and certainly a welfare State will give due consideration for such representation if it is satisfied that the grievance is genuine.
[594A B] 6.
Section 3(3) of the 1976 Act being mandatory and having been held constitutional by this Court, it is no longer permissible for any court in India to appoint a receiver or otherwise permit extraction of coal or cooling coal.
[594D E]
|
Civil Appeal No. 6 of 1954.
Appeal from the judgment and order dated the 8th day of June 1951 of Calcutta High Court in Income tax Reference No. 1 of 1951.
R. J. Kolah and P. K. Ghosh, for the appellant.
552 G. N. Joshi, Porus A. Mehta and R. H. Dhebar, for the respondent.
May 8.
The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal with certificate under section 66 A(2) of the Indian Income tax Act, 1922 from the judgment and order passed by the High Court of Judicature at Calcutta on a reference under section 66(1) of the Act, whereby the High Court answered the referred question in the negative.
The appellant is a timber merchant.
On 5th February 1930.
he obtained a loan of Rs. 1 lakh from the Bank of India on the joint security of himself and one Mamraj Rambhagat.
On the same day Mamrai Rambhagat obtained a loan of Rs. 1 lakh from the Imperial Bank of India.
, Bombay on the joint security of himself and the appellant.
The appellant paid off his loan of Rs.
I lakh to the Bank of India but Mamraj Rambhagat failed to make good the amount of his loan to the Imperial Bank of India, Bombay.
This sum of Rs. 1 lakh was realised by the Imperial Bank of India from the appellant with interest thereon of Rs. 626 on 24th March 1930.
Mamraj Rambhagat failed in his business and his estate went into the hands of the receivers on 25th April 1930.
The appellant opened a ledger account in the name of Mamraj Rambhagat and the total amount of Rs. 1,00,626, was debited to this account.
The appellant received the dividends from the receivers: Rs.31,446 on 30th October 1930, Rs. 9,434 on 25th April 1934 and Rs. 4,716 on 17th May 1938, aggregating to Rs. 45 596 leaving a balance of Rs. 55,030 unpaid, which sum he wrote off as bad debt in the assessment year 1941 42 (the account year being 1997 Ramnavmi) and claimed as an allowable deduction under section 10 of the Act.
The Income tax Officer disallowed the claim holding that the said loss was a capital loss, and so did the Appellate Assistant Commissioner.
It was argued on behalf of the appellant before the Appellate Assis 553 tant Commissioner that it was the usual custom in Bombay to secure loans on joint security from Banks by persons carrying on business.
It was stated that this manner of securing loans on joint security was preferred by the Banks and it was also in the interest of the traders as lower rate of interest was charged, if the loan was on joint security.
It was also stated that the appellant used to borrow money on joint security frequently and certain old pro notes jointly executed were submitted before the Appellate Assis tant Commissioner.
Reference was made to the case of Commissioner of Income tax, Madras vs section A. section Ramaswamy Chettiar(1), where it was held that it was a custom amongst Nattukottai Chettiars to stand surety for one another for borrowing from ' Banks for the purpose of lending out at higher rates of interest and that the loss incurred under the agreement of guarantee by the Chettiar firm should be allowed as a deduction.
The Appellate Assistant Commissioner, however, distinguished the case on facts and held that even though the appellant stood surety for Mamraj Rambhagat in course of securing finance for his business of timber, it was the loss of a sum borrowed by another, the sum borrowed was capital in its nature and the loss suffered by the appellant on account of Mamraj Rambhagat 's failure to pay was a capital loss.
On appeal taken by the appellant before the Income Tax Appellate Tribunal, the Tribunal was of the opinion that the Appellate Assistant Commissioner had not expressed any opinion in his order as to whether there was such custom or not nor had he asked the appellant to establish the custom.
The Tribunal in these circumstances held that the custom was accepted by the Department.
The Tribunal did not see any distinction between the money lending business and timber business which were both financed by this type of borrowing and differing from the Appellate Assistant Commissioner followed the decision in Commissioner of Income tax, Madras V. section A. section Ramaswamy Chettiar (supra)., and came to (1) 554 the conclusion that the loss suffered by standing surety was an allowable loss and upheld the contention of the appellant.
At the instance of the respondent the Tribunal stated a case to the High Court under section 66(1) of the Act and referred the following question for its decision: "Whether on the facts found the sum of Rs. 55,030 is allowable as a bad debt under the provisions of section 10(2)(xi) of the Indian Income tax Act".
The said reference was heard by the High Court and in its judgment the High Court held that the Tribunal had proceeded on an erroneous assumption as to the facts of the case and the application of the money. ' Since ' no part of the loan, which had been taken from the Imperial Bank of India by Mamraj Rambhagat on the joint security of himself and the appellant, was applied to the appellant 's own business, there was no question of an allowable deduction in relation to the business of the appellant.
The High Court held that the Tribunal was in error even in law inasmuch as under section 10(2) (xi) it is only a trading.
or business debt of the trade or business of the appellant, which could be claimed as a loss and as the debt claimed was not in respect of the business of the appellant, which was the business of trading in timber and not of a person carrying on the business of standing surety for other persons, the loss suffered by the appellant was a capital loss and not a business loss at all.
Regarding the decision relied upon by the Tribunal, the High Court referred to a later decision in Commissioner of Income tax, Madras vs section R. Subramanya Pillai(1), which held that the earlier decision must be read as confined to its peculiar facts and not applicable to business other than money lending business of Nattukottai Chettiars.
The High Court, therefore, answered the referred question in the negative.
Hence this appeal.
The sole question for our determination in this appeal is whether the loss of Rs. 55,030 suffered by the appellant in this transaction was a capital loss or (1) 555 was a trading loss or a bad debt incurred by the appellant in the course of carrying on his business of timber.
It is clear that no part of the monies borrowed on the joint security of the appellant and Mamraj Rambhagat from the Imperial Bank of India, Bombay went to finance the timber business of the appellant, but they were all utilised by Mamraj Rambhagat in his own business.
These monies were not required to finance the timber business of the appellant, nor was the debt due by Mamraj Rambhagat and in respect of which the account was opened by the appellant in his ledger in the name of Mamraj Rambhagat a debt due by Mamraj.
Rambhagat to the timber business of the appellant.
If any monies had been borrowed by the appellant in his timber business, they would certainly have been his capital and whatever loss he incurred therein would have been his capital loss.
The manner in which these monies were sought to be connected with the timber business and treated as a trading loss or bad debt of the timber business was by showing that it was the custom amongst the persons carrying business in Bombay to borrow monies from Banks on joint security and if A wanted monies for financing his business, he could do so by asking B to join him as surety, but he could not ask B to join him as such unless he stood surety for B in the loans which B borrowed in his turn from the Bank.
A s joining B as surety was thus a consideration for B 's joining A as surety in his transaction with the Bank and, therefore, although no part of the monies borrowed by B came into the business of A, A joined B as surety for the purpose of financing his own business, which he could not do without B joining him as surety in the loan which he himself obtained from the Bank for the purpose of financing his own business.
The transaction of A 's joining B as surety in the matter of B 's procuring a loan for the financing of his business was thus an essential operation of the financing of A 's business and was, therefore, an incident of A 's business and any loss incurred by A in the transaction could thus be treated as a trading loss in the course of carrying on of A 's 72 556 business.
The loss incurred by the appellant in the transaction of his joining Mamraj Rambhagat as surety in the loan which Mamraj Rambhagat procured from the Imperial Bank of India could, it was urged, thus be treated as a trading loss or bad debt of the appellant 's timber business.
It is necessary, therefore, to see what is the exact nature and scope of the custom said to have been accepted by the Department.
The custom stated ' before the Appellate Assistant Commissioner was that persons carrying on business in Bombay used to borrow monies on joint security from the Banks in order to facilitate getting financial assistance from the Banks and that too at lower rates of interest.
A businessman could procure financial assistance from the Banks on his own, but he would in that case have to pay a higher rate of interest.
He would have to pay a lower rate of interest if he could procure as surety another businessman, who would be approved by the Bank.
This, however, did not mean that mutual accommodation by businessmen was necessarily an ingredient part of that custom.
A could procure B, C or D to join him as surety in order to achieve this objective, but it did not necessarily follow that if A wanted to procure B, C or D to thus join him as surety, he could only do so if he in his own turn joined B, C or D as surety in the loans, which B, C of D procured in their turns from the Banks for financing their respective businesses.
Unless that factor was established, the mere procurement by A of B, C or D as surety would not be sufficient to establish the custom sought to be relied upon by the appellant so as to make the transaction of his having joined Mamraj Rambhagat as surety in the loan procured by Mamraj Rambhagat from Imperial Bank of India, a transaction in the course of carrying on his own timber business and to make the loss in the transaction a trading loss or a bad debt of the timber business of the appellant.
The old pronotes jointly executed by the appellant and others, which were submitted before the Appellate Assistant Commissioner did not carry the case of the appellant far enough and stopped 557 short of proving the custom alleged by the appellant in, its entirety.
The transaction in question could not, 'therefore, be.
deemed to be one entered into by the appellant in the course of or in carrying on his timber business.
Procuring finances for his timber business would no doubt be an essential operation in the course of his carrying.
on his business, but the same thing could not be predicated of this transaction of his joining Mamraj Rambhagat as surety for procuring Rs. 1 lakh from the Imperia Bank of India, which was wholly to finance Mamraj Rambhagat 's business and not the timber business of the appellant.
Learned counsel for the appellant laid particular emphasis on the finding by the Appellate Assistant Commissioner that "it was in the course of securing finance for the business of timber that he stood surety with Mamraj Rambhagat".
This finding merely records the statement of fact, but does not go so far as to establish the custom sought to be relied upon by the appellant.
The old pronotes submitted by the appellant before the, Appellate Assistant Commissioner merely related to his own transactions, where he had been joined by others as surety and did not establish that the others had been similarly accommodated by him in the matters of loans which they had in their turn procured from the Banks.
The solitary instance of the appellant 's having joined Mamraj Rambhagat in the transaction in question could not be sufficient to establish the custom sought to be relied upon by him and we do not see any reason to enlarge the scope of the so called custom beyond what is warranted by the facts as set out in the order passed by the Appellate Assistant Commissioner.
The custom among the Nattukottai Chettiars held proved in Commissioner of Income tax, Madras vs section A. section Ramaswamy Chettiar (supra) was that they stood surety for one another, when they borrowed from Banks for the purpose of lending out at higher rates of interest.
It was, moreover, an essential element in the carrying on of a money lender 's business that 558 money, which Was thus lent out should be procured and that could not be done unless it was borrowed on the joint security of Nattukottai Chettiars, who stood surety for one another.
Unless that type of suretyship was resorted to, a Nattukottai Chettiar by himself could never procure any monies which he could invest in his money lending business.
The following passage from the judgment at page 238 is every apposite: "It is their custom to borrow from banks for the purpose of lending out the sums so obtained at higher rates of interest.
The banks require such overdrafts to be guaranteed by other Chettiars.
The Chettiars stand surety for one another in these borrowings.
If a Chettiar refused to accommodate another moneylender in this way, he would not be able to obtain a guarantor for his own essential borrowings.
The assessee in this case borrowed money on the guarantee of others and in turn stood surety for other Chettiars".
There were thus elements of mutuality and the essential ingredient in the carrying on of the money lending business, which were elements of the custom proved in that case, both of which are wanting in the present case before us.
It is significant to note that this case was distinguished by the learned Judges of the Madras High Court in Commissioner of Income tax, Madras V. section B. Subramanya Pillai (supra), where it was held that that decision must be confined to its own peculiar facts and does not apply to businesses other than Nattukottai Chetty money lending business.
In that case the assessee was a bookseller, who borrowed from time to time jointly with one L a sum of Rs. 16,200 out of which the assessee took a sum of Rs. 10,450 for his business needs and L took the balance.
The joint borrowing was necessitated by the business needs of both the borrowers and by the insistence of money lenders, who required the joint security of the two persons.
L failed in his business and the assessee had to repay the creditors the whole of the joint borrowing.
The assessee had also to 559 spend a sum of Rs. 658 in an unsuccessful attempt to recover the amount due from L.
The assessee 'Claimed to deduct the sum of Rs. 658 and also the sum of Rs. 520495 which he had to pay the creditors on account of L 's share of the joint loan; in the computation of his business profits.
It was held that the assessee was not entitled to deduct these sums in the computation of his business profit either under sec tion 10 (2) (xi) or section 10 (2) (xv) or as business loss.
This case furnishes the proper analogy to the present case and points to the right conclusion in regard to the claim of the appellant.
The following passage from the judgment of the learned C. J. under appeal correctly sums up, in our opinion, the whole position: "The debt must therefore be one which can properly be called a trading debt and a debt of the trade, the profits of which are being computed.
Judged by that test, it is difficult to see how The debt in the present case can be said to be a debt in respect of the business of the assessee.
The assessee is not a person carrying on a business of standing surety for other persons.
Nor is he a money lender.
He is simply a timber merchant.
There seems to have been some evidence before the Appellate Assistant Commissioner that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person.
But it is not established, nor does it seem to have been alleged, that he in his turn was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit.
Even if such, had been the case, any loss suffered by reason of having to pay a debt borrowed for the benefit of another, would have been a capital loss to him and not a business loss at all.
The result, therefore, is that the appeal fails and must stand dismissed with costs.
Appeal dismissed.
| IN-Abs | The appellant who was a timber merchant obtained a loan from the Bank of India on the joint security of himself and a third party, M.
On the same day M obtained a loan from the Imperial Bank of India on the joint security of himself and the appellant.
M failed in his business and the Imperial Bank of India realised the amount of the loan from the appellant who after getting some dividends from the receivers, wrote off the balance as bad debt in the assessment year in question and claimed it as an allowable deduction under section 10 of the Indian Income tax Act, 1922 on the footing that it was in the course of securing finances for the business of timber that he stood surety with M and that it was the usual custom to secure loans on the joint security from Banks by persons carrying on business.
It was not established that the appellant was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit.
Held, that the debt in question could not be considered a debt in respect of the.
business of the assesses who was not a person carrying on a business of standing surety for other persons and that, in any event, the loss suffered by reason of having to pay a debt borrowed for the benefit of another would be a capital loss and not a business loss and was not an allowable deduction under section 10(2) (xi) of the Indian Income tax Act.
Commissioner of Income tax, Madras vs section A. section Bamaswamy Chettiar ([1946] , distinguished.
Commissioner of Income tax, Madras vs S, B. Subramanya Pillai ([1950] , approved.
|
Civil Appeal No. 2686 of 1979.
From the Judgment and order dated 27 8 1979 of the Delhi High Court in Civil Writ Petition No. 844/78.
R.K. Garg and C. M. Nair for the Appellant.
H.S. Marwah for the Respondent No. 6.
V.M. Tarkunde and P. P. Juneja for Respondent No. 7.
Lal Narain Sinha Att.
Genl., Abdul Khader and Miss A. Subhashini for the Union of India.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The judgment in this appeal is really an appendix to the judgment pronounced by us in Civil Appeal No. 2112 of 1979.
The relevant facts may be gathered from that judgment.
The further events requiring to be mentioned are these: While the Writ Petition filed by Ahluwalia in the High Court of Himachal Pradesh was pending, some of the respondents to the Writ Petition and one R. R. Verma all direct recruits, chose to file a Writ Petition in the Delhi High Court questioning the notice dated June 29, 1979, calling upon them to submit representations against the year of allotment proposed to be allotted to Sahney, Dhaliwal and Ahluwalia.
After the Writ Petition of Ahluwalia was allowed, and after the Central Government passed the order dated July 27, 1979, pursuant to the direction issued by the High Court of Himachal Pradesh, the Delhi High Court dismissed the Writ Petition filed by the direct recruits as infructuous.
The High Court, however, granted a certificate of fitness to appeal to this Court under Article 133 of the Constitution.
Therefore, this appeal.
The Writ Petition having been dismissed as infructuous we do not see how a certificate under Article 133 could have been granted.
But, we do not want to dismiss the appeal on that preliminary ground.
Shri R. K. Garg, learned counsel for the appel 481 lants challenged the order of the Central Government dated July 27, 1979 on three grounds: (1) Rule 3 of the All India Services (Conditions of Service residuary matters) Rules, offended Article 14 of the Constitution and was ultra vires as it conferred arbitrary and uncanalised power upon the Central Government to grant relaxation whenever it pleased it to do so.
(2) The discretion to relax the rules was wrongly exercised in the present case.
(3) The Central Government was powerless to review its earlier orders as such a power of review was not expressly conferred by the rules.
The second question has already been considered by us in Civil Appeal No. 2112 of 1979 and we have held that this was a fit case for the exercise of the power of the Central Government to relax the rules.
The first question is about the Constitutional validity of rule 3 of the All India Services (Conditions of Service residuary matters) Rules 1960.
Rule 3 is as follows: "3.
Power to relax rules and regulations in certain cases Where the Central Government is satisfied that the operation of (i) any rule made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or (ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, be order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions, as it may consider necessary for dealing with the case in a just and equitable manner".
The submission of Shri Garg was that the rule conferred upon the Central Government absolute and arbitrary discretion, a discretion left entirely to the satisfaction of the Government, Government with no prescribed objective standards or guidelines.
It is true that the rule is couched in a language suggestive of near autocratic power reminiscent of "bad old days" of the Imperial Raj but, we have no doubt that the rule is not meant to vest the Central Government with power to pass any order they like with a view to promote the interests 482 of a favoured Civil servant.
It is really meant to relax, in appropriate cases, the relentless rigour of a mechanical application of the rules, so that civil servants may not be subjected to undue and undeserved hardship.
Sufficient guidance can be had from the very rule and from the scheme of the various statutory provisions dealing with the conditions of service of Members of the All India Service.
Section 3 of the All India Services Act enables the Central Government in consultation with the Governments of the States concerned to make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service.
Pursuant to the power given by Section 3 of the All India Services Act the Central Government has made innumerable sets of rules, some common to all the All India Services and some applicable separately to each of the All India Services.
The All India Services (Leave) Rules, the All India Services (Conduct) Rules, the All India Services (Discipline and Appeal) Rules, the All India Services (Travelling Allowance) Rules, and the All India Services (Conditions of Service residuary matters) Rules are examples of rules made under Section 3 of the All India Services Act which are common to all the All India Services.
The Indian Police Service (Cadre) Rules, the Indian Police Service (Recruitment) Rules, the Indian Police Service (Probation) Rules, the Indian Police Service (Regulation of Seniority) Rule are examples of rules made under section 3 of the All India Services Act applicable to a single All India Service namely, the Indian Police Service.
The rules, as may be seen, deal with countless matters which concern a civil servant, such as creation of cadres, fixation of Cadre Strength, recruitment, seniority, promotion, leave, allowances, conduct, discipline and appeal, and a host of such other matters.
The golden thread, if we may so call it, which runs through the entire complex fabric of rules is the securing of honest and competent civil servants.
Integrity and efficiency are the hall marks of any civil service anywhere and they are what are contemplated and aimed at by the wide range of rules.
The interest to be served is always the public interest and not individual interest.
Public interest, in the matter of the conditions of service of civil servants, is best served by rules which are directed towards efficiency and integrity.
Now, very wide as the range covered by the rules is, the rules can never be exhaustive.
Unforeseen and complex situations often arise as will be obvious even from a bare perusal of the cases reported in the Law Journals arising out of "service controversies".
Very often it is found that an all too strict application of a rule works undue hardship on a civil servant, resulting in injustice and inequity, causing disappointment and frustration to the civil 483 servant and finally leading to the defeat of the very object aimed at by the rules namely efficiency and integrity of civil servants.
Hence it is that the Central Government is vested with a reserve power under rule 3 to deal with unforeseen and unpredictable situations, and to relieve the civil servants from the infliction of undue hardship and to do justice and equity.
It does not mean that the Central Government is free to do what they like, regardless of right or wrong; nor does it mean that the Courts are powerless to correct them.
The Central Government is bound to exercise the power in the public interest with a view to secure civil servants of efficiency and integrity, and when and only when undue hardship is caused by the application of the rules, the power to relax is to be exercised in a just and equitable manner but, again, only to the extent necessary for so dealing with the case.
We do not have to add that the exercise of the power of relaxation like all other administrative action affecting rights of parties is subject to judicial review on grounds now well known.
Viewed in this light we do not think that Rule 3 is unconstitutional on the ground that it vests an unfettered discretion in the Government.
The last point raised by Shri Garg was that the Central Government had no power to review its earlier orders as the rules do not vest the Government with any such power.
Shri Garg relied on certain decisions of this Court in support of his submission : Patel Narshi Thakershi & Ors.
vs Pradvamunsinghji Arjunsinghji, D. N. Roy and section K. Bannerjee & Ors.
vs State of Bihar & Ors.
, and State of Assam & Anr.
vs J. N. Roy Biswas.
All the cases cited by Shri Garg are cases where the Government was exercising quasi judicial powers vested in them by statute.
We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature.
To extend the principle to pure administrative decisions would indeed lead to untoward and startling results.
Surely, any Government must be free to alter policy or its decision in administrative matters.
If they are to carry on its their daily administration they cannot be hide bound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected.
Here again, we emphasise that if administrative decisions are reviewed, the decisions 484 taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court.
We see no force in this submission of the learned counsel.
The appeal is, therefore, dismissed.
S.R. Appeal dismissed.
| IN-Abs | One Sri Ahluwalia a senior member of the Indian Police Service sought to quash the decision of the Union of India dated 26 6 1976 whereby his year of allotment was fixed as 1965.
When the Writ Petition of Sri Ahluwalia was pending in the High Court of Himachal Pradesh, some of the respondents in that Writ Petition and one R. R. Verma all direct recruits, choose to file a Writ Petition in the Delhi High Court questioning the notice dated June 29, 1973 calling upon them to submit representations against the year of allotment proposed to be allotted to M/s. Sahney, Dhaliwal and Ahluwalia.
After the Writ Petition of Ahluwalia was allowed, and after the Central Government passed the order dated July 27, 1979, pursuant to the direction issued by the High Court of Himachal Pradesh to Union of India to refix the seniority and year of allotment to Sri Ahluwalia, the Delhi High Court dismissed the Writ Petition filed by the direct recruits as infructuous.
The High Court, however granted a certificate of fitness to appeal to this Court under Article 133 of the Constitution.
Dismissing the appeal, the Court ^ HELD: 1.
The Writ Petition having been dismissed as infructuous it is not proper on the part of the High Court to grant a certificate of fitness under Article 133 of the Constitution.
[480G H] 2.
Rule 3 of the All India Services (Conditions of Service residuary matters) Rules, 1960 is couched in a language suggestive of near autocratic power reminiscent of "bad old days" of the Imperial Raj but, the rule is not ment to vest the Central Government with power to pass any order they like with a view to promote the interests of a favoured Civil servant.
It is really meant to relax.
In appropriate cases, the relentless rigour of a mechanical application of the rules, so that civil servants may not be subjected to undue and undeserved hardship.
Sufficient guidance can be had from the very rule and from the scheme of the various statutory provisions dealing with the conditions of service of Members of the All India Service.
[481G H, 482A B] 3.
Rule 3 is not unconstitutional on the ground that it vests an unfettered discretion in the Government.
Section 3 of the All India Services Act enables 479 the Central Government in consultation with the Governments of the States concerned to make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service.
Pursuant to the power given by Section 3 of the All India Services Act the Central Government has made innumerable sets of rules, some common to all the All India Services and some applicable separately to each of the All India Services.
The All India Services (Leave) Rules, the All India Services (Conduct) Rules, the All India Services (Discipline and Appeal) Rules, the all India Services (Travelling Allowance) Rules, and the All India Services (Conditions of Service residuary matters) Rules are examples of rules made under Section 3 of the All India Services Act which are common to all the All India Services.
The Indian Police Service (Cadre) Rules, the Indian Police Service (Recruitment) Rules, the Indian Police Service (Probation) Rules, the Indian Police Service (Regulation of Seniority) Rules are examples of rules made under section 3 of the All India Services Act applicable to a single All India Service, namely, the Indian Police Service.
The rules deal with countless matters which concern a civil servant, such as creation of cadre, fixation of Cadre Strength, recruitment, seniority, promotion, leave, allowances, conduct, discipline and appeal, and a host of such other matters.
The golden thread, which runs through the entire complex fabric or rules is the securing of honest and competent civil servants.
Integrity and efficiency are the hall marks of any Civil service anywhere and they are what are contemplated and aimed at by the wide range of rules.
The interest to be served is always the public interest and not individual interest.
Public interest, in the matter of the conditions of service of civil servants, is best served by rules which are directed towards efficiency and integrity.
[482B G & 483D] Now very wide as the range covered by the rules is, the rules can never be exhaustive.
Unforeseen and complex situations often arise.
Very often it is found that all too strict application of a rule works undue hardship on a civil servant.
resulting in injustice and inequity, causing disappointment and frustration to the civil servant and finally leading to the defeat of the very objects aimed at by the rules namely efficiency and integrity of civil servants.
Hence it is that the Central Government is vested with a reserve power under rule 3 to deal with unforeseen and unpredictable situations, and to relieve the civil servants from the infliction of undue hardship and to do justice and equity.
It does not mean that the Central Government is free to do what they like, regardless of right or wrong; nor does it mean that the Courts are powerless to correct them.
The Central Government is bound to exercise the power in the public interest with a view to secure civil servants of efficiency and integrity, and when and only when undue hardship is caused by the application of the rules, the power to relax is to be exercised in a just and equitable manner but, again, only to the extent necessary for so dealing with the case Moreover, the exercise of the power of relaxation like all other administrative action affecting rights of parties is subject to judicial review on grounds now well known.
[482G H, 483A C] 4.
It is not correct to say that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature.
To extend the principle to pure administrative decisions would indeed lead to untoward and startling re 480 sults.
Surely, any Government must be free to alter its policy or its decision in administrative matters.
If they are to carry on their daily administration they cannot be hide bound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected.
Again, if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court.
[483F H, 484A] Patel Narshi Thakershi and Ors.
vs Pradvamunsinghji Arjunsinghji, AIR 1970 SC 1273; D. N. Roy and section K. Banerjee and Ors.
vs State of Bihar and Ors.
, ; and State of Assam and Anr.
vs J. N. Roy Biswas [1976] 2 S.C.R. 128, distinguished.
|
Civil Appeal No. 1385 of 1979.
Appeal by Special Leave from the judgment and Order dated 10 7 1969 of the Assam & Nagaland High Court in Civil Rule No. 249 of 1967.
B. Datta for the Appellant.
A. R. Barthakur, section K. Nandy and P. Bharthakur for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment and order dated 10th JULY 1969 of the High Court of Assam and Nagaland.
The facts giving rise to the appeal lie within a very narrow compass.
The respondent, Dr. Md. section Iskender Ali, was appointed on a purely temporary basis to the post of a medical officer in the Oil and Natural Gas Commission.
Under the terms and conditions of his service, he was to remain on probation for a period of 605 One year which could be extended at the discretion of the appointing authority.
The respondent was appointed on October 15, 1965 and the order of his appointment may be extracted thus: "No. 52/35/65 ENT Dated the 15th October 1965 MEMORANDUM With reference to his interview on the 18th August 1965 held at Sibsagar, Shri Dr. Md. section Iskender Ali is hereby informed that he/she has been selected for a temporary post of Medical officer in the Oil & Natural Gas Commission on an initial pay of Rs. 325/ p.m. in the scale of pay of Rs. 325 25 500 31 EB 30 800 (plus non practising allowance @ 25% of basic pay subject to minimum of Rs. 150/ ).
He will be entitled to draw dearness and other allowances at such rates and subject to such conditions as may be laid down in the rules and orders governing the grant of such allowances from time to time.
" The order of appointment was accompanied by conditions regulating his appointment and two of them may be extracted below, as they appear to be very relevant for the purpose of deciding the question at issue : "(ii) The appointment may be terminated at any time by one month 's notice to be given by either side, viz., the appointee or the appointing authority, without assigning any reasons.
The appointing authority, however, reserves the right of terminating the services or the appointee without notice or before expiration of the stipulated period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof; (iii) He will be on probation for a period of one year from the date of appointment.
This period may be extended at the discretion of the appointing authority, if necessary.
During the period of probation, the services are liable to be terminated at any time without notice, and/or assigning any reasons whatsoever.
" It appears that during the period of his probation there were some reports against the respondent as a result of which a departmental enquiry was held against him but which does not appear to have been proceeded with nor was any punishment imposed on him.
After he 606 had completed the period of one year on 15 10 1966 his probation was extended for another six months and before his services were terminated, there was no express order either confirming him or extending the period of probation.
Ultimately, by an order dated 28th July 1967 the services of the respondent were terminated with effect from 28th July 1967.
The order of termination runs thus: "No. 57/191/67 ENT Dated July 28, 1967 OFFICE ORDER Under para 2(iii) of offer of appointment No. 52/35/65 ENT dated October 16, 1965 the service of Dr. Md. Iskender Ali, Medical officer (still on probation), is hereby terminated with effect from the date of the service of this order on him.
" The respondent felt aggrieved by the termination of his services and filed a writ petition in the High Court on the ground that the order terminating his services was mala fide and was in fact passed by way of penalty entailing evil consequences.
The plea taken by the respondent found favour with the High Court which allowed the petition and quashed the order of the appellant terminating the services of the respondent.
The appellant obtained special leave to appeal from this Court: hence the appeal has now been posted before us for hearing.
The only point raised before us by the appellants was that as the respondent was a mere Probationer and the order terminating his services was all order of termination simpliciter without involving any stigma or penalty, the High Court was in error in quashing the order or termination and directing the reinstatement of the respondent.
The counsel for the appellants submitted that reading the order per se there is nothing to indicate that it was passed by way of punishment.
As the respondent was a temporary employee on probation, it was open to the employer to terminate his services at any time before he was confirmed.
If the employer was satisfied that he was not suitable for being retained in service.
The counsel for the respondent.
On the other hand, submitted that the order, though per se innocuous? was really a cloak to conceal the real mischief which the order purported to perpetuate as the order of termination was preceded by a full fledged departmental inquiry and a regular charge sheet was submitted against the respondent, it was because the respondent was found guilty that he was punished by way of dismissal from service.
In other words, the argument of the respondent was that the order of termination of the 607 services passed by the appellant was an order which amounted to A. dismissal from service involving a clear stigma and would, therefore, attract the provisions of article 311 of the Constitution and was rightly quashed by the High Court Before examining the respective contentions of the parties it may be necessary to mention a few admitted facts (1) It is not disputed that the respondent was appointed in a temporary post of Medical Officer and on probation of one year.
(2) Being a probationer, the respondent had no right to the service.
(3) Under the terms of his appointment particularly clauses (ii) and (iii), extracted above, the appointing authority could terminate the services without assigning any reasons.
(4) Under clause (iii) of the conditions of appointment, the appointing authority had a discretion to extend the period of probation and to terminate the services of the respondent without any notice and without giving any reasons whatsoever.
(5) After the respondent had put in one year 's probation, his period of probation was extended for a further period of six months which is a clear pointer to the fact that the appointing authority was not convinced that the respondent had satisfactorily completed the period of his probation.
The confidential roll reflecting the assessment of the work of the respondent during the period 31 12 1965 to 30 12 1966 clearly shows that the officer was careless and lacking in sense of responsibility.
The report also shows that the reporting officer recommended that the period of probation should be extended.
In accordance with the recommendation, the period of probation was further extended by six months.
The learned counsel for the respondent submitted that the remarks made in the assessment roll went to show that the intention of the appointing authority was to proceed against the respondent by way of punishment.
We are, However, unable to agree with this submission.
It is obvious that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained.
The remarks, in the assessment roll, merely indicate the nature of the performance put in by the officer 608 for the limited purpose of determining whether or not his probation should be extended.
These remarks were not intended to cast any stigma.
In the case of R. L. Butail vs Union of India & Ors this Court while indicating the nature of assessment made by the reporting officer observed as follows: "These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comperative merit when questions of promotion, confirmation, etc., arise.
" It was then vehemently contended by the respondent that as the appointing authority chose to institute a departmental inquiry against the respondent for dereliction of duty and negligence in not attending to a baby who died due to his carelessness, the enquiry should have been carried to its logical end and charge sheet having been framed, the provisions of article 311 of the Constitution were clearly attracted and therefore it was not open to the appellants to have terminated the services by giving the order a cover of termination simpliciter.
In other words, the contention was that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirements of article 311 of the Constitution, the order impugned was illegal.
We are, however, unable to agree with this argument.
In the first place, it has been clearly pleaded by the Government in its counter affidavit that although an enquiry was held yet it was not continued and no punishment was imposed on the respondent.
In this connection, relevant portion of paragraph 11 of the counter affidavit before the High Court may be extracted: "A preliminary enquiry was made before the charge was framed and on the enquiry report a prima facie case having been found against the petitioner due charge was framed against him.
No punishment under Regulation 28 of oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulation was inflicted on the petitioner.
" In these circumstances, therefore, it is obvious that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job.
It is well settled by a long course of decisions of this Court that 609 in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his services is valid and does not attract the provisions of article 311 of the Constitution.
In the case of Shamsher Singh & Anr.
vs State of Punjab, the matter was considered in all its aspects by a Constitution Bench comprising seven Judges of this Court and the Court adumbrated the following pro positions: "Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged.
No punishment is involved in this.
The fact of holding an inquiry is not always conclusive.
What is decisive is whether the order is really by way of punishment.
A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could hot claim the protection of Article 311 (2) .
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311.
Where a departmental enquiry is contemplated and if an enquiry is not in Act proceeded with Article 311 will not be attracted unless it can he shown that the order though unexceptionable in form is made following a report based on misconduct.
" Similarly, the matter was previously considered in Parshotam Lal Dhingra vs Union of India where the following observations were "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to 610 get the emoluments and other benefits attached thereto.
But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and can not, therefore, by itself be a punishment.
One test for deter mining whether the termination of the service of a Govern men servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.
If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311.
In other words and broadly speaking article 311(2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank.
To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules, is, prima facie and per se, not a punishment and does not attract the provisions of article 311.
" All these decisions were reviewed in the case of State of U.P. vs Ram Chandra Trivedi where this Court observed as follows: "Keeping in view the principles extracted above, the respondent 's suit could not be decreed in his favour.
He was a temporary hand and had no right to post.
It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month 's notice.
The order to which exception is taken is ex facie an order of termination of service simpliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.
We, therefore, agree with the submission made on be half of the appellant that the High Court was in error in arriv 611 ing at the finding that the impugned order was passed by way of punishment by probing into the departmental correspondence that passed between the superiors of the respondent overlooking the observations made by this Court in I. N. Saksena vs State of Madhya Pradesh ; that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research.
" The facts of the present case appear to be on all fours with those of the aforesaid decision.
From the undisputed facts detailed by us in an earlier part of the judgment, it is manifest that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment.
The matter was again considered at great length by a recent decision of this Court in the case of State of Maharashtra vs Veerappa R. Saboji & Anr., where Untwalia, J., observed thus: "Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant.
In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order.
" Applying the principles enunciated by this Court in various cases to the facts of the present case, the position is that the order impugned is prima facie an order of termination simpliciter without involving any stigma.
The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service.
The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment.
612 Reliance was, however, placed by the respondent on a decision of this Court in the case of The State of Bihar vs Gopi Kishore Prasad, where it was held that although termination of the service of a person holding the post on probation cannot be said to deprive him of any right to the post and is no punishment but where instead of terminating a person 's service the employer choose to hold an enquiry into his alleged misconduct and proceeds by way of a punishment, such a course involves a stigma and an order of termination is bad.
Such, however, is not the case here.
The short history of the service of the respondent clearly shows that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even e though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him.
In these circumstances, therefore, if the appointing authority considered it expedient to terminate the services of the respondent a probationer it cannot be said that the order of termination attracted the provisions of article 311 of the Constitution.
Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned as held and observed by this Court in the cases cited above.
For these reasons, therefore, we are satisfied that the order terminating the services of the respondent was valid and did not involve any stigma and was fully justified in the facts and circumstances of the present case.
The High Court, therefore, erred in law in quashing the.
impugned order.
For these reasons, we allow this appeal, set aside the.
judgment and decree of the High Court and hold that the order terminating the services of the respondent was valid in law.
In the circumstances of the case, there will be no order as to costs.
S.R. Appeal allowed.
| IN-Abs | The respondent was appointed on a purely temporary basis to the post of a medical Officer in the Oil and Natural Gas Commission.
Under the terms and conditions of service, he was to remain on probation for a period of one year which could be extended that the discretion of the appointing authority He was appointed on October 15, 1965.
During the period of his probation, on a report against him for negligence and dereliction of duty, a departmental enquiry was held against him but that was not proceeded with, nor was any punishment imposed on him.
His period of probation was extended for six months from 15 10 1966 and before his services were terminated, there was no express order either confirming him or extending the period of probation.
His services were terminated with effect from 28th July 1967.
The respondent filed a writ petition in the High court on the ground that the order terminating his services was malafide and was in fact passed by way of penalty entailing evil consequences The plea taken by the respondent found favour with the High Court which allowed the petition and quashed the order of the appellant terminating the services of the respondent.
Hence the appeal by special leave by the State.
Allowing the appeal the Court ^ HELD: l.
A temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained.
The remarks, the assessment roll merely indicate the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended.
These remarks were not intended to cast any stigma.
[607G H. 608A] R. L. Butail vs Union of India followed 2.
The contention that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirements of Article 311 of the Constitution, the order impugned was illegal is not correct.
In the first place, it was clearly pleaded by the Government in its counter affidavit that although an enquiry was held it was not continued and no punishment was imposed on the respondent.
As the respondent was merely a probationer the appointing, authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job.
In the case of n probationer or a temporary employee.
who has no right to the post, such a termina 604 tion of his service is valid and does not attract the provisions of Article 311 of the Constitution [608C E, G H, 609A] Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such power flowed from the R contract of service it could not be termed as penalty or Punishment.
[611C D] Shamsher Singh and Anr.
vs State of Punjab ; ; Purshottam Lal Dhingra vs Union of India ; ; State of U.P. vs Ram Chand Trivedi ; ; State of Maharashtra vs Veerappa R. Saboji and Anr. ; , followed.
The order impugned is prima facie an order of termination simpliciter without involving any stigma.
The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service.
The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment The short history of the service of the respondent clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him.
In these circumstances therefore, if the appointing authority considered it expedient to terminate the services of the respondent a probationer it cannot be said that the order of termination attracted the provisions of article 311 of the Constitution.
Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned.
[611G H, 612B D] State of Bihar vs Gopi Kishore Parsad A.I.R. 1960, 689; distinguished.
|
Civil Appeal No. 1085 of 1970.
Appeal by Special Leave from the Judgment and Order dated 17.
3. 1969 of the Delhi High Court in SAD No. 2/69.
P. R. Mridul and O. P. Sharma for the Appellant.
section K. Bisaria for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI,J.
This appeal by special leave is directed against a judgment of the Delhi Court and arises out of an application filed by Respondent No. 1 who claimed to be the tenant of the appellant, recalling the warrant of possession issued by the Controller in pursuance of a decree dated 31 7 1961 passed against the 1st respondent.
The case had a rather chequered career having passed through several phases.
To begin with the landlord appellant executed a lease in respect of the disputed premises in favour of Respondent No. 2 for three years as far back as 1.4.1942.
In 1948, a suit was brought by the appellant for eviction of the tenant for non payment of rent on the ground of conversion of the user of the premises.
The suit for possession was however dismissed but a decree dated 31.
1948 for arrears of rent was passed and it was held that Laxmi Bank was the real tenant.
Subsequently, the Bombay High Court ordered the 446 Bank to be wound up and in the winding up proceedings, the said High Court appointed an Official Liquidator who on 16.
2. 1961 sold the tenancy rights to Respondent No. 1 section N. Jain.
This sale was confirmed by the High Court on the same date and as a result there of respondent No. 1 took possession of the premises on 24.2.1961.
On 5. 4.
1961, the land lord appellant filed an application under the Delhi Rent Control Act for eviction of Laxmi Bank.
On 31. 7. 1961, a decree for eviction was passed in favour of the landlord appellant.
On 23 1 1963.
Respondent No. 1 filed a suit for a declaration that he was a tenant of the landlord appellant.
This suit was dismissed for non prosecution on 5.5.1964 and an application to set aside the ex parte decree was also dismissed and the appeal against that order also failed.
Thereafter Respondent No. 1 filed an application under section 25 of Delhi Rent Control Act (hereinafter referred to as the Act) for recalling the warrant of possession issued by the Court in pursuance of the decree dated 31.7.1961 in favour of the landlord.
The present appeal arises out of these proceedings.
The Rent Controller allowed the application and recalled the warrant of possession by its Order dated 20.
12. 1966.
The matter was then taken up by the landlord in appeal to the Rent Control Tribunal which by its Order dated 25.
1968 reversed the order of the Rent Controller and dismissed the tenant 's application.
A second appeal against the order of Tribunal was then filed by the tenant to the High Court which reversed the order of the Rent Control Tribunal and restored the order of the Rent Controller, hence this appeal by special leave.
Mr. Mridul appearing for the appellant challenged before us the findings of the High Court on point nos.
1 & 3 which are formulated at page 91 of the judgment of the Delhi High Court.
These points may be extracted thus: "(1) The application made by the appellant before the High Court under section 25 was not barred by reason of the dismissal of the appellants suit for default of appearance under Order IX Rule 9, C.P.C. (3) The transfer to the appellant by the Official Liquidator of the tenancy rights being voluntary did not come within the mischief of section 14(1)(b) of the Act.
In the first place it was argued that so far as point No. 1 is concerned, the High Court was wrong in holding that the application of Respondent No. 1 was not barred by the reason of the dismissal of the appellant 's suit for setting aside the ex parte decree by the principle of Res Judicata or Order IX Rule 9 C.P.C.
It was contended that 447 even if the previous suit filed by respondent No. 1 for declaration of his status as a tenant was dismissed for default but as the application for setting aside the decree also failed, there was an adjudication against the then plaintiff respondent No. 1 and therefore the present suit was clearly barred by the principles of Res Judicata or Order IX Rule 9.
At any rate there can be no escape from the position that the application of respondent No. 1 would be clearly barred by the principle contained in Order IX Rule 9, C.P.C.
In case of Suraj Ratan Thirani & Ors.
vs The Azamabad Tea Co. & Ors.(1) this Court held thus: "We are not however impressed by the argument that the ban imposed by O. IX, r. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him.
Beyond the absence in O. IX, r. 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant this argument.
It has neither principle, nor logic to commend it .
The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for de fault had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward.
" In the instant case it was appellant who brought the previous suit which resulted in a decree for eviction of the tenant on 31 7 1961 a date when the 1st respondent had already taken possession of the premises by virtue of transfer made by the Official Liquidator.
Thus the identity of the subject matter being substantially the same, this case clearly falls within the ambit of the ratio in the case supra.
On this ground alone therefore the appellant is entitled to succeed because the High Court with due respect does not appear to have properly construed the scope of Order IX Rule 9 C.P.C.
There is however nothing to show that respondent No.1 was tenant within the meaning of Rent Control Act so as to maintain an application under section 25 of the Act when in fact he was an unlawful sub lessee.
As regards point No. 3, the High Court relying on a decision of Calcutta High Court in Krishna Das Nandy vs Bidhan Chandra Roy(2) has found that as the transfer in favour of respondent No. 1 by the Official Liquidator was confirmed by the Court, the status of the tenant by respondent No. 1 was acquired by operation of law and therefore the transfer 448 was an involuntary transfer and the provisions of Rent Control Act would not be attracted.
After careful perusal of Calcutta case, in the first place it appears that the section concerned has not been extracted and we are not in a position to know what was the actual language of the section of the Bengal Act.
Secondly, in our opinion, the official liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the official liquidator had transferred the tenancy interest to respondent No. 1 under the orders of the Court, it was on behalf of the original tenant.
It was undoubtedly a voluntary sale which clearly fell within the mischief of s.14(1)(b) of the Delhi Rent Control Act.
Assuming that the sale by the official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by section 14(b) of Delhi Rent Control Act.
section 14(b) runs thus: "14(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises with out obtaining the consent in writing of the landlord.
" The language of section 14(b) is wide enough not only to include any sub lease but even an assignment or any other mode by which possession of the tenanted premises is parted.
In view of the wide amplitude of s.14(b) we are clearly of the opinion that it does not exclude even an involuntary sale.
Fore these reasons therefore we are unable to agree with the view taken by the High Court.
The appeal is accordingly allowed, the judgment and decree of the High Court are set aside and the plaintiff 's application under section 25 of the Delhi Rent Control Act is dismissed.
Mr. Bisaria, learned counsel appearing for the respondent submitted that as the tenant has been in the premises for a period of 19 years and is conducting business therein, he may be permitted sufficient time to make alternative arrangements.
Mr. Mridul appearing for the appellant fairly conceded that he would have no objection if one year 's time is allowed to the respondent provided he gives an undertaking for handing over peaceful and vacant possession at the expiry of the time.
We therefore allow time to the respondent to vacate the premises on or before 15th April, 1981 on the condition that he files an undertaking within two weeks to the effect (1) that he shall hand over vacant and peaceful possession to the landlord on or before 15th April, 1981; (2) that he shall not induct any per son on the premises; (3) that he shall go on paying the compensation for wrongful use of premises equivalent to the rent.
449 The undertaking must be filed supported by an affidavit within two weeks from today failing which the order granting time shall stand revoked.
There will be no order as to costs.
S.R. Appeal allowed.
| IN-Abs | The appellant landlord executed a lease in respect of the disputed premises in favour of respondent 2 for three years as far back as 1 4 1942.
In 1948, a suit was brought by the appellant for eviction of the tenant for non payment of rent on the ground of conversion of the user of the premises.
The suit for possession was however dismissed but a decree dated 31 11 1948 for arrears of rent was passed and it was held that Laxmi Bank was the real tenant.
Subsequently, the Bombay High Court ordered the Bank to be wound up and in the winding up proceedings, the High Court appointed an Official Liquidator who on 16 2 1961 sold the tenancy rights to respondent No. 1.
The sale was confirmed by the High Court on the same date and as a result thereof respondent No. 1 took possession the premises on 24 2 1961.
On 5 1 1961, the landlord appellant filed an application under the Delhi Rent Control Act for eviction of Laxmi Bank.
On 31 7 1961, a decree for eviction was passed in favour of the appellant.
On 22 1 1963, respondent No. 1 filed a suit for declaration that he was a tenant of the landlord appellant.
The suit was dismissed for non prosecution on 5 5 1964 and an application to set aside the ex parte order was also dismissed and the appeal against that order also failed.
Thereafter respondent No. 1 filed an application under Section 25 of the Delhi Rent Control Act for recalling the warrant of possession issued by the Court in pursuance of the decree dated 31 7 1961 in favour of the appellant.
The Rent Controller allowed it on 20 12 1966.
An appeal to the Rent Controller Tribunal was ordered by order dated 25 11 1968 in favour of the appellant.
A second appeal filed by respondent No. 1 to the High Court was allowed in his favour and the Rent Controller 's order allowing recalling of the warrant of possession was restored.
Hence the appeal by special leave by the landlord.
Allowing the appeal, the Court ^ HELD: 1.
The application of respondent No. 1 under Section 25 of the Delhi Rent Control Act is clearly barred by the principle contained in order IX Rule 9 Civil Procedure Code.
It was the appellant who brought the previous suit which resulted in a decree for eviction of the tenant on 31 7 1961 a date when the Ist respondent had already taken possession of the premises by virtue of transfer made by the Official Liquidator.
There is nothing to show that respondent No. 1 was a tenant within the meaning of Delhi Rent Control 445 Act so as to maintain an application under section 25 of the Act, when in fact he was an unlawful sub lessee.
[447A, E, F G] Suraj Ratan Thirani and Ors.
vs Azamabad Tea Co. and Ors. ; ; applied.
The language of section 14(b) of the Delhi Rent Control Act is wide enough not only to include any sub lease but even an assignment or any other mode by which possession of the tenanted premises is parted.
In view of the wide amplitude of section 14 (b), it does not exclude even in involuntary sale.
[448D E] In the instant case, the official Liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the official liquidator had transferred the tenancy interest to respondent No. 1 under the order of the Court, it was on behalf of the original tenant.
It was undoubtedly a voluntary sale which clearly fell within the mischief of section 14 (1) (b) of the Delhi Rent Control Act.
Assuming that the sale by the Official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by section 14 (b) of Delhi Rent Control Act.
[448A C] Krishna Das Nandy vs Bidhan Chandra Roy, A.I.R. 1959 Cal.
181 Overruled.
|
Civil Appeal No. 2592 of 1972.
Appeal by Special Leave from the Judgment and Order dated 9 11 1971 of the Andhra Pradesh High Court in Case Referred No. 4 of 1970.
section T. Desai, T. A. Ramachandran, Mrs. J. Ramachandran and M. N. Tandon for the Appellant.
section C. Manchanda, Miss A. Subashini and D. B. Ahuja for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal, by special leave, is directed against a judgment of the Andhra Pradesh High Court, concerning the scope of section 271(1)(c) of the Income Tax Act, 1961.
The assessee is an Abkari contractor.
It filed a return of its income for the assessment year 1959 60, disclosing a total turnover of Rs. 10,92,132 and an income of Rs. 7,704.
The Income Tax Officer did not accept the correctness of the return.
He found that on 12th December, 1957 and 16th January 1958 the excess of expenditure over the disclosed available cash as Rs. 17,720 and Rs. 650,66 respectively.
He also noticed several deposits, totaling Rs. 28,200, entered in the names of certain Sendhi shop keepers.
The assesee 's explanation that the excess expenditure was met from amounts deposited with him by some shop keepers but not entered in his books was not accepted.
The alternative explanation that expenditure incurred earlier had possibly been recorded later was also rejected.
In regard to the cash deposits of Rs. 28,200 the assessee explained that they represented amounts deposited with it as security.
That explanation was rejected insofar as deposits totalling Rs. 21,000 were concerned.
The Income Tax Officer rejected the account books of the assessee and estimated the assessee 's income on an overall figure of Rs. 5,00,018.
In appeal before the Appellate Assistant Commissioner and thereafter before the Income Tax 621 Appellate Tribunal, the assessee succeeded in getting the assessed income reduced to Rs. 1,30,000 in addition to the book profits.
Penalty proceeding were taken against the assessee and the case was referred to the Inspecting Assistant Commissioner.
The assessee reiterated the explanation which it had offered in the assessment proceedings.
Predictably, the Inspecting Assistant Commissioner rejected the explanation and held that the items of cash deficit and cash deposits represented concealed income resulting from the suppressed yield and low selling rates mentioned in the books.
He observed that the assessee had concealed the particulars of his income and furnished inaccurate of it, and therefore imposed a penalty of Rs. 75,000 under s.271(1)(c) of the Income Tax Act, 1961.
On appeal by the assessee, the Appellate Tribunal held that there was no positive material to establish that the cash deposits represented concealed income.
In regard to the cash deficits, the Appellate Tribunal noticed that for the assessment year 1957 58 an addition of Rs. 2,00,000 had been made to the book profits and it observed that some part of that amount could have been ploughed back into the business.
It held that an amount of Rs. 90,000 representing unledgerised cash credits of that year could be said to have been introduced in this year.
Allowing the appeal, the Appellate Tribunal set aside the penalty order made by the Inspecting Assistant Commissioner.
At the instance of the Commissioner of Income Tax, the following question was referred to the High Court: "Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that no penalty is leviable ?" The High Court held that the Appellate Tribunal was not justified in holding that no penalty was leviable.
In this appeal, it is urged by learned counsel for the assessee that the High Court erred in interfering with a finding of fact, that the penalty proceedings being quasi criminal the burden of proof lay on the Revenue to establish that a penalty was attracted and that the intangible addition of Rs. 2,00,000 represented real income and the Appellate Tribunal was right in considering that an amount of Rs. 90,000 was available to cover the cash deficits.
Section 271(1)(c) of the Income Tax Act, 1961 provides: "271(1).
If the Income Tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act is satisfied that any person (a) * * * * 622 (b) * * * * (c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income he may direct that such person shall pay by way of penalty. . . . " This is the provision as it stood at the relevant time.
It is now settled law that an order imposing a penalty is the result of quasi criminal proceeding and that the burden lies on the Revenue to establish that the disputed amount represents income and that the assessee has consciously concealed the particulars of his income or has deliberately furnished inaccurate particulars.
Commissioner of Income Tax, West Bengal and Another vs Anwar Ali.
It is for the Revenue to prove those ingredients before a penalty can be imposed.
Since the burden of proof in a penalty proceeding varies from that involved in an assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted as a finding to that effect in the penalty proceeding.
In the penalty proceeding the taxing authority is bound to consider the matter afresh on the material before it and, in the light of the burden to prove resting on the Revenue, to ascertain whether a particular amount is a revenue receipt.
No doubt, the fact that the assessment order contains a finding that the disputed amount represents income constitutes good evidence in the penalty proceeding but the finding in the assessment proceeding cannot be regarded as conclusive for the purposes of the penalty proceeding, That is how the law has been understood by this Court in Anwar Ali (supra), and we believed that to be the law still.
It was also laid down that before a penalty can be imposed the entirety of the circumstances must be taken into account and must point to the conclusion that the disputed amount represents income and that the assessee has consciously concealed particulars of his income or deliberately furnished inaccurate particulars.
The mere falsity of the explanation given by the assessee, it was observed, was insufficient without there being in addition cogent material of evidence from which the necessary conclusion attracting a penalty could be drawn.
These principles were reiterated by this Court in Commissioner of Income Tax, Madras vs Khoday Eswarsa and sons.
In the present case, the Appellate Tribunal has relied entirely on the basic that an intangible addition of Rs. 2,00,000 had been made to the book profits of the assessee for the assessment year 1957 58 623 and it inferred that an amount of Rs. 90,000 was available for being put to use in the year with which we are concerned.
Now it can hardly be denied that when an "intangible" addition is made to the book profits during an assessment proceeding, it is on the basis that the amount represented by that addition constitutes the undisclosed income of the assessee That income, although commonly described as "intangible", is as much a part of his real income as that disclosed by his account books.
It has the same concrete existence.
It could by available to the assessee as the book profits could be.
In Lagadapati Subha Ramiah vs Commissioner of Income tax, Madras the Andhra Pradesh High Court adverted to this aspect of secret profits and their actual availability for application by the assessee.
That view was affirmed by the Madras High Court in section Kuppuswami Mudliar vs Commissioner of Income Tax, Madras.
There can be no escape from the proposition that the secret profits or undisclosed income of an assessee earned in an earlier assessment year may constitute a fund, even though concealed, from which the assessee may draw sufficient for meeting expenditure or introducing amounts in his account books.
But it is quite another thing to say that any part of that fund must necessarily be regarded as the source of unexplained expenditure incurred or of cash credits regarded during a subsequent assessment year.
The mere availability of such a fund cannot, in all cases, imply that the assessee has not earned further secret profits during the relevant assessment year.
Neither law nor human experiences guarantees that an assessee who has been dishonest in one assessment year is bound to be honest in a subsequent assessment year.
It is a matter for consideration by the taxing authority in each case whether the unexplained cash deficits and the cash credits can be reasonably attributed to a pre existing fund of concealed profits or they are reasonably explained by reference to concealed income earned in that very year.
In each case the true nature of the cash deficit and the cash credit must be ascertained from an overall consideration of the particular facts and circumstances of the case.
Evidence may exist to show that reliance cannot be placed completely on the availability of a previously earned undisclosed income.
A number of circumstances of vital significance may point to the conclusion that the cash deficit or cash credit cannot reasonably be related to the amount covered by the intangible addition but must be regarded as pointing to the receipt of undisclosed income earned during the assessment year under consideration.
It is open to the Revenue to rely on all the circumstances pointing to 624 that conclusion.
What those several circumstances can be is difficult to enumerate and indeed, from the nature of the enquiry, it is almost impossible to do so.
In the end, they must be such as can lead to the firm conclusion that the assessee has concealed the particulars of his income or has deliberately furnished inaccurate particulars.
It is needless to reiterate that in a penalty proceeding the burden remains on the Revenue of proving the existing of material leading to that conclusion.
The Appellate Tribunal erred in law in confining itself to the fact that an intangible addition had been added to the assessee 's book profits two years before and that a part of that amount remained available to the assessee thereafter, the High Court is right in departing from that limited approach and in insisting on a consideration of all the relevant facts and circumstances of the case relied on by the Revenue for purpose of determining whether the Revenue has succeeded in discharging its burden.
But while considering the legal principles involved in the application of section 271(1)(c) the High Court, in our opinion, has erred in entering into the facts of the case and determining in point of fact that the assessee earned income during the relevant previous year and that he was guilty of concealing such income or furnishing inaccurate particulars of it.
Having found that the legal basis underlying the order of the Appellate Tribunal was not sustainable, the High Court should have limited itself to answering the question raised by the reference in the negative, leaving it to the Appellate Tribunal to take up the appeal again and redetermine it in the light of the law laid down by the High Court.
It is the Appellate Tribunal which has been entrusted with the authority to find facts.
A High Court is confined to deciding the question of law referred to it on facts found by the Appellate Tribunal.
That is the kind of order we now propose to make.
Because the finding of the Appellate Tribunal that no penalty leviable rests on an erroneous legal basis, we endorse the opinion of the High Court that the question referred must be answered in the negative.
But as the High Court should not have rendered findings of fact, we vacate the finding of fact reached by the High Court, without expressing any opinion on their correctness, leaving it to the Appellate Tribunal in exercise of its duty under section 260(1) of the Income Tax Act to take up the appeal and to redetermine it conformably to this judgment and in the light of the principle laid down in it.
The appeal is disposed of accordingly.
There is no order as to costs.
S.R. Case remitted to Tribunal.
| IN-Abs | The appellant, assessee in an Abkari contractor.
It filed a return of its income for the assessment year 1959 60, disclosing a total turnover of Rs. 10,92,132/ and an income of Rs. 7,704/ .
The Income Tax Officer did not accept the correctness of the return.
He found that on 12th December, 1957 and 16th January, 1958 the excess of expenditure over the disclosed available cash was Rs. 17,726/ and Rs. 65,066 respectively.
He also noticed several deposits, totalling Rs. 28,200, entered in the names of certain Sendhi shopkeepers.
The Income Tax Officer rejected the account books of the assessee and his explanations for the discrepancies thereof and estimated the assessee 's income on an overall figure of Rs. 5,00,018.
In appeal before the Appellate Assistant Commissioner and thereafter before the Income Tax Appellate Tribunal the assessee succeeded in getting the assessed income reduced to Rs. 1,30,000 in addition to the books profits.
Penalty proceedings were taken against the assessee and the case was referred to the Inspecting Assistant Commissioner, who imposed a penalty of Rs. 75,000 under section 271(1)(c) of the Income Tax Act, 1961.
On appeal by the assessee, the Appellate Tribunal held that there was no positive material to establish that the cash deposits represented concealed income.
In regard to the cash deficits, the Appellate Tribunal noticed that for the assessment year 1957 58 an addition of Rs. 2,00,000 had been made to the book profits, and it observed that some part of that amount could have been ploughed back into the business.
It held that an amount of Rs. 90,000 representing unledgerised cash credits of that year could be said to have been introduced in that year.
Allowing the appeal, the Appellate Tribunal set aside the penalty order made by the Inspecting Assistant Commissioner.
On a reference to the High Court, at the instance of the Commissioner of Income Tax, the High Court held that the Appellate Tribunal was not justified in holding that no penalty was leviable.
Hence the appeal by special leave.
Directing the Appellate Tribunal to take up the appeal under section 260(1) of the Income Tax Act, the Court ^ HELD: An order imposing a penalty is the result of quasi criminal proceedings.
The burden of proof lies on the Revenue to establish that the disputed amount represents income and that the assessee has consciously concealed the particulars of his income or has deliberately furnished inaccurate particulars.
It is for the Revenue to prove these ingredients before a penalty can be imposed.
[622B C] 619 Since the burden of proof in a penalty proceeding varies from that involved in an assessment proceedings a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted as a finding to that effect in the penalty proceeding.
In the penalty proceeding the taxing authority is bound to consider the matter afresh on the material before it and, in the light of the burden to prove resting on the Revenue, to ascertain whether a particular amount is a revenue receipt.
No doubt, the fact that the assessment order contained a finding that the disputed amount represents income constitutes good evidence in the penalty proceeding but the finding in the assessment proceeding cannot be regarded as conclusive for the purposes of the penalty proceeding.
Before a penalty can be imposed the entirety of the circumstances must be taken into account and must point to the conclusion that the disputed amount represents income and that the assessee has consciously concealed particulars of his income or deliberately furnished inaccurate particulars.
The mere falsity of the explanation given by the assessee is insufficient without there being in addition cogent material or evidence from which the necessary conclusion attracting a penalty could be drawn.
[622C G] Commissioner of Income Tax, West Bengal and Anr.
vs Anwar Ali ; Commissioner of Income Tax, Madras vs Khoday Eswara and Sons, ; applied.
When an 'intangible ' addition is made to the book profits during an assessment proceeding, it is on the basis that the amount represented by that addition constitutes the undisclosed income of the assessee.
That income although commonly described as 'intangible ', is as much a part of his real income as that disclosed by his account books.
It has the same concrete existence.
It could be available to the assessee as the book profits could be.
[623A B] 3.
Secret profits or undisclosed income of an assessee earned in an earlier assessment year may constitute a fund, even though concealed, from which the assessee may draw subsequently for meeting expenditure or introducing amounts in his account books.
Any part of that fund need not necessarily be regarded as the source of unexplained expenditure incurred or of cash credits recorded during a subsequent assessment year.
The mere availability of such a fund cannot, in all cases, imply that the assessee has not earned further secret profits during the relevant assessment year It is a matter for consideration by the taxing authority, in each case, whether the unexplained cash deficits and the cash credits can be reasonably attributed to a pre existing fund of concealed profits or they are reasonably explained by reference to concealed income earned in that very year.
In each case the true nature of the cash deficit and the cash credit must be ascertained from an overall consideration of the particular facts and circumstances of the case.
Evidence may exist to show that reliance cannot be placed completely on the availability of a previously earned undisclosed.
income.
A number of circumstances of vital significance may point to the conclusion that the cash deficit or cash credit cannot reasonably be related to the amount covered by the intangible addition but must be regarded as pointing to the receipt of undisclosed income earned during the assessment year under consideration.
It is open to the Revenue to rely on all the circumstances pointing to that conclusion.
What those several circumstances can be is difficult to enumerate and indeed, from the nature of the enquiry, it is almost impossible to do so.
However, they must be such as can lead to the firm conclusion that 620 the assessee has concealed the particulars of his income or has deliberately furnished inaccurate particulars.
[623C H, 624A] Lagadapti Subha Ramiah vs Commissioner of Income Tax, Madras, ; section Kuppuswami Mudaliar vs Commissioner of Income Tax, Madras, ; approved.
In an income tax reference, a High Court should confine itself to deciding the question of law referred to it on facts found by the Appellate Tribunal.
It is the Appellate Tribunal which has been entrusted with the authority to find facts.
[624D E]
|
ivil Appeal Nos.
2526/77 and 2413/78.
From the Judgment and order dated 17 5 1975 of the Punjab and Haryana High Court in LPA Nos. 633, 671, 694/73 and 609/73.
AND Writ Petition Nos.
520 524 of 1980.
(Under Article 32 of the Constitution) Jawahar Lal Gupta and section Ghose for the Appellant in CA 2526/77 P. R. Mridul, M. R. Agnihotri and P. C. Bhartari for the Appellant in CA 2413/78.
O. P. Sharma and M. section Dhillon for the State of Punjab in both the appeals.
464 Lal Narain Sinha Att.
Abdul Khader and Miss section Subashini for the Union of India in all the appeals.
H. L. Sibal, R. K. Garg and R. section Sodhi for Respondent No. 10 in CA 2526 and RR11 in CA 2413.
R. K. Garg and R. section Sodhi ' for the Petitioners in WP Nos.
520 524 of 1980.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
In these appeals we have once again to consider career conscious competing claims to seniority which appear so much to dominate the lives and careers of our Civil Servants that a large bulk of the cases in this Court relate to the resolution of problems arising out of such claims.
So much of our time is taken up in discovering the precise facts of these intricate problems that we wonder whether the constitution of a fact finding administrative tribunal who should invariably be approached in the first instance will not better serve the cause of successful administration.
An administrative tribunal possessing the necessary expertise and familiarity with administrative procedures and rules may be able to deal with the problems in a satisfactory way.
At least the facts will be found and the relevant rules will be known.
Thereafter aggrieved parties may approach the Courts for further relief within the confines of Articles 226 and 32 of the Constitution.
On selection by the Punjab Public Service Commission, B. R. Kapur and Harjeet Singh were directly recruited, in 1951, as Deputy Superintendents of Police in the Punjab Police Service.
They are the appellants in Civil Appeal Nos. 2413 of 1978 and 2526 of 1977 respectively.
B. R. Kapur was senior to Harjeet Singh as Deputy Superintendent of Police.
In 1960 both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service (Appointment by Promotion) Regulations 1955.
On November 24, 1960, B. R. Kapur was appointed as Assistant Inspector General of Police which post was a cadre post.
In May, 1961, B. R. Kapur was appointed as Director of Sports and Youth Programme and Deputy Secretary to Government, Sports Department.
The post was a non cadre post.
He held this post upto November 18, 1962 and thereafter he was appointed as Additional Controller of Stores, Punjab which was also a non cadre post.
He continued to hold the post of Additional Controller of Stores till 1965.
From July 19, 1965, he was Commandant, 40th Battalion, PAP, J & K, which was a cadre post.
He held the post till July 11, 1966, when he took over as Commandant of 25th Battalion, PAP.
On the reorganisation of the State of Punjab, he 465 was appointed as Assistant Inspector General of Police, State of Punjab from November 1, 1966.
Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3, 1969.
Shri Harjeet Singh was appointed to officiate as Superintendent of Police in December, 1960.
The post was a cadre post.
He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3, 1969.
After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arose for the consideration of the Government of India.
Shri B. R. Kapur was allotted to the year 1963 and placed below Sube Singh and above Shri section R. Sharma (direct recruits) in the Indian Police Service Gradation List of Punjab.
The period of his service as Director of Sports and Youth Programme and as Additional Controller of Stores was not taken into consideration as both the posts were non cadre posts.
His service as Commandant of 25th Battalion was also not taken into account on the ground that the 25th Battalion had been taken over by the Government of India and therefore the post of Commandant of the 25th Battalion was a non cadre post.
He was, therefore, treated as having continuously officiated in a senior cadre post from November 1, 1966 only.
On that basis he was allotted to the year 1963.
In the case of Harjeet Singh, though admittedly he officiated continuously in a senior cadre post from December, 1960 he was also allotted to the year 1963 and placed below Shri B. R. Kapur on the ground that he ranked below Shri B. R. Kapur in the select list.
B. R. Kapur and Harjeet Singh filed Writ Petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963 to them for the purpose of seniority in the Indian Police Service.
The learned Single Judge of the High Court who heard the petitions in the first instance held that there was no reason at all why Harjeet Singh should not be given the full benefit of his continuous officiation in a senior post.
He, therefore, directed the Union and Punjab Governments to redetermine the year of allotment of Harjeet Singh, taking December 17, 1960, as the date from which he continuously officiated in a senior post.
It was also directed that proper seniority should be assigned to him in accordance with the year of allotment so determined.
In the case of B. R. Kapur it was held that July 29, 1965, should be treated as the date of his continuous officiation in a senior post.
It was held that the Government of India and the Government of Punjab had all the time treated the post of Commandant, 466 25th Battalion as a cadre post and therefore, B. R. Kapur was entitled to have his service in the post of Commandant, 25th Battalion as officiation in a Senior post.
A direction was issued that the year of allotment and seniority should be re determined.
It was further directed that before redetermining the seniority of the two officers, the respondents to the Writ Petitions who were direct recruits, should be afforded an opportunity to make their representations.
Appeals under Clause 10 of the Letters Patent were filed by the affected direct recruits as also by B. R. Kapur.
Before the Division Bench the case took a new turn.
It was argued before the Division Bench on behalf of the direct recruits that neither B. R. Kapur nor Harjeet Singh would have ever started officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts, if the State Government had not created artificial vacancies by excessive utilisation of 'the deputation and central reserve ' quota in contravention of the Cadre Rules and the Cadre strength Regulations.
It was apparently sought to be argued before the Division Bench that the period of service attributable to over utilisation of 'deputation and central reserve ' quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service.
The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect.
The finding of the learned Single Judge that B. R. Kapur was entitled to have his service as Commandant 25th Battalion as officiation in a senior post was however affirmed.
Shri Jawahar Lal Gupta, learned counsel for Harjeet Singh argued that the service of Harjeet Singh in a senior cadre post was approved by the Government of India and once it was so approved the question whether there was over utilisation of deputation and central reserve quota was irrelevant for the purpose of determining the year of allotment.
The only relevant question was whether the appellant had continuously officiated in a senior post and, from what date.
There after the year of allotment was to be determined by the simple and mechanical application of rule 3(3) (b) of the Indian Police Service (Regulation of Seniority) Rules.
He further submitted that the circumstance that B. R. Kapur was senior to Harjeet Singh in the Select List was also irrelevant in considering the question of year of allotment.
It was only if both of them were given the same year of allotment that their inter se seniority in the Select List would become relevant.
Shri Mridul, learned counsel for B. R. Kapur, argued that 467 the single Judge of the High Court was wrong in excluding the period of service of B. R. Kapur as Director of Sports and as Additional Controller of Stores in determining the year of allotment.
He further contended that in any event the case of B. R. Kapur was an appropriate one for the exercise by the Central Government of its power to relax the rules and that this Court should give a direction to the Central Government to relax the rules so as to enable that part of Kapur 's service to be treated as service in a senior post.
Shri H. L. Sibal, learned counsel for one of the respondents argued that the number of cadre officers who could be deputed by the Central and State Governments for service elsewhere was limited and fixed by the Indian Police Service (Fixation of Cadre Strength) Regulations.
By deputing more cadre officers than authorised by those Regulations and appointing non cadre officers to artificial vacancies so created in cadre posts, the State Government had adopted a device to enable the officers of the State Police Service to continuously officiate in Senior posts longer than justified.
The Cadre Strength Regulations were thereby contravened and the Cadre Rules which provide for the temporary appointment of non cadre officers to cadre posts circumvented.
He submitted that officiating service rendered by a non cadre officer in a Senior post where the vacancy in the cadre post was the result of over utilisation of the deputation quota could not be taken into account under the Indian Police Service Regulation of Seniority Rules.
Shri R. K. Garg, who appeared for the remaining respondents urged that to permit promoted officers to take advantage of the deviation from the Cadre Rules and the Cadre Fixation of Strength Regulations for the purpose of gaining an advantage under the Seniority Rules would be a denial of the equal protection of the laws to the direct recruits who would be affected by such procedure.
He also urged that Rule 3 of the Seniority Rules if so interpreted as to take into account officiation against the rules must be held to contravene Articles 14 and 16 of the constitution.
In order to appreciate the rival contentions it is necessary to examine the relevant statutory provisions, rules and regulations.
Article 312(1) empowers Parliament to provide, by law, for the creation of All India Services common to the Union and the States.
Article 312(2) declares that the services known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under article 312(1).
468 section 2 of the All India Services Act, 1951 defines an "All India Service" as meaning the service known as the Indian Administrative Service or the service known as the Indian Police Service or any other service specified in section 2(A).
3 enables the Central Government after consultation with the Government of the States concerned to make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service.
The Indian Police Service (Cadre) Rules, 1954, made in exercise of the powers conferred by section 3 (1) of the All India Services Act, provide for the constitution of Cadres and certain connected matters.
A Cadre Officer is defined as a member of the Indian Police Service and a Cadre post is defined as any of the posts specified under item 1 of each cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955.
Rule 4(1) provides that the strength and composition of a cadre constituted for each State or group of States shall be as determined by Regulations made by the Central Government in consultation with the State Governments.
Rule 4(2) requires the Central Government to re examine the strength and composition of each such cadre at intervals of every three years in consultation with the State Government concerned and to make such alterations as it deems fit.
The first proviso to Rule 4(2) expressly stipulates that the power of the Central Government to alter the strength and composition of any cadre at any other time is not affected by rule 4(2).
The second proviso to r. 4(2) enables the State Government to add, for a period not exceeding one year, and with the approval of the Central Government for a further period not exceeding two years, to a State cadre one or more posts carrying duties or responsibilities of a like nature to a cadre post.
Rule 6 authorises the deputation of cadre officers for service under the Central Government or another State Government or under a Company, Association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or a State Government, a Municipal Corporation or a Local body or an international organisation etc.
Rule 8 prescribes "save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer".
Rule 9(1) provides for the temporary appointment of a non cadre officer to a cadre post if the State Government is satisfied that the vacancy is not likely to last for more than three months or if there is no suitable cadre officer available for filling the vacancy.
Where a non cadre officer is appointed to a cadre post for a period exceeding three months the State Government is required forthwith to report the fact to the Central Government together with their reasons for making the 469 appointment.
The Central Government may then direct the State Government to terminate the appointment of such person and to appoint a cadre officer to the post, in which case the State Government is bound to give effect to the direction.
Where a cadre post is likely to be filled by a non cadre officer for a period exceeding six months the Central Government is required to report the full facts to the Union Public Service Commission and may thereafter give appropriate directions to the State Government in the light of the advice given by the Union Public Service Commission.
Pursuant to the powers conferred by R. 4(1) of the Indian Police Service Cadre Rules, the Central Government has made the Indian Police Service (Fixation of Cadre Strength) Regulations 1955, determining the strength and composition of the cadres of each of the States.
In the schedule the total authorised cadre strength for the State of Punjab is mentioned as 70 consisting of 34 Senior Posts under the State Government, 14 Senior posts under the Central Government, 7 Deputation Reserve posts, 6 Leave Reserve posts and 7 Junior posts and 4 Training Reserve posts.
The thirty four senior posts under the State Government are also particularly specified.
Thirty six out of the total of forty eight Senior posts under the Central and State Governments, the deputation Reserve posts, the Leave Reserve posts, the Junior posts and the Training Reserve posts are all stated to be `direct recruitment posts ' while the remaining 12 Senior posts under the Central and State Governments are stated to be "promotion posts".
It is necessary to mention here that the thirty four posts specified as "Senior posts under the State Government" are shown as item 1 of the schedule and the fourteen Senior posts under the Central Government are shown as item 2 of the schedule.
The Indian Police Service (Recruitment) Rules, 1954 provide for recruitment to the Service (a) by a competitive service and (b) by promotion of substantive members of a State Police Service.
Rule 9(1) empowers the Central Government to recruit to the Indian Police Service persons by promotion from amongst the substantive members of the State Police Service in accordance with Regulations made by the Central Government.
The recruitment is required to be made on the recommendation of the State Government concerned and in consultation with the Union Public Service Commission.
Rule 9(2) provides that the total number of persons recruited by promotion shall not at any time exceed 25% of the number of posts shown against item No. 1 and 2 of the cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulation.
Items 1 and 2, we have already mentioned are Senior posts under the State and the Central Governments.
470 The Indian Police Service (Appointment by Promotion) Regulations 1955, made pursuant to Rule 9(1) of the Indian Police Service Recruitment Rules 1954 prescribes a very elaborate procedure for making appointments by promotion to the Indian Police Service.
A Selection Committee is required to be constituted for each State consisting of the Chairman or any other member of the Union Public Service Commission and other members specified in the schedule.
In the case of Punjab the other members are the Chief Secretary to the Government of Punjab, the Secretary to the Government of Punjab in the Home Department, the Inspector General of Police and a nominee of the Government of India not below the rank of Joint Secretary.
The Selection Committee is required to meet at intervals ordinarily not exceeding one year and to consider the cases of all eligible substantive members of the State Police Service.
The Committee is required to prepare a list of such eligible members of the State Police Service who are suitable for promotion to the Indian Police Service The selection for inclusion in the list is to be based on merit and suitability in all respects with due regard to seniority but the names of the officers included in the list are required to be arranged in order of seniority in the State Police Service.
The list prepared by the Selection Committee is then to be forwarded to the Union Public Service Commission by the State Government with all relevant records, the reasons recorded by the Committee for any proposed supersession of any member of the State Police Service and the observation of the State Government on the recommendation of the Committee.
Thereafter the Union Public Service Commission is to consider the list prepared by the Committee and to make any changes considered by them, to be necessary, after informing the State Government of the proposed changes.
The list as finally approved by the Commission is to form `the Select List of the members of the State Police Service. ' All appointments of members of the State Police Service from the Select List to posts borne on the State cadre are to be made in accordance with the provisions of R. 9 of the Cadre Rules.
In making the appointments the State Government is to follow the order in which the names of such officers appear in the Select List except where administrative exigencies require otherwise and the vacancy is not likely to last for more than three months.
Appointments of members to the Indian Police Service are to be made by the Central Government on the recommendation of the State Government in the order in which the names of the members of the State Police Service appear in the Select List for the time being in force.
We arrive finally at the Indian Police Service (Regulation of Seniority) Rules 1954.
Rules 3 provides that every officer shall be assigned 471 a year of allotment in accordance with the provisions of that rule.
Rule 3(3)(b) prescribes that the year of allotment of an officer who is appointed to the service by promotion in accordance with rule 9 of the Recruitment rules, shall be the year of allotment of the junior most among the officers recruited by competitive examination who officiated continuously in a Senior post from a date earlier than the date of commencement of such officiation by the officer appointed to the service by promotion.
`Senior post ' was originally defined as a post included and specified under item 1 of the cadre of each State in the Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulation and as including posts declared by the State Government as equivalent to such posts.
The definition was amended with effect from April 22, 1967 and the present definition does not include posts declared equivalent by the State Government to cadre posts.
Rule 4(1) provides that the seniority of officers inter se shall be determined in accordance with the provisions of the rules.
Rule 4(4) provides that the Seniority of officers who are assigned the same year of allotment shall be in the order of the dates on which they started officiating continuously in the Senior post, but in the case of Officers appointed to the service by promotion, the dates of officiation shall be the same as the dates taken into account for the purpose of assignment of year of allotment under rule 3(3).
Where the dates of commencement of continuous officiation in a Senior post of more than one Officer appointed to the service by promotion is the same their seniority inter se shall be in the order of their dates of appointment to the service and where the date of appointment is also the same it shall be in the order in which their names are arranged on the date of their appointment to the service in the Select List.
These are the Statutory provisions, Rules and Regulations with which we are concerned in the present appeals.
What are primarily in question are the year of allotment and the Seniority of the two officers, Harjeet Singh and B. R. Kapur.
So, therefore, our primary concern is with the Indian Police Service (Regulation of Seniority) Rules, 1954.
Rule 3(3) (b) as well as rule 4(4) throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority.
For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post is the only relevant factor while for the if the date of commencement of continuous officiation in a Senior 472 post of more than one officer is the same and, finally, the order in the Select List if the date of appointment is also the same, are the several relevant factors in that order.
Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment and is relevant in determining the seniority, only if the year of allotment of the Officers is the same and their date of appointment is also the same.
Since the order in the Select List is dependent on the seniority in the State Service, it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is relevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same.
It must, therefore, necessarily follow that an officer who is junior to another in the State Police Service but, who starts continuous officiation in a Senior post from a date earlier than the other, may frog leap and gain Seniority by the consequential assignment of an earlier year of allotment.
There is nothing in the Indian Police Service (Regulation of Seniority) Rules, which has the effect of depriving an officer the benefit of continuous officiation on the ground that some one senior to him in the State Police Service did not so continuously officiate.
Nor are we able to discover any other rule in the innumerable Rules and Regulations governing the recruitment, appointment and Regulation of Seniority of officers of the Indian Police Service which is designed to deprive an officer, the benefit of continuous officiation in a Senior post.
One of the submissions made to us by the respondents was that the Select List having been prepared on grounds of merit and ability, the order in which officers were ranked in the Select List should not be disturbed after they were actually promoted to the Indian Police Service.
This submission is without substance.
Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability.
Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of Officers are arranged in the order of that seniority.
We, are, therefore, satisfied that the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.
It is, however, true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulations, appointments to 473 cadre posts from among non cadre officers should be made according to the order in which the names of such officers appear in the Select List.
A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months.
Of course, the Regulation does not license uninhibited deviation to favour individual non cadre officers.
If that is done the deviation is liable to challenge.
But where there is no such allegation, there is no reason why a junior non cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non cadre officer senior to him in the Select List did not continuously officiate likewise.
In such a situation, it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non cadre officer to add his officiation in a non cadre post to his officiation in a cadre post, regard being had to the circumstances under which the officer had to work in a non cadre post while his junior in the Select List was made to fill the cadre post.
But, surely, it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual, continuous, officiating service rendered by him.
In the present case there is no allegation that B. R. Kapur was appointed to the non cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh.
Now, the question for consideration is whether non cadre officers are to be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against `Deputation Reserve ' in the schedule to the Cadre Fixation of Strength Regulation.
We are unable to discover any provision in the Seniority Rules, Recruitment Rules, Cadre Rules or the Cadre Regulations which would lead to such a consequence.
To begin with it has to be borne in mind that the Fixation of Cadre Strength Regulations are made in exercise of the powers conferred on the Central Government by Rule 4(1) of the Cadre Rules and are, therefore, subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute.
Rule 6 of the Cadre Rules provides for the deputation of Cadre Officers and Rule 9 of the same rules provides for the temporary appointment of non cadre officers to cadre posts.
In making appointments of non cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions.
It is not disputed that the conditions prescribed by Rule 9 of the Cadre Rules were fulfilled.
That the conditions were fulfilled is also apparent from the very impugned order.
If non cadre officers are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules, is there 474 any justification for denying the non cadre officer the benefit of officiation in the cadre post on the ground that more cadre officers than the number specified in the Fixation of Cadre Strength Regulations had been deputed for service elsewhere ? It is not disputed that the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules.
True, Rule 4(1) of the Cadre Rule enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State.
It is also true that a definite number of posts is specified against `Deputation Reserve ' in the schedule to the Fixation of Cadre Strength Regulations.
But if owing to the situational demands and exigencies of the administration the number is exceeded and the State Government is compelled to utilise the services of experienced non cadre officers to fill cadre posts in strict compliance with the Cadre Rules, we see no reason to hold that the service rendered by the non cadre officers in such posts should be ignored.
On the other hand we think that the Fixation of Cadre Strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule, the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations, when there has been strict compliance with Rule 9 of the Cadre Rules.
We think that fixation of Cadre strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship.
Excessive utilisation of `Deputation or Central Reserve ' is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the Service.
For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the `Deputation Reserve ' has already been exceeded.
The Regulations are not intended to and do not confer any right on any member of the Service, unlike some other Rules which do confer or create rights in the members of the Services.
Among other Rules, for instance, Rule 9(2) of the Recruitment Rules stipulates that the total number of persons recruited by promotion shall not at any time exceed 25% of the posts shown against item Nos. 1 and 2 of the cadre in the schedule to the Fixation of Cadre Strength Regulations.
Now, if at a point of time this limit is exceeded, direct recruits may have a just cause for complaint and it may perhaps be held that to the extent of the excess the appointments by promotion are invalid and confer no rights of seniority over direct recruits.
But, as we said, the Fixation of Strength Regulation confer no rights on members of the Service and a mere breach of the Regulation furnishes no cause of action to any member of the service 475 On the ground that his seniority is affected in some round about way.
We may add that there is no suggestion that Rule 9(2) of the Recruitment Rules was contravened.
It was brought to our notice that several Senior cadre officers had to be deputed to organise Battalions of the Punjab Armed Police which came to be formed after the Chinese aggression in 1962 and at the time of the Indo Pakistan War in 1965.
It was in the vacancies caused by their deputation that Senior officers of the State Police Services were appointed to cadre posts.
Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay.
It appears that, at that time, in Punjab, there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post.
The State Government, therefore, had no option except to appoint experienced and suitable non cadre officers to cadre posts.
It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of his career.
It was repeatedly suggested that the State Governments were generally in the habit of adopting stratagem of sending cadre officer on deputation in excess of the Deputation Reserve in order to enable Officers of the State Services to officiate in cadre posts so as to further enable them to get the benefit of such continuous officiation when finally appointed to an All India Service.
Whatever truth there may be in the suggestion it has to be remembered firstly that the appointment of non cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment.
The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months.
Next, it has also to be borne in mind that non cadre officers of proven merit only are appointed to cadre posts.
They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List.
We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels, of the merit of the officers of the State Police Service.
A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position.
A direct recruit who ordi 476 narily comes into the picture years after a State Officer 's name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer.
We are also unable to appreciate the submission of Shri R. K. Garg that every departure from a rule, which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution.
The proposition is widely stated, far fetched in relation to the facts of the instant case and not supported by N. K. Chauhan & Ors.
vs State of Gujarat(1) on which Shri Garg relied.
In Chauhan 's case the Court was considering the effect of the breach of a 'Quota ' rule fixing the proportion of 'direct recruits ' and 'promotees '.
In the present case, as already noticed by us, there is no allegation of breach of the 'quota ' rule embodied in Rule 9(2) of the Recruitment Rules.
The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any 'Quota ' rule.
The consequential submission of Shri Garg that rule 3(3)(b), if so interpreted as to take into account officiation in contravention of the rules, offends Articles 14 and 16 of the Constitution, therefore, loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations.
We also notice that the vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma vs Union of India.(2) In the light of our foregoing discussion we hold that the 'over utilisation ' of 'Deputation and Central Reserve ' does not affect the questions of assignment of the year of allotment and the seniority of the appellants.
The concurrent finding of the learned single judge and the Division Bench that Kapur 's service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us.
Shri Mridul argued that the records reveal that Kapur 's appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and, therefore, those posts must be treated as cadre posts.
In any event, he suggested that we should invite the Government of India to suitably 477 relax the rules so as to enable Kapur 's service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts.
We cannot of course hold Kapur 's service in non cadre posts as service in cadre posts.
Nor can we give the direction sought by Shri Mridul.
It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in the matter.
We have no advice to offer.
Both the Civil Appeals are allowed, the Judgment of the Division Bench is set aside and the judgment of the Single Judge is restored.
Writ Petition Nos.
520 524 have been filed by some of the direct recruits questioning the vires of rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules and Rule 3 of the All India Services (Conditions of Service Residuary Matter) Rules, 1960 which vests in the Government of India the power to relax.
We have upheld the validity of Rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules and the question of the vires of Rule 3 of the All India Service (Conditions of Service residuary matters) rules does not arise at present.
The Writ Petitions are also dismissed.
S.R. Appeals allowed and Petitions dismissed.
| IN-Abs | On selection by the Punjab Public Service Commission B. R. Kapur (appellant in CA 2413/78) and Harjeet Singh (Appellant in CA 2526/77) were directly recruited in 1951, as Deputy Superintendents of Police in the Punjab Police Service.
B. R. Kapur was senior to Harjeet Singh as Deputy Superintendent of Police.
In 1960, both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service, (Appointment by Promotion) Regulations, 1955.
On November 24, 1960, B. R. Kapur was appointed as Assistant Inspector General of Police which post was a cadre post.
In May 1961 he was appointed to a non cadre post as Director of Sports and Youth Programme and Deputy Secretary to Government, Sports Department.
He held this post upto November 18, 1962, and thereafter he was appointed as Additional Controller of Stores, Punjab which was also a non cadre post.
He continued to hold the post of Additional Controller of Stores till 1965, from July 19, 1965 he was Commandant, 40th Battalion PAP, J & K which was a cadre post.
He held the post till July 11, 1966 when he took over as Commandant of 25th Battalion PAP.
On the reorganisation of the State of Punjab, he was appointed as Assistant General of Police, State of Punjab from November 1, 1966.
Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3, 1969.
Shri Harjeet Singh was appointed to officiate as Superintendent of Police in December 1960.
The post was a cadre post.
He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3, 1969.
After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arose for the consideration of the Government of India.
Shri B. R. Kapur was allotted the year 1963 and placed below Sube Singh and above section R. Sharma (direct recruits) in the Indian Police Service, counting his continuous officiating service from 1 11 66 only, as service in a senior cadre post and not his service in the 460 non cadre post.
In the case of Harjeet Singh, though he admittedly officiated continuously in a senior cadre post from December 1960, he was also allotted to the year 1963 and placed below Sri Kapur on the ground that he ranked below Sri Kapur in the select list.
Kapur and Harjeet Singh filed writ petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963.
The Writ petitions were accepted.
The Court directed the Union and Punjab Governments to redetermine the year of allotment and seniority of Harjeet Singh and Kapur taking December 17.
1960 and July 29, 1965 respectively as the dates of their continuous officiation in a senior post.
A further direction was issued that before redetermining the seniority of the two officials, the respondents to the Writ Petitions who were direct recruits should be afforded an opportunity to make their representation.
Appeals under clause 10 of the Letters Patent were filed by the affected direct recruits as also by B. R. Kapur.
The direct recruits contended that neither B. R. Kapur nor Harjeet Singh would have ever started officiating in the senior post on the dates from which they officiated or claimed officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts, if the State Governments had not created artificial vacancies by excessive utilisation of the "deputation and central reserve" quota in contravention of the cadre Rules and the Cadre strength Regulations.
The arguments before the Division Bench therefore was that the period of service attributable to over utilisation of 'deputation and central reserve ' quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service.
The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect.
The finding of the learned Single Judge that B. R. Kapur was entitled to have his service as Commandant 25th battalion as officiation in a senior post was however affirmed.
Hence the appeals by special leave by Harjeet Singh and Kapur.
Allowing the appeals and dismissing the Petitions, the Court.
^ HELD: 1 Rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules, 1954 is valid.
[476E] A.P. Sharma vs Union of India, ; followed.
Rule 3(3)(b) as well as Rule 4(4) of the Indian Police Service (Regulation of Seniority Rules 1954 throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority.
For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post, then the date of appointment to the Service if the date of commencement of continuous officiation in a Senior post of more than one officer is the same and, finally, the order in the Select List if the date of appointment is also the same and, finally, the order in the Select List if the date of appointment is also the same are the several relevant factors in that order.
Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment 461 and is relevant in determining the seniority, only if the year of allotment of the officers is also the same, and their date of appointment is also the same.
Since the order in the Select List is dependent on the seniority in the State Service, it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is relevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same.
Therefore an officer who is junior to another in the State Police Service but, who starts continuous officiation in a Senior post from a date earlier than the other, may frog leap and gain seniority by the consequential assignment of an earlier year of allotment.
Neither the Indian Police Service (Regulation of Seniority) Rules nor any other rule in the innumerable Rules and Regulations governing the recruitment, appointment and Regulation of seniority of officers of the Indian Police Service is designed to deprive an officer, the benefit of continuous officiation in a senior post.
[471G H, 472A E] 3.
Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability.
Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of officers are arranged in the order of that seniority.
Therefore the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.
[472F H] 4.
It is true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulation & Appointments to cadre posts from among non cadre officers should be made according to the order in which the names of such officers appear in the Select List.
A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months.
Of course, the Regulation does not license uninhibited deviation to favour individual non cadre officers.
If that is done the deviation is liable to challenge.
But where there is no such allegation, there is no reason why a junior non cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non cadre officer senior to him in the Select List did not continuously officiate likewise.
In such a situation, it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non cadre officer to add his officiation in a non cadre post to his officiation in a cadre post, regard being had to the circumstances under which the officer had to work in a non cadre post while his junior in the Select List was made to fill the cadre post.
But, surely, it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual, continuous, officiating service rendered by him.
In the present case there is no allegation that B. R. Kapur was appointed to the non cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh.
[472 H, 473A D] 5.
Non cadre officers if they are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules should not be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against a 462 Deputation Reserve in the schedule to the Cadre Fixation of Strength Regulation.
[473E F] Fixation of Cadre Strength Regulations are made in exercise of the power conferred on the Central Government by Rule 4(1) of the Cadre Rules and are, therefore, subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute.
Rule 6 of the Cadre Rules provides for the deputation of Cadre officers and Rule 9 of the same rules provides for the temporary appointment of non cadre officers to cadre posts.
In making appointment of non cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions.
In the instant case.
that the conditions prescribed by rule 9 of the Cadre Rules were fulfilled is clear from the impugned order.
[473F H] 6.
Rule 4(1) of the Cadre Rules enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State.
A definite number of posts is also specified against "Deputation Reserve" in the schedule to the fixation of Cadre Strength Regulations.
But if owing to the situational demands and exigencies of the administration, the number is exceeded and the State Government is compelled to utilise the services of experienced non cadre officers to fill cadre posts in strict compliance with the Cadre Rules, the Service rendered by the non cadre officers in such posts should not be ignored.
In the instant case, the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules.
[474A C] 7.
Fixation of cadre strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule, the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations, when there has been strict compliance with Rule 9 of the Cadre Rules.
Fixation of Cadre Strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship.
Excessive utilisation of 'Deputation or Central Reserve ' is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the service.
For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the 'Deputation Reserve ' has already been exceeded.
The Regulations are not intended to and do not confer any right on any member of the Service, unlike some other Rules which do confer or create rights in the members of the Services.
A mere breach of the rule furnishes no cause of action on the ground that his seniority is affected in some round about way.
[474C G and 475A] 8.
Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to post in the Senior time scale of pay.
Since at that time in Punjab, there was no direct recruit in the junior time scale of pay who possessed experience of at least four years who could be thought of for appointment in the Senior post, the State Government had no option except to appoint experienced and suitable non cadre officers to cadre posts.
Further no cadre officer who had been so deputed suffered in any manner in the matter of his career.
[475B D] 463 Further, the appointment of non cadre officers to cadre posts is subject to the directions of the Central Government, who may terminate such appointment.
The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extent beyond six months.
Moreover non cadre officers of proven merit only are appointed to cadre posts.
They are appointed to cadre posts if they are already in the Select List and the appointments are made in accordance with the order in which they are placed in the Select List which is prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination at various levels, of the merit of the officers of the State Police Service.
A State officer whose name appears on the Select List may expect to be appointed to a cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position.
A direct recruit who ordinarily comes into the picture years after a State Officer 's name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer.
[475E H, 476A B] 9.
Every departure from a rule which departure gives certain advantages to one group of Civil servants as against another does not necessarily involve an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution.
The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any "Quota" rule.
There is no allegation of breach of "quota" rule embodied in Rule 9(2) of the Recruitment Rules either.
[476B E] N. K. Chauhan and Ors.
vs State of Gujarat, ; , distinguished.
"The over utilisation" of "Deputation and Central Reserve" does not affect the questions of assignment of the year of allotment and the seniority of the appellants.
[476F G]
|
ivil Appeal Nos.
804 810 of 1977.
Appeals by Special Leave from the Judgment and order dated 20 10 76 of the Allahabad High Court in Writ Petitions Nos.
1529, 1564 and 1568 to 1571/63.
AND WRIT PETITIONS Nos. 650, 651, 652 653, 48, 394, 395, 691, 670, 680, 681, 687 688/79, 412 415, 416 418/79.
Under Article 32 of the Constitution AND SPECIAL LEAVE PETITION (CIVIL) NOS.
5193, 5196 and 17 5517/79 From the Judgment and order dated 20 10 1976 of the Allahabad High Court in Civil Misc.
Writ Nos.
1523, 1544, 1528, 1541 and 1527/63.
R.K. Garg, P.C. Bhartari for the Appellant in C.A. 804/77.
G. L. Sanghi and P.C. Bhartari, for the Petitioner in W.P. No. 48/79 and in S.L.P. Nos.
5193 5196 and 5517/79.
P. C. Bhartari for the Appellant/Petitioners in C.A. 805 810/ 77 and W.P. 650, 651, 652, 653, 395, 691, 670, 680, 681, 687, 688/79 and other cases.
Shanti Bhushan P.C. Bhartari for the Petitioner in W.P. 394/79.
500 S.V. Gupte, Raj Narain Munshi and Sobhagmal Jain for RR.
7 in C.A. Nos.
804 810/77 and W.P. Nos.
650/79 and SLP (C) Nos.
5193 5196/79 and 5517/79.
Y.S. Chitaley, Raj Narain Munshi and Sobhagmal Jain for RR 7 in W.P. 48/79.
Raj Narain Munshi, Sobhagmal Jain and S.K. Jain for RR 7.
in W.P. 651, 652, 653, 394, 395, 691, 670, 680, 651, 687 688/79.
P.B. Sharma for RR 8 in W.P. 48/79.
O.P. Rana for the Intervener, State of U.P.
In all these appeals, writ petitions and special leave petitions the challenge is against the validity of the scheme framed by the State Transport Undertaking of U.P.
In giving special leave in Civil Appeals Nos. 804 to 810 of 1977 this Court restricted the special leave by stating "Special leave granted confined to the alleged conflict between section 68(c) of the and sections 7 and 16 of the U.P. Amendment Act of 1976, (Act 127/1976).
When the hearing in these matters started Mr. Garg, learned counsel for the appellants, submitted that there is no conflict between sec.
68C of the and sections 7 and 16 of the U.P. Amendment Act.
But his plea is that the amendment has not in any way affected or cured the defect in sec.
68C and there fore the defect in the scheme continues to render it invalid In terms of the restricted leave granted, we do not think it is strictly open to the learned counsel to raise the plea which he has taken before us.
But as several matters are involved and there is a conflict between two judgments of the Allahabad High Court we gave permission to the learned counsel to raise this question.
The point that is raised by Mr. Garg is that the introduction of sections 7 and 16 by the Amending Act 27 of 1976, the Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976 does not dispense with the requirements specified in sec.
68C as the two section relate only to approved schemes.
In order to appreciate learned counsel 's contention it is necessary to set out sec.
68C of the .
Section 68C reads as follows: 501 "Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area of route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to by published in the official Gazette and also in such other manner as the State Government may direct.
" Sec.
68C requires the State Transport Undertaking to prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed.
It is thus necessary that the scheme should give (1) particulars of the services proposed to be rendered; (2) the area or route proposed to be covered, (3) such other particulars thereto as may be prescribed.
The scheme prepared under sec.
68C did not specify the number of services to be provided.
The Allahabad High Court in Shashi Kant Rai & ors.
vs Regional Transport Authority, Varanasi Region & ors.
held that if the particulars regarding the adequacy etc.
Of the proposed transport services are not given in the draft scheme then it will not be possible for the objectors to file any effective objection to the draft scheme in this regard and it would be difficult for the Hearing Authority to give its decision whether the draft scheme will be able to provide road transport services which would fulfil the four purposes mentioned in sec.
The Court held that the draft scheme must give particulars indicating how the proposed transport services would be efficient, adequate, economical and properly coordinated.
The scheme mentioned "adequate number of State transport services, according to traffic requirements are to be provided on the route or the portion thereof mentioned in cl.
(2) above.
The learned single Judge and the Division Bench of the Allahabad High Court were of the view that the draft scheme prepared under sec.
68 C was defective as the minimum number of services and the vehicles which were proposed to be introduced on the road had not been mentioned.
In order to get over the effects of the decision the U.P. Legislature introduced the 502 Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976 (U.P. Act No. 27 of 1976).
Section 7 of the Act reads as follows: "Nothing contained in section 68C or section 68D of the principal Act shall be deemed to require or ever to have required a specification being made in an approved scheme of the number of services to be provided.
" Section 16 of the Act is the validating section and runs as follows: "Notwithstanding any judgment decree or order of any court, any scheme prepared or published under section 68C, or approved or modified under section 68D of the principal Act or purporting to have been prepared, published, approved or modified shall not be deemed to be or have been in valid on the ground of the number of the services to be provided being not specified therein." Mr. R. K Garg, the learned counsel for the appellants, submitted that sec.
7 is applicable only to approved schemes i.e. for a scheme which had been approved under sec.
68D(3) and that its object is to cure the defect in approved scheme under sec.
68 D where the number of services provided is not mentioned.
The learned counsel would reach the section that nothing contained in the principal Act shall be deemed to require or ever to have required a specification of the number of services to be provided in an approved scheme.
He would emphasise the words "approved scheme" and submit that the change if any is as regards the particulars required under an approved scheme under sec.
68 D and that this section would not relate, to the scheme under sec.
The marginal note to sec.
7 states "Specification of number of services not an essential requirement of Section 68C or Section 68D." The intention therefore is to make specification of number of services not an essential requirement under sections 68C and 68D.
The section therefore is intended to cover sec.
68 C also.
It is seen the intention is carried out by the section providing that "Nothing contained in Section 68C or Section 68D of the principal Act shall be deemed to require . " The operation of the section is thus intended to apply both to sec.
68C and 68 D.
The result would be that if one of the requirements of sec.
68 C is that it should specify the number of services to be provided it shall be deemed that requirement was never there.
The reference to the approved scheme is because sec.
68 C and section 68 D form, part of the same procedure of publication of a scheme and approval of the scheme.
That this is the object is put beyond all doubt by introduction of the validating 503 section, section 16, which provides that in any scheme prepared or published under sec.
68 C or approved or modified under sec.
68D of the principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein.
We are satisfied that sections 7 and 16 of the Act have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in a scheme prepared and published under sec.
68 C or approved or modified under sec. 68 D.
The plea of the learned counsel therefore fails.
In this, view we hold that the decision in Shashi Kant Rai and ors.
v Regional Transport Authority, Varanasi Region, and Ors.
(supra) is erroneously decided.
When the arguments of Mr. Garg on this point and the reply thereto were heard, Mr. Shanti Bhushan, the learned counsel for one of the appellants, submitted that he may be permitted to raise the question of validity of sec.
68 C. He submitted that if the amended sections 7 and 16 of the U.P. Act have the effect of modifying sec 68 C, sec.
68 C itself would not be valid.
According to the learned counsel the requirement of sec.
68 C is that before a scheme is prepared and published the State Transport Undertaking must be of the opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport services, it is necessary in the public interest that the road transport services should be run and operated by the State Transport Undertaking.
In order to satisfy the requirements the learned counsel submitted that the scheme should give (1) particulars of the nature of the services proposed to be rendered; (2) area or route proposed to be covered and such other particulars respecting thereto as may be prescribed.
The first two requirements with which we are concerned are under sec.
68 C. Relying on a decision of this Court in B. H. Aswathanarayan Singh & ors.
vs State of Mysore and Ors.
the learned counsel submitted that if the requirement as to specification of the number of services to be provided in the draft scheme is dispensed with the particulars of the nature of services proposed to be rendered as required in sec.
68 C would be lacking.
The learned counsel referred to page 93 of the case (supra) wherein the Court observed that "when sec.
68 C provides for giving particulars of the nature of the services proposed to be rendered the intention is that such details should be given as are necessary to enable the objectors to make their objections.
We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also 504 in the form of minimum and minimum number of vehicles and trips on each route.
" Strong reliance is placed on the requirement that the details or the nature of services should not only be in the form of precise number of vehicles and trips but also in the form of minimum and maximum number of vehicles and trips on each route.
But this statement is explained in the next two sentences where the Court stated: "Furnishing of minimum and maximum number of vehicles and trips for each route would also in our opinion, satisfy the requirement that particulars should be furnished of the services proposed to be rendered.
Further the indication of minimum and maximum number of vehicles and trips for each route would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered.
" We do not think that the appellants are right in submitting that when the word "particulars" is used in this part of the section, it can only be satisfied if the exact number of vehicles and trips for each route is specified and that there is no other way of satisfying the requirement implicit in the use of the word "particulars".
It is thus clear that the exact number of vehicles and trips for each route need not be given and all that sec.
7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services.
The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified.
We 15 are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved scheme.
The learned counsel Mr. Shanti Bhushan submitted that in any event as the maximum or minimum number of buses, vehicles and trips have not been mentioned, the scheme should be held to be inoperative.
This contention again is not factually substainable as the impugned scheme under sec.
68C which was notified in the U.P. Gazette on 4 12 1961 gave the required particulars.
Clause 3 of the scheme stated "Adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above.
The provision of Transport service otherwise than under the scheme is prohibited.
" Clause 2 provided that State Road Transport passenger services shall be provided on the inter State route Agra Dholpur of Agra Region.
Clause 6 provided that the Transport Vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats.
Clause 7 mentions the permits which have been cancelled.
A reading of the scheme would indicate that transport vehicles and services will be provided on the 505 routes taken over by country type vehicles with 30 to 45 seats capacity.
There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963.
When specifically asked whether such an objection was taken to the draft scheme the learned counsel for the appellants were unable to say that the objection was taken.
We feel it is futile for them to raise the plea after a lapse of about 15 years.
There is no substance in any of the contentions raised.
One cannot but express amazement at the tenacity of the operators in stalling any scheme for nationalisation of public transport.
The appeals, special leave petitions and writ petitions are dismissed with costs.
V.D.K. Appeals and petitions dismissed.
| IN-Abs | On the question whether sections 7 and 16 of the U.P. Motor Vehicles (Special Provisions) Act, 1976 (Act 127 of 1976) related only to "approved" Schemes under section 68D of the and, therefore, the approved scheme for inter state range Agra Dholpur of Agra region was inoperative, the Court, while dismissing the Writ Petitions and the connected special leave petitions.
^ HELD: (1) Sections 7 and 16 of U.P. Motor Vehicles (Special Pro visions) Act, 1976 have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in a scheme prepared and published under section 68D of the .
[503A B] The marginal note to section 7 states "specification of number of services not an essential requirement of section 68C or section 68D", makes the intention clear that the section is intended to cover section 68C also.
The intention is also carried out by the Section providing that "Nothing contained in section 68C or section 68D of the Principal Act shall be deemed to require. " The operation of section 7 is thus intended to apply both to sections 68C and 68D.
The result would be that if one of the requirements of section 68C is that it should specify the number of services to be provided, it shall be deemed that requirement was never there.
The reference to the approved scheme is because section 68C and section 68D form part of the same procedure of publication of a scheme and approval of the scheme.
That this is the object is put beyond all doubt by the introduction of the validation section, section 16, which provides that in any scheme prepared or published under section 68C or approved or modified under section 68D of the Principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein.
[502F H, 503A] Shashi Kant Rai & ors.
vs Regional Transport Authority, Varanasi Region and ors.
AIR 1978 All.
68 over ruled.
Failure to specify the member of services would not invalidate the draft scheme under section 68C or the approved scheme under section 68D of the .
It cannot be said that when the word "particulars" is used in this part of section 68C, it can only be satisfied if the exact number of vehicles and trips for each rank is specified, and, that 499 there is no other way of satisfying the requirement implicit in the use of the A word "particulars".
The exact number of vehicles and trips for each route need not be given and all that section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services.
[504C E] B.B. Aswathanarayan Singh & Ors.
vs State of Mysore & ors. , applied.
(3) In the instant case, the impugned scheme cannot be held to be inoperative for non mentioning of the maximum or minimum number of buses, vehicles and trips, since the scheme notified in U.P. Gazette on 4 12 1961 gave the required particulars.
A reading of the scheme would indicate that transport vehicles and services would be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity.
Moreover, this objection which was not taken before the scheme was approved in 1963 would not be allowed to be taken after a lapse of 15 years.
[504 G H, 505 A B]
|
Civil Appeal No. 621 of 1973.
From the Judgment and Order dated 13 3 1973 of the Allahabad High Court in Spl.
Appeal No. 9/73).
V. J. Francis for the Appellant.
O. P. Rana for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave arises out of a writ petition filed by a police officer aggrieved by the termination of his services.
The appellant was a temporary Sub Inspector of Police.
He was posted at Shahajahanpur in 1969.
The Superintendent of Police, 615 Shahjanpur commenced disciplinary proceedings against the appellant on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 inasmuch as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive.
The charge was denied by the appellant.
The Superintendent of Police recorded evidence.
But at this stage the Deputy Inspector General of Police Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence had been committed at Pithoragarh, situated in a different police range, and therefore the proceedings taken against the appellant were incompetent.
Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub Inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police service or who were involved in encouraging crime.
The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him.
On April 27, 1970, the Deputy Inspector General of Police made an order terminating the services of the appellant.
The order recites that the services of the appellant, "are no more required and that he will be considered to have ceased to be in service . ." The appellant filed a writ petition against the order terminating his services, and claimed that the order contravened Article 311(2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed in that provision.
It was also alleged that the order was passed mala fide.
The writ petition was dismissed by a learned Single Judge of the Allahabad High Court.
An appeal was dismissed by a Division Bench of the High Court on March 13, 1973.
In the appeal before us, it is urged for the appellant that the High Court was wrong in holding that the order terminating the appellant 's services was not an order imposing a punishment.
We are referred to the disciplinary proceedings instituted against the appellant in 1969 and it is submitted that although the order of termination does not refer to those proceedings and the charge on which they were commenced, the appellant 's services were terminated with a view to punish him for contracting a second marriage without prior permission of the Government.
We are satisfied that the contention is without substance.
It is now settled law that an order terminating the 616 services of a temporary Government servant and ex facie innocuous in that it does not cast my stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying with Article 311(2) of the Constitution.
The scope of the enquiry called for in such a case has been outlined by one of us in State of Maharashtra vs Veerappa R. Saboji and another.
But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order.
The application of the test is not always easy.
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services.
The function of the court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.
In the present appeal, the appellant was a temporary Government servant.
The question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March, 1970 for weeding out police officers who were unsuitable or unfit to be continued in service.
The Superintendent of Police prepared a list of Sub Inspectors functioning within his jurisdiction, and included the name of the appellant in that list.
The material which he considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service.
His general character and conduct led to that impression.
There is nothing to show that the impugned order was made by way of punishment.
The circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment.
As we have observed, that is a conclusion which must follow from the nature of the intent behind the order.
That intention can be discovered and proved, like any other 617 fact, from the evidence on the record.
In this case, it is not proved that the impugned order was intended by way of punishment.
Learned counsel for the appellant relies on State of Bihar & Ors.
vs Shiva Bhikshuk Mishra and State of Uttar Pradesh & Ors.
vs Sugher Singh.
Both were cases of permanent Government servants.
And as regards Regional Manager & Anr.
vs Pawan Kumar Dubey, to which also reference has been made, that was a case where on the facts the Court found that there were no administrative reasons for the impugned reversion.
The appeal fails and is dismissed, but in the circumstances there is no order as to costs.
section R. Appeal dismissed.
| IN-Abs | The appellant was a temporary sub inspector of Police.
While he was posted at Shahjahanpur the Superintendent of Police, Shahjahanpur commenced disciplinary proceedings against him on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 in as much as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive.
At the stage of evidence, the Deputy Inspector General of Police, Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh, situated in a different police range, and therefore, the proceedings taken against the appellant were incompetent.
Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police Service or who were involved encouraging crime.
The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him.
On April 27, 1970, the Dy.
Inspector General of Police made an order terminating the services of the appellant, reciting that the services of the appellant "are no more required and that he will be considered to have ceased to be in service. " The appellant filed a Writ Petition against the order terminating his services and claimed that the order contravened Article 311(2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed therein.
Allegations of malafide were also made.
The Writ Petition was dismissed.
An appeal to the Division Bench was also dismissed.
Hence the appeal by special leave.
Dismissing the appeal, the Court.
^ HELD: 1.
It is now settled law that an order terminating the services of a temporary Government servant and ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its 614 terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying with article 311(2) of the Constitution.
[615H, 616A B] 2.
The question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order.
The application of the test is not always easy.
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services.
The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.
[616B E] In the instant case: (a) the appellant was a temporary Government servant, and the question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out Police Officers who were unsuitable or unfit to be continued in service; (b) the material which the Superintendent of Police considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service his general character and conduct led to that impression and there was nothing to show that the impugned order was made by way of punishment; (c) the circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment, and (d) the impugned order was not intended by way of punishment.
[616E G] State of Maharashtra vs Veerappa R. Saboji and Anr. ; ; applied.
State of Bihar and Ors.
vs Shiva Bhikshuk Mishra, ; State of U.P. & Ors.
vs Sughar Singh ; and Regional Manager & Anr.
vs Pawan Kumar Dubey; ; ; distinguished.
|
N: Criminal Appeal Nos.
492, 493 and 494 of 1979.
Appeals under section 7 of the on transfer from the Delhi High Court at New Delhi from the Judgment and 515 Order dated 27 2 1979 of the Sessions Court at Delhi in Sessions Case No. 340/1978.
J. section Wasu, M. L. Nanda and M. N. Shroff for the Appellant in Crl.
A. 492/79.
K. L. Arora, K. G. Bhagat, Harish Gulati, Madan Bhatia and D. Goburdhan for the Appellant in Crl.
A. 493/79.
P. R. Mridul, Rajinder Singh, O. P. Sharma, R. C. Bhatia and Vivek Tankha for the Appellant in Crl.
A. 494/79.
K. L. Arora, K. G. Bhatat, Harish Gulati and D. Goburdhan for the Respondent No. 1 in Crl.
A. 492/79.
Rajinder Singh B. R. Handa and O. P. Sharma for the Respondent No. 2 in Crl.
A. 492/79.
Soli J. Sorabjee, Sol.
Ram Jethmalani, Grish Chandra, section Markandeya and section B. Jaisinghani for the Respondent in Crl.
493 494/79.
The following Judgments were delivered FAZAL ALI, J.
These two criminal appeals are directed against a judgment dated 27th February 1979 of the Sessions Judge, Delhi by which the accused (hereinafter referred to as the appellants) have been convicted under various sections of the Penal Code and awarded sentences of various terms of imprisonment not exceeding two years (which have been ordered to run concurrently) in addition to fines.
Both the appeals were originally filed before the Delhi High Court and were admitted by it on the 21st March 1979 when the sentences of the appellants were suspended and they were released on bail.
On the 17th May. 1979, the State also filed an appeal to the Delhi High Court for enhancement of the sentences.
The Special Courts Act (No. 22 of 1979 and hereinafter to be referred to as the 'Act ') was passed by Parliament and received the assent of the President on 16th May 1979.
On the 27th June 1979, the Central Government made a declaration under s.5 (1) of the Act as a consequence of which the appeals stood transferred to this Court.
The appellants have raised a number of preliminary objections relating to the constitutional validity of the Act and various provisions thereof on several grounds including the contravention of Articles 14 and 21 of the Constitution of India.
Alternatively, it was argued that some of the provisions of the Act did not at all apply to the appellants and the transfer of the appeals from the High Court to 516 this Court was not legal.
The State has appeared through Shri Soli J. Sorabjee who has countered all the objections raised by the appellants and has submitted that the Act is a valid piece of legislation and that there is no illegality in the transfer of the appeals from the High Court to this Court.
In view of the nature of the preliminary objections raised by the appellants we decided to dispose them of before entering into the merits of the appeals.
After hearing the parties at great length, by an order dated December 5, 1979 we overruled all the said objections and proceeded to hear the appeals on merits.
We now proceed to set out the reasons given for the order rejecting those objections.
In order to understand the arguments advanced by learned counsel for the parties it will be necessary to state certain undisputed facts.
The Act was preceded by a Bill (introduced by a Member of the Lok Sabha) which was adopted by the Government but in view of certain Constitutional objections the President made a reference to this Court for its opinion regarding the validity of the Bill and its provisions.
The matter was heard by a Bench of seven Judges and in its report dated December 1, 1978, this Court upheld the validity of the Bill generally by a majority of six to one.
Certain clauses of the Bill, however, were held to be violative of article 21 of the Constitution.
This Court further held that Parliament had legislative competence to create Special Courts and to provide for appeals against judgments and orders of such Courts to the Supreme Court.
This Court also upheld the Classification provided in clause 4(1) of the Bill which conferred power on the Central Government to make a declaration in respect of an offence alleged to have been committed during the operation of the Proclamation of Emergency dated 25th June 1975 by a person who held high public or political office in India.
To the extent that the clause brought within the purview of the Act persons who had committed offences between February 27, 1975 and June 25, 1975 it was, however, held to be invalid.
Similarly, the provisions of clause 7 of the Bill laying down that a retired Judge of a High Court could be appointed as a Judge of the Special Court and that this could be done by the Central Government in consultation with but without the concurrence of the Chief Justice of India were held to be bad.
Furthermore, the Court observed that the absence of a provision for the transfer of a case from one Special Court to another affected the fairness of the trial and, therefore, was violative of article 21 of the Constitution.
Barring these infirmities, the constitutional validity of the Bill was upheld by this Court.
It may be mentioned here that during the course of arguments learned counsel for the Union gave an express undertaking that the defects 517 pointed out in the Bill would be suitably removed so as to bring the Bill in accord with the opinion expressed by the Court.
Consequently, a fresh Bill was prepared and was introduced in the Lok Sabha on the 21st February 1979.
This Bill incorporated the suggestions of this Court, deleted reference to the period prior to the 25th June 1975 in the preamble, made a provision for transfer of a case from one Special Judge to another by the Supreme Court and provided that a Special Court would consist of a sitting Judge of a High Court nominated by the Central Government with the concurrence of the Chief Justice of India.
After some debate the Bill was passed by the Lok Sabha on the 9th March 1979.
It was then sent to the Rajya Sabha where its various provisions were fully debated and certain important suggestions were made by the Members of the Rajya Sabha as a result of which the Bill was returned by the Rajya Sabha with certain amendments on 21st March 1979.
Thereafter the Government accepted the amendments suggested by the Rajya Sabha and incorporated the same in the Bill which was then passed and ultimately received the assent of the President on 16th May, 1979.
Some of the substantial changes which have been incorporated in the Act may be summarised thus: The Act is now a permanent Act and does not deal only with offences committed during the period of Emergency.
Secondly, in the preamble an additional clause has been added to indicate the nature of the offences committed by persons holding high public or political office.
Thirdly, it has been provided that a Special Court would consist of a sitting Judge of a High Court nominated by the Chief Justice of the High Court concerned with the concurrence of the Chief Justice of India.
Thus, the Government has absolutely no hand either in the appointment of or any control over the Special Judge.
This provision appears to ensure complete independence of the Special Judge who is to be appointed to decide cases of highly placed public or political officers, so that they may have complete confidence in the Judge who tries their case.
Another special feature of the Act is that the preamble and its various clauses are not merely intended to spell out the object of the Act but contain important guidelines and essential safeguards and by virtue of section 5(1) of the Act the clauses of the preamble become a part of the Act itself.
As the Act has thus assumed a new complexion, it is necessary to analyse briefly its scheme before we deal with the contentions raised by learned counsel for the parties.
The heading of the Act 518 shows that its main object is to provide for the speedy trial of a certain class of offences (emphasis ours).
There are as many as nine clauses of the preamble which run thus: "AN ACT to provide for the speedy trial of a certain class of offences.
(1) WHEREAS Commissions of Inquiry appointed under the have rendered reports disclosing the existence of prima facie evidence of offences committed by persons who held high public or political offices in the country and others connected with the commission of such offences during the operation of the proclamation of Emergency dated the 25th June, 1975, issued under clause (1) of article 352 of the Constitution; (2) AND WHEREAS investigations conducted by the Government through its agencies have also disclosed similar offences committed during the period aforesaid; (3) AND WHEREAS the offences referred to in the recitals aforesaid were committed during the operation of the said Proclamation of Emergency, during which a grave emergency was clamped on the whole country, civil liberties were curtailed to a great extent, important fundamental rights of the people were suspended, strict censorship was imposed on the press, judicial powers were severely crippled and the parliamentary democratic system was emasculated; (4) AND WHEREAS all powers being a trust, and holders of high public or political offices are accountable for the exercise of their powers in all cases where Commissions of Inquiry appointed under the or investigations conducted by Government through its agencies disclose offences committed by such holders; (5) AND WHEREAS it is the constitutional, legal and moral obligation of the State to prosecute persons involved in the said offences; (6) AND WHEREAS the ordinary criminal courts due to congestion of work and other reasons cannot reasonably be expected to bring those prosecutions to a speedy termination; 519 (7) AND WHEREAS it is imperative for the efficient functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the commission of offences referred to in the recitals aforesaid should be judicially determined with the utmost dispatch; (8) AND WHEREAS it is necessary for the said purpose to establish additional courts presided over by sitting Judges of High Courts; (9) AND WHEREAS it is expedient to make some procedural changes whereby avoidable delay in the final determination of the innocence or guilt of the persons to be tried is eliminated without interfering with the right to a fair trial." (Numbering of the clauses by us to facilitate discussion) So far as clause (1) is concerned it refers to Commissions of Inquiry and the reports given by them disclosing the existence of prima facie evidence of offences committed by persons holding high public or political offices in the country and others connected with the commission of such offences during the operation of the Proclamation of Emergency dated June 25, 1975.
Clauses (2) and (3) give the history of the special features of the Emergency and the result of the investigation conducted by the Government regarding offences committed during the Emergency.
Clause (4) makes the Act a permanent one.
According to this clause, persons holding high public or political offices are actually trustees in regard to the powers vested in them and offences committed by them in breach of the trust or confidence reposed in them would also fall within the ambit of the Act, if either by the Commissions of Inquiry or investigations conducted by the Government such offences are disclosed.
Clause (5) makes it clear that it is the constitutional, legal and moral obligation of the State to prosecute persons involved in the offences mentioned in the foregoing clauses.
Clauses (6) and (7) deal with the main object of the Act which is to bring the prosecution of the offenders falling within the ambit of the Act to a speedy termination and to bring about a judicial determination of the offences said to have been committed by them with the utmost dispatch.
Clause (3) provides for the establishment of additional courts presided over by sitting Judges of High Courts.
Clause (9) refers to certain procedural changes brought about by the Act in the provisions of the Code of Criminal Procedure and intended to avoid delay in the final determination of the innocence or guilt of the persons to be tried.
To sum 520 up from the object of the various clauses of the preamble it is manifest that particular type of persons, namely, those who are holding high public or political offices by way of a trust have been put in a separate class along with those who have committed offences during the Emergency and who also bear the same characteristics as those indicated in clause (4).
Section 2 of the Act defines "Code", "declaration" and "Special Court" and the residuary clause (d) thereof says that words and expressions not defined in the Act would have the same meaning as in the Code of Criminal Procedure.
Section 3(1) gives power to the Central Government to establish an adequate number of Special Courts by notification in the Official Gazette.
Section 3(1) enacts that a Special Court shall consist of a sitting Judge of a High Court nominated by the Chief Justice thereof with the concurrence of the Chief Justice of India.
Section 4 empowers the Special Court to take cognizance and try such cases as are instituted before it or transferred to it in accordance with the manner provided by the Act.
Section 5(1) is the pivotal provision which lays down the conditions under which the Central Government is empowered to make a declaration which is the starting point of the prosecution of the offenders falling within the ambit of the Act.
It may be noticed that s.5(1) clearly states that the guidelines contained in the preamble are to be followed by the Central Government in determining whether an offence is to be dealt with under the Act.
Section 5(2) provides that a declaration made by the Central Government shall not be called in question in any court.
Section 6 provides that on a declaration made under section 5(1) in respect of any offence, any prosecution in respect of such offence shall be instituted only in a special Court designated by the Central Government and that where a prosecution is pending in any other court, the same shall stand transferred to the special Court.
This would be in derogation of anything contained in the code of Criminal Procedure.
Section 7 deals with the automatic transfer to the Supreme Court of appeals or revisions pending in any court of appeal or revision at the date of the declaration.
Section 8 embodies the well known provisions of the Code of Criminal Procedure relating to a joint trial of a number of accused persons who are charged with the offence of abetment or conspiracy.
Section 9(1) provides that the Special Court would follow the procedure prescribed by the Code for the trial of warrant cases before a Magistrate, that is to say it makes applicable the provisions of sections 238 to 243 and 248 of the Code to trials by a Special Court.
Sub section (3) of s.9 lays down that the provisions of the Code of Criminal Procedure shall apply, in so far as they are not inconsistent with those of the Act, no proceedings before a Special Court which shall be deemed to be a 521 Court of Session and would have all the powers thereof, and that a person conducting a prosecution before a special Court shall be deemed to be a public prosecutor.
Sub section (4) of section 9 empowers a Special Court to pass upon any person convicted by it any sentence authorised by law for the punishment of the offence of which such person is convicted.
Section 10(1) contains a provision for the transfer by the Supreme Court of a case from one Special Court to another where such an order is expedient in the ends of justice.
In fact, in the opinion given by this Court on the Presidential Reference this aspect of the matter was particularly highlighted.
Sub section (2) of section 10, however, lays down the norms under which an application for transfer could be made.
Sub section (3) of s.10 empowers the Supreme Court to grant compensation to any person who has opposed the application for the transfer of a case if the Court finds that such an application was frivolous or vexatious.
Section 11(1) prescribes the forum of an appeal to the Supreme Court against a judgment, order or sentence passed by a Special Court but excludes interlocutory order, from its ambit.
It may be noted that interlocutory orders have been excluded from the purview of section 11(1) so as to eliminate unnecessary delays in the trial of a case by a Special Court.
Even the code of Criminal Procedure has barred any revision against an interlocutory order by virtue of the provisions of section 397(2) of the code of Criminal Procedure, 1973.
Sub section (2) of section 11 provides that no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court except as provided for under section 11(1).
Sub section (3) provides the period of limitation for filing an appeal before the Supreme Court and the proviso thereto confers power on the Supreme Court to condone any delay if sufficient cause is shown, it may be noticed here that under section 11 an appeal to the Supreme Court from an order of the Special Judge lies as a matter of right.
Section 12 empowers the Supreme Court to frame rules for carrying out the purposes of the Act.
Section 13 provides that every notification made under sub section (1) of section 3 and every declaration made under sub section (1) of section 5 shall be laid, as soon as may be after it is made, before each House of Parliament.
Thus, by and large, the Act contains almost the same provisions as were contained in the Bill which was sent to this Court for its opinion by the President.
Clause (1) of the Bill is now s.1 (1) of the Act.
Clause (2) is now s.3 of the Act.
Clause (3) of the Bill is now s.4 of the Act.
Clause (4) of the Bill is now section 5 of the Act.
Clause (5) of the Bill is now s.6 of the Act.
Clause 6 of the Bill is now s.7 of the Act.
Clause (7) of the Bill is now s.3(2) of the Act, with an explanation added to it.
Clause 8 of the Bill is now 522 s.8 of the Act.
Clause (9) of the Bill is now s.9(1) of the Act with sub sections (2)(3) and (4) added to it.
Clause (10) of the Bill is now s.11(1) of the Act.
Thus, in so far as the arguments advanced before this Court in the Reference case are concerned, they are concluded by the decision given thereon and we do not propose to go behind the opinion given by this Court in that case or the reasons thereof with which we are in respectful agreement.
Learned counsel for the appellants having realised the force of this position, confined their arguments to certain points which either did not arise at the Reference stage or were not argued before the Court and on which no decision was given, and in fact, relied on some of the findings given and the propositions of law adumbrated by this Court in the Reference case.
The main ground of attack regarding the constitutional validity of the Act is based on Articles 14 and 21 of the Constitution.
Before dealing with the arguments we might mention certain important principles laid down by this Court in the Reference case.
In a diverse society and a large democracy such as ours where the expanding needs of the nation change with the temper of the times, it is extremely difficult for any legislature to make laws applicable to all persons alike.
Some amount of classification is, therefore, necessary to administer various spheres of the activities of the State.
It is well settled that in applying article 14 mathematical precision or nicety or perfect equanimity are not required.
Similarity rather than identify of treatment is enough.
The courts should not make a doctrinaire approach in construing article 14 so as to destroy or frustrate any beneficial legislation.
What article 14 prohibits is hostile discrimination and not reasonable classification for the purpose of legislation.
Furthermore, the Legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, article 14 would not be attracted.
That is why this Court has laid down that presumption is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality.
It has also been held that in order to sustain the presumption of constitutionality, the Court is entitled to take into consideration matters of common knowledge, common report, the history of the times and all other facts which may be existing at the time of the legislation.
Similarly, it cannot be presumed that the administration of a particular law would be done with an 523 "evil eye and an unequal hand".
Finally, any person invoking article 14 of the Constitution must show that there has been discrimination against a person who is similarly situate or equally circumstanced.
In the case of State of U.P. vs Deoman Upadhyaya, Subba Rao, J., observed as follows: "No discrimination can be made either in the privileges conferred or in the liabilities imposed.
But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them.
In a society of unequal basic structure, it is well nigh impossible to make laws suitable in their application to all the persons alike.
So, reasonable classification is not only permitted but is necessary if society should progress." With this brief introduction, we now proceed to deal with the arguments of learned counsel for the appellants.
In the first place, Mr. Bhatia, appearing for appellant Sanjay Gandhi submitted that even having regard to the principles laid down by this Court in the Reference case, the Act fails to pass the test laid down for a valid classification under article 14.
Therefore, we might mention here that the classical tests laid down for the application of article 14 are the following: (1) The classification must be founded on an intelligible differentia which distinguishes persons who are placed in a group from others who are left out of the group.
(2) Such differentiation must have a rational relation to the object sought to be achieved by the Act.
(3) There must be a nexus between the differentiation which is the basis of the classification and the object of the Act.
In applying the aforesaid tests, Mr. Bhatia contended that the decision given in the Reference Case upheld the Bill and rejected the challenge that the Bill violated article 14 mainly on the ground that the Bill sought to put a certain class of persons, namely, persons holding high public or political offices who had committed offences only during the period of Emergency.
In other words, he argued that the constitutionality of the Bill was upheld on the ground that it was legislation confined to selected offences committed by a particular class of persons during the Emergency period.
It was contended that the impugned Act transgressed the limits imposed by the judgment in the Reference case by bringing within its fold offences committed prior 524 and subsequent to the Emergency and thus was in direct conflict with the opinion of this Court rendered in the Reference case.
In amplification of this argument it was contended that this Court struck down that part of the Bill which related to the period between February and June 1975 on the ground that persons having committed offences during that period could not be clubbed with those who had committed offences during the period of Emergency.
In other words, the argument was that the Act, by clubbing together persons accused of offences committed during the Emergency with those alleged to be guilty of crimes pertaining to periods before and after the Emergency (i.e., by dealing with offences committed at any point of time whatsoever), has violated the guarantee under article 14 and the classification made by the Act is n direct contravention of the opinion given by this Court in the Reference case.
In support of his contention Mr. Bhatia relied on the following observations of this Court in the Reference case: "The classification which section 4(1) thus makes is both of offences and offenders, the former in relation to the period mentioned in the preamble, that is to say, from February 27, 1975 until the expiry of the proclamation of emergency dated June 25, 1975 and in relation to the objective mentioned in the sixth paragraph of the preamble that it is imperative for the functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the commission of such offences should be judicially determined with the utmost dispatch, and the latter in relation to their status, that is to say, in relation to the high public or political office held by them in India.
It is only if both of these factors co exist that the prosecution in respect of the offences committed by the particular offenders can be instituted in the Special Court. . .
We are not concerned with the truth or otherwise of the allegations, the narrow question before us being whether, in the first instance, the classification is based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out.
The answer to that question can be one and one only, namely, that offences alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart.
The cover of emergency, so it is alleged, provided a unique opportunity to the holders 525 of such offices to subvert the rule of law and perpetrate political crimes on the society.
Others left out of that group had neither the means nor the opportunity to do so, since they lacked the authority which comes from official position.
Thus, persons who are singled out by the Bill for trial before Special Courts possess common characteristics and those who fall outside that group do not possess them. .
The suppression of people 's liberties facilitates easy commission of crimes.
Public criticism is a potent deterrent to misbehaviour and when that is suppressed, there is no fear of detection.
Secondly, crimes which are alleged to have been committed during extraordinary periods like the period of emergency are oblique in their design and selective in their object .
But those crimes are not woven out of the warp and woof of political motivations.
Equal laws have to be applied to all in the same situation and legislature is free to recognise the degree of harm or evil." (Emphasis ours) Special stress was laid on the observations of this Court that the offences alleged to have been committed during the Emergency by persons holding high public or political offices were a class apart because such offences were committed under the cover of Emergency which provided a unique opportunity to the holders of the said offices to subvert the rule of law.
It was urged that this cannot be said of the period either before or after the emergency when no such cover or opportunity was available to the offenders concerned to misuse or abuse their powers and commit offences.
We find this argument to be without any substance.
To begin with, it cannot be gainsaid that this Court while dealing with the Reference case was not at all concerned with the provisions of the Act which is of much wider application than the Bill considered by the Court in the Reference.
It is no doubt true that the Bill contained provisions for punishing only those offenders who were accused of offences committed during a particular period namely the period of Emergency.
It is also true that the period of Emergency was an extraordinary one in the history of our country and its features have been spelt out in the preamble of the Bill as also in the judgment given by this Court in the aforesaid case.
But that by itself does not debar Parliament from passing a permanent Act to deal with a specified class of persons who occupy high public or political offices (which are offices of trust) and misuse or abuse them.
It cannot be doubted that for the establishment and continuance of a Parliamentary democracy and to secure efficiency and purity of administration it is necessary that when such persons 526 commit serious abuse of power and are guilty of a breach of the trust reposed in them, they would form a special class of offenders.
The simple answer to the argument of Mr. Bhatia is that this Court was not at all concerned with the broader aspect of the matter as envisaged by the Act at the time when the Bill was being considered.
That this is so, is clear from the observations made by Chandrachud, C.J., and Krishna Iyer, J.
The former observed: "Parliamentary democracy will see its halycon days in India when law will provide for a speedy trial of all offenders who misuse the public offices held by them.
Purity in public is a desired goal at all times and in all situations, emergency or no emergency.
But, we cannot sit as a super legislature and strike down the instant classification on the ground of under inclusion on the score that those others are left untouched, so long as there is no violation of constitutional restraints." (Emphasis ours) The observation that purity in public life is a desired goal at all times is a sufficient justification for the classification made by the Act which widens its scope to include offenders of a particular type to be punished for offences committed at any time, whether before, during or after the Emergency.
Similar observations were made by Krishna Iyer J. in his concurring Judgment: The pathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist. . .
And so, to track down and give short shrift to . . . x x x x Where the proposed law excludes the pre and post emergency crime doers in the higher brackets and picks out only 'emergency ' offenders, its benign purpose perhaps be comes a crypto cover up of like criminals before and after.
An 'ephemeral ' measure to meet a perennial menace is neither a logical step nor national fulfillment.
The classification, if I may anticipate my conclusion, is on the brink of constitutional break down at that point and becomes almost vulnerable to the attack of article 14.
x x x 527 The crucial test is 'All power is a trust ', its holders are 'accountable for its exercise ', for 'from the people and for the people, all springs, and all must exist '.
By this high and only standard the Bill must fail morally if it exempts non Emergency criminals about whom prior Commission Reports, now asleep in official pigeon holes, bear witness and future Commission Reports (who knows ?) may, in time, testify. . .
Nothing about Emergency period is adverted to there as a distinguishing mark.
If at all, the clear clue is that all abuse of public authority by exalted public men, whatever the time of Commission, shall be punished without the tedious delay which ordinarily defeats justice in the case of top echelons whose crimes affect the credentials of democratic regimes.
Assuming civil liberty was a casualty during the emergency, as it was, how did it obstruct trials of super political criminals? if faith in democratic institutions is the victim in case there is undue delay in punishing high public and political offenders, that holds good, regardless Emergency. . .The question, then, is whether there is constitutional rationale for keeping out of the reach of speedy justice non emergency criminals in high public or Political Offices.
Such a Bill, were it a permanent addition to the corpus juris and available as a jurisdiction for the public to compel government, if a prima facie case were made out even against a minister in office, to launch a prosecution before a sitting High Court Judge, would be a whole some corrective to the spreading evil of corruption in power pyramids." (Emphasis ours) It would thus appear from the observations quoted above that the majority judgment never meant to indicate that the passing of an Act covering all persons holding high public or political offices without reference to any period during which they are alleged to have committee the offences sought to be made the subject matter of their indictment, would be beyond the legislative competence of Parliament.
In fact, such persons would undoubtedly form a special class of offenders which would justify the legislative measure singling them out for an expeditious trial.
To hold otherwise would be to say that persons bearing the aforesaid attributes would be immune from prosecution under any Special Act.
Reading the opinion rendered in the 528 Reference case carefully we are unable to agree with Mr. Bhatia that this Court held that only Emergency offenders could be punished under a special Act and that any Act seeking to punish offenders of a special type unrelated to the Emergency would be hit by article 14.
It is true that some of the observations made by the learned Chief Justice, if read out of context, may apparently lend some support to the arguments of Mr. Bhatia but taken as a whole (as they must be) they clearly indicate that the passing of a permanent legislation classifying the type of offenders mentioned in the Act, namely, persons holding high public or political offices would be valid and, in fact, would be an ideal achievement.
We may mention here that the various observations made by Chandrachud, C.J., and Krishna Iyer, J. in the Reference case were highlighted during the debates which followed the introduction of the bill in the Lok Sabha and the Rajya Sabha after the opinion of this Court was given.
The Bill was returned to the Lok Sabha on March 21, 1979 with suggestions for its amendment so as to make it embrace offences without reference to a particular period, namely, the period of Emergency.
The Lok Sabha accepted the suggestions and passed the Bill in the form of the Act which received the assent of the President on the 16th May 1979.
Thus, the Act incorporates not only the above extracted observations made by Chandrachud, C.J., and Krishna Iyer, J. but also the views expressed by the Hon 'ble Members of the two Houses of Parliament.
In view of the factors mentioned above, we are fully satisfied that the Act does not suffer from the infirmities pointed out by Mr. Bhatia and the circumstance that it applies to offences committed at any time by a particular set of persons possessing special characteristics does not render it unconstitutional, for, when it puts into a class a particular set of persons having special characteristics which distinguish them from others who are left out of that class and who are to be tried under the ordinary law, the classification is eminently reasonable.
It may also be stated here that the classification made has a reasonable nexus with the object sought to be achieved, namely, quick despatch and speedy trials.
In this connection, some observations of Chandrachud, C.J., in the Reference case may be adverted to: "If prosecutions which the Bill envisages are allowed to have their normal, leisurely span of anything between 5 to 10 years, no fruitful purpose will be served by launching them.
Speedy termination of prosecutions under the Bill is the heart and soul of the Bill. . 529 Thus, both the tests are fulfilled in the instant case namely, that (1) the classification is founded on an intelligible differentia which distinguishes those which are grouped together from others who are left out and (2) the said differentia has a rational relation with the object sought to be achieved by the Bill, namely, speedy termination of prosecutions initiated in pursuance of the declaration made under clause 4(1) of the Bill.
" The same, we hold, is true of the Act.
It was then submitted by Mr. Bhatia that even if the classification was valid, as the procedure prescribed by the Act is extremely harsh and prejudicial to the accused, Articles 14 and 21 are clearly violated.
This aspect of the matter also has been expressly dealt with by Chandrachud, C.J., in the Reference case where he has pointed out that once the classification is held to be valid even if the procedure is harsher or disadvantageous that will not attract article 14.
In this connection, he observed: If the classification is valid and its basis bears a reasonable relationship with the object of the Bill, no grievance can be entertained under article 14 that the procedure prescribed by the Bill for the trial of offences which fall within its terms is harsher or more onerous as compared with the procedure which governs ordinary trials.
Classification necessarily entails the subjection of those who fall within it to a different set of rules and procedure, which may conceivably be more disadvantageous than the procedure which generally applies to ordinary trials.
But once a classification is upheld by the application of the dual test, subjection to harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of article 14, unequals cannot complain of unequal treatment.
" We shall, however, deal with the question whether or not the procedure is disadvantageous when we examine the argument of the learned counsel regarding sections 5, 6, 7 and 11 of the Act.
Thus, to sum up, the position so far as this part of the argument is concerned is as follows: (1) Separate grouping of holders of high offices for purposes of expeditious criminal action to be taken by superior courts is a reasonable and valid classification because it enhances confidence on the rule of law, 530 strengthens the democratic system and ensures purity of public life and political conduct.
(2) The Bill was challenged before the Supreme Court on the touchstone of article 14 on several grounds.
In the first place, it was argued that no rational basis for separately classifying Emergency offenders existed.
The second ground of challenge was that assuming that there was a valid classification, the same was bad because it suffered from the vice of under inclusion inasmuch as holders of high public or political offices were left out.
This Court, however, repelled the argument of rational basis on the ground that the Emergency period, because of its special characteristics, afforded adequate basis for separate classification of Emergency offences.
The Court was not at all at that time concerned expressly with the question as to whether classification of high public or political dignitaries without reference to any period during which they were alleged to have committed offences would be violative of article 14 of the Constitution.
On the other hand, this Court made clear observations that an Act providing for such a classification would be not only valid but also highly welcome.
It is true that the provision regarding a particular period before the Emergency was then struck down but that was so because the Bill was confined to offences committed only during the period of Emergency and the inclusion of that period meant bad classification for the reason that the period last mentioned could not be distinguished from other pre or post Emergency periods on any reasonable basis.
This view of the Court could not be interpreted as laying down a law of universal application that no Special Act on a permanent basis classifying offenders possessing particular characteristics or attributes and providing for their prosecution under a special procedure would be invalid or violative of article 14.
Thus, we do not think that the opinion of the Supreme Court in any way amounted to disapproval or condemnation of a permanent law in future bringing within its scope all holders of high public or political office.
It was then argued by Mr. Bhatia that assuming the classification of persons holding high public or political offices to be justified, it suff 531 ers from a serions infirmity in that neither the term 'high public or political office ' has been defined nor have the offences been delineated or defined so as to make the prosecution of such offenders a practical reality.
Dealing with this argument, the learned Solicitor General pointed out that it was specifically raised when the Court was hearing the Reference and written submissions were filed by the parties but that, unfortunately, the opinion did not give any finding on it and urged that even in absence of any finding, the argument must be deemed to have been rejected.
We find sufficient force in what the learned Solicitor General says but as we are hearing the appeals of persons who have been convicted and sentenced to various terms of imprisonment so that their liberty is involved, we feel that we should go into Mr. Bhatia 's argument.
As regards the definition of 'high public or political offices ' the expression is of well known significance and bears a clear connotation which admits of no vagueness or ambiguity.
Even during the debate in Parliament, it was not suggested that the expression suffered from any vagueness.
Apart from that even in the Reference case, Krishna Iyer, J., referred to holders of such offices thus: "heavy weight criminaloids who often mislead the people by public moral weight lifting and multipoint manifestoes. . . such super offenders in top positions. .
No erudite pedantry can stand in the way of pragmatic grouping of high placed office holders separately, for purposes of high speed criminal action invested with early conclusiveness and inquired into by high level courts." (Emphasis ours) It is manifest from the observations of Krishna Iyer, J. that persons holding high public or political offices mean persons holding top positions wielding large powers.
In American Jurisprudence 2d (Vol. , 627 & 637) the author describes persons holding public or political offices thus: "Public offices are cheated for the purpose of effecting the end for which government has been instituted, which is the common good, and not for the profit, honour, or private interest of any one man, family, or class of men.
The powers and functions attached to a position manifest its character, and there is implied in every public office an authority to exercise some portion of the sovereign power of the 14 289 SCI/80 532 state in making, executing, or administering the law. .Various positions, on the other hand, have been held not to be public offices, as, for examine, auditor of accounts appointed by railroad Commissioners. " Similarly, Ferris in his thesis on 'Extraordinary Legal Remedies defines public or political offices thus: "A public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law.
It implies a delegation of a portion of the sovereign power.
It is trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties.
The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of Government, either executive, legislative or judicial, to be exercised by the holder for the public benefit." (72 Calcutta Weekly Notes, P.64, Vol.72) Similarly, Wade and Phillips in 'Constitutional Law ' defines political offices thus: The Cabinet is the body of principal Ministers with whom rests the real direction of policy.
We speak of the Ministry or the Administration of a particular Prime Minister with reference to the full body of political office holders who from time to time hold the reins of Government, i.e., the Ministers of the Crown and their Parliamentary Secretaries." O. Hood Phillips in 'Constitutional and Administrative Law ' (4th Edition, p. 312 & 314) defines the hierarchy of Government Departments thus: "Ministers At the head of each Department except the "non political" Departments, which are not important for present purposes is the Minister, whether he is called Minister or Secretary of State or President of the Board.
He is a member of the Government and changes with the Ministry of the day; and he may also be a member of the Cabinet.
Parliamentary Secretaries Under the Minister will be one or more Parliamentary Secretaries, or Parliamentary 533 Under Secretaries of State if the Minister himself is a Secretary of State.
As their name implies, Parliamentary Secretaries are members of one or other of the Houses of Parliament, they are Junior Ministers who change with the Government of the day.
They assist their Chief in the Parliamentary or political side of his work, as well as in the administration of his Department.
The detailed administration of the work of a Government Department is carried out by "permanent" civil servants.
Although, like Ministers, they are servants of the Crown, civil servants are called "permanent" since their appointment is non political and in practice lasts during good behaviour, as opposed to Ministers, Parliamentary Secretaries, etc., who are responsible to Parliament and change office with the Government." So also, Ramsay Muir in his book 'How Britain is Governed ' (3rd Ed.
p. 81) states as follows: "In this chapter we have to discuss the second element in the Government that which changes with every change in the balance of power between parties in the country, which consists not of experts, but of politicians, and which works under the limelight of publicity. .This changing element is known as 'the Ministry '.
" Asirvatham in his book 'Political Theory ' (9th Ed p. 352) defines Political Executive thus : "Turning from the nominal to the political executive, we find at least four distinct forms, viz., the English, the American, the Swiss, and the French.
In England, the Prime Minister and the Cabinet constitute the political executive.
They can remain in office only so long as they command the confidence of Parliament.
They are members of one or the other house of the legislature and play a leading part in initiating legislation.
They are also administrative heads of departments and, in that capacity, are responsible to Parliament not only for policy but also for the details of administration.
They work together as a team and, in their relation to Parliament, stand or fall together." In words and Phrases (Permanent Edition, Vol. 32 [(Suppl.] P. 226] the word 'Political ' has been defined thus : "The word "political" is defined as of or pertaining to policy, politics, or conduct of government. or pertaining 534 to, or incidental to, exercise of functions vested in those charged with conduct of government, and relating to management of affairs of State".
"The word 'political ' is defined by Bouvier to be pertaining to policy or the administration of government.
People vs Morgan, 90 III 558, 563.
The word "political" means that which pertains to government of a nation. . ."(P. 802) A perusal of the observations made in the various textbooks referred to above clearly shows that 'political office ' is an office which forms part of a Political Department of the Government or the Political Executive.
This, therefore, clearly includes Cabinet Ministers, Ministers, Deputy Ministers and Parliamentary Secretaries who are running the Department formulating policies and are responsible to the Parliament.
The word 'high ' is indication of a top position and enabling the holder thereof to take major policy decisions.
Thus, the term 'high public or political office ' used in the Act contemplates only a special class of officers or politicians who may be categorised as follows: (1) officials wielding extraordinary powers entitling them to take major policy decisions and holding positions of trust and answerable and accountable for their wrongs: (2) persons responsible for giving to the State a clean, stable and honest administration; (3) persons occupying a very elevated status in whose hands lies the destiny of the nation.
The rationale behind the classification of persons possessing the aforesaid characteristics is that they wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach of trust, may mar or adversely mould the future of the country and tarnish its image.
It cannot be said, therefore, with any conviction that persons who possess special attributes could be equated with ordinary criminals who have neither the power nor the resources to commit offences of the type described above.
We are, therefore satisfied that the terms 'persons holding high public or political offices ' is self explanatory and admits of no difficulty and that mere absence of definition of the expression would not vitiate the classification made by the Act.
Such persons are in a position to take major decisions regarding social, economic financial aspects of the life of the community and other far reaching decisions on the home front as also 535 regarding external affairs and if their actions are tainted by breach of trust, corruption or other extraneous considerations, they would damage the interests of the country.
It is, therefore, not only proper but essential to bring such offenders to book at the earliest possible opportunity.
It was then contended that even the nature and character of the offences have not been defined in the Act which introduces an element of vagueness in the classification.
We are, however, unable to agree with this contention because clause (4) of the preamble clearly indicates the nature of the offences that could be tried under the Act.
Clause (4) of the preamble to the Act runs thus: "AND WHEREAS all powers being a trust, and holders of high public or political offices are accountable for the exercise of their powers in all cases where Commissions of Inquiry appointed under the or investigations conducted by Government through its agencies disclose offences committed by such holders.
" The words 'powers being, a trust ' clearly indicate that any act which amounts to a breach of the trust or of the powers conferred on the person concerned would be an offence triable under the Act.
Clause (4) is wide enough to include any offence committed by holders of high public or political offices which amounts to breach of trust or for which they are accountable in law and does not leave any room for doubt.
Mr. Bhatia, however, submitted that even if the person concerned commits a petty offence like violation of municipal bye laws or traffic rules he would have to be prosecuted under the Act which will be seriously prejudicial to him.
In our opinion, this argument is purely illusory and based on a misconception of the provisions of the Act.
Section 5 which confers powers on the Central Government to make a declaration clearly refers to the guidelines laid down in the preamble and no Central Government would ever third of prosecuting holders of high public or political offices for petty offences and the doubt expressed by the counsel for the appellant is, therefore, totally unfounded.
It was contended on behalf of the appellants that Parliament was not competent to pass a Special Act and create Special Courts for a particular set of offenders.
This argument need not detain us because it has been effectively answered in the reference case which has held clearly that Parliament was fully competent to pass the Bill creating Special Courts.
536 Regarding the validity of sections 7 and 11 of the Act which correspond to clauses 6 and 10 of the Bill, Chandrachud, C.J., observed as follows: "In view of our conclusion that Parliament has the legislative competence to enact clauses 6 and 10(1) of the Bill, it is unnecessary to consider the argument of the learn ed Solicitor General that, everything else failing, Parliament would have the competence to legislate upon the jurisdiction and powers of the Supreme Court by virtue of article 248(1) read with entry 97 of List I. .
To sum up, we are of the opinion that clauses 2, 6 and 10(1) of the Bill are within the legislative competence of the Parliament.
That is to say, Parliament has the competence to provide for the creation of Special Courts as clause 2 of the Bill provides, to empower the Supreme Court to dispose of pending appeals and revisions as provided for by clause 6 of the Bill and to confer jurisdiction on the Supreme Court by providing, as is done by clause 10(1), that an appeal shall lie as of right from any judgment or order of a Special Court to the Supreme Court both on fact and on law.
" It was also contended for the appellants that the Act seeks to change the situs of the Court and virtually abrogates section 181 of the Code of Criminal Procedure.
This argument also does not merit any consideration because it was raised in the Reference case and rejected.
Dealing with this aspect of the matter, Chandrachud, C.J observed : "As regards situs of trial, it is unfair to make an assumption of mala fides and say that an inconvenient forum will be chosen deliberately.
Besides, the provisions of chapter XII of the Code containing section 177 to 189, which deal with "Jurisdiction of the criminal courts in Inquiries and Trials", are not excluded by the Bill.
Those provisions will govern the question as to the situs of trial." Mr. Bhatia further submitted that the Act creates an invidious distinction inasmuch as persons holding high public or political offices would have the benefit of trial by such an experienced officer as a sitting Judge of a High Court while the appellants have been deprived of that right and were tried by a Special Judge who was only a Sessions Judge.
This argument, in our opinion, is completely devoid of substance.
The first information report against the appel 537 lants was lodged on 13th April 1977 and the charge sheet was submitted before the Special Judge who convicted the appellants by the order dated February 27, 1979.
The Act, however, came into force on May 16, 1979, that is to say, three months after the conviction and about two months after the appellants had filed their appeals before the High Court.
In these circumstances, the question of the appellants being tried by the Special Judge appointed under the Act could not arise because the said Special Court did not exist at all when the trial of the appellants was concluded.
The existence of such fortuitous circumstances cannot attract article 14.
This matter was considered in two decisions of this Court.
In the case of Khandige Sham Bhat & Ors vs The Agricultural Income Tax Officer, Subba Rao J, observed as follows: "If there is equality and uniformity within each group, the law will not be condemned as discriminative, though to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment.
" The same view was expressed thus in a later decision of his Court reported as Dantuluri Ram Raju Ors vs State of Andhra Pradesh Anr.
"The facts that on account of topographical situation some landowners get greater benefit of the drainage scheme because of their lands being more prone to damage by floods is a fortuitous circumstance and the same would not be a valid ground for striking down the impugned legislation.
It is well established that if there is equality and uniformity within each group, the law will not be condemned as discriminative though due to some fortuitous circumstances arising out of a peculiar situation, some included in a class get an advantage over others so long as they are not singled out for special treatment.
" In view of these decisions, the argument of Mr. Bhatia must be overruled.
This, therefore, concludes the submissions made by Mr. Bhatia generally regarding the constitutionality of the Act.
538 Mr. Mridual adopted the above noted arguments, advanced by Mr. Bhatia, but put forward contentions with respect to other aspects which we shall deal with at a later stage of the judgment.
It was next contended by Mr. Bhatia that section 5 of the Act suffers from several constitutional and legal infirmities.
Sub sections (t) and (2) thereof may be extracted here: "Declaration by Central Government of cases to be dealt with under this Act: 5.(1) If the Central Government is of opinion that there is prima facie evidence of the commission of a offence alleged to have been committed by a person who held high public or political office in India and that in accordance with the guidelines contained in the preamble hereto the said offence ought to be dealt with under this Act, the Central Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion.
(2) Such declaration shall not be called in question in any court.
" In the first place, it was contended that section 5(1) suffers from the vice of excessive delegation of powers so as to violate article 14 in as much as the discretion conferred on the Central Government is absolute, naked and arbitrary and is clearly discriminatory as it is open to the Central Government to pick and choose persons and make declarations in respect of them while excluding others.
In our opinion, this contention is based on a serious misconception of the p provisions of the Act.
For one thing, no unguided or uncanalised power has been conferred on the Central Government.
A basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence.
Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble.
The various clauses of the preamble which have been set out in an earlier part of this judgment, lay down clear guidelines and provide sufficient safeguards against any abuse of power.
Thirdly, clause (4) of the preamble clearly lays down that the power under section 5 is exercisable only after the commission of an offence by the holder of a high public or political office bas been disclosed as a result of an inquiry conducted under the or of an investigation conducted by the Government through its agencies.
It is well settled that discretionary power is not the same thing 539 as power to discriminate nor can the constitutional validity of a law be tested on the assumption that where a discretionary power is conferred on a high authority, the same may or would be exercised in a discriminatory manner.
In the case of Dr. N. B. Khare vs The State of Delhi, Kania, C. J., dealing with the same aspect of the matter observed as follows.
"Moreover, this whole argument is based on the assumption that the Provincial Government when making the order ill not perform its duty and may abuse the provisions of the section.
In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of power given by a law sometimes occurs; but the validity of the law cannot be contested be cause of such an apprehension.
In my opinion, therefore, this contention of the petitioner cannot be accepted.
" In the case of Kathi Raning Rawat vs The State of Saurashtra this Court observed: "The discretion that is conferred on official agencies in such circumstances is not an unguided discretion, it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested." The same view was taken in a later decision of this Court in the case of Matajog Dobey vs H. C. Bhart where the court observed as follows: "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 Government and not ill a minor official.
" In the case of In Re The Kerala Education Bill, 1957, this Court said: "But all that we need say is that apart from laying down a policy for the guidance of the Government in the matter of the exercise of powers conferred on it under the different provisions of the Bill including cl. 36, the Kerala Legislature; has, by cl. 15 and cl. 37 provided further safeguards.
540 In this connection, we must bear in mind what has been laid down by this Court in more decisions than one, namely, that discretionary power is not necessarily a discriminatory power and the abuse of power by the Government will not be lightly assumed.
" Similarly, in the case of Jyoti Pershad vs The Administrator for the Union Territory of Delhi, Ayyangar J., speaking for the Court, observed : "So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate." In the case of Moti Ram Deka etc.
vs General Manager, N. E. F. Railway, Maligaon, Pandu, etc Shah J., speaking for the Court remarked "Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully, and possibility of abuse of power will not invalidate the conferment of power.
Conferment of power has necessarily to be coupled with the duty to exercise it bona fide and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power.
If in the scheme of the rules, a clear policy relating to the circumstances in which the power, is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and is not open to attack as infringing the equality clause.
" In the case cf V. C. Shukla vs The State through C.B.I. this Court pointed out that where a discretion is conferred on a high authority such as the Central Government it must be presumed that 541 the Government would act in accordance with law and in a bona fide manner, and said: "In fact, this Court has held in a number of cases that where a power is vested in a very high authority, the abuse of the power is reduced to the minimum." In view of these decisions, it must be held that the power conferred on the Central Government is controlled by the guidelines contained in the preamble which by virtue of the provisions of section 5(1) becomes a part of that section.
As the power has been conferred on the Central Government which is to make a declaration in accordance with the conditions laid down in section 5(1) and, therefore, in conformity will.
the guidelines mentioned in the preamble, the attack based on discrimination is unfounded and is hereby repelled.
Another allied argument advanced by Mr. Bhatia was that the issuance of a declaration under section 5(1) depends purely on the subjective satisfaction of the Central Government and under sub section (2) of section 5 such a declaration cannot be called into question by any court so that there would be an element of inherent bias or malice; in an order which the Central Government may pass, for prosecuting persons who are political opponents and that the section is therefore invalid.
We are unable to agree with this argument.
As already pointed out, the power of the Central Government to issue a declaration is a statutory power circumscribed by certain conditions.
Further more, as the power is vested in a very high authority, it cannot be assumed that it is likely to be abused.
On the other hand, where the power is conferred on such a high authority as the Central Government, the presumption will be that the power will be exercised in a bona fide manner and according to law.
In the case of Chinta Lingam & Ors vs Government of India & Ors., this Court observed: "At any rate, it has been pointed out in more than one decision of this Court that when the power has to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment.
It was said that though the power was discretionary but it was not necessarily discriminatory and abuse of power could not be easily assumed.
There was moreover a presumption that public officials would discharge their duties honestly and in accordance with rules of law.
" 542 To the same effect is the decision of this Court in Budhan Choudhry & Ors.
vs The State of Bihar.
It was however suggested that as the Central Government in a democracy consists of the political Party which has the majority in Parliament, declarations under section 5(1) lt the Act could be used as an engine of oppression against members of parties who are opposed to the ideologies of the ruling party.
This is really an argument of fear and mistrust which, if accepted, would invalidate practically all laws of the land; for, then even a prosecution under the ordinary law may be considered as politically motivated, which is absurd.
Furthermore, prejudice, malice or taint is not a matter for presumption in the absence of evidence supporting it.
It is well settled that burden lies on the parties alleging bias or malice to prove its existence, and if malice or bias is proved in a particular case, the courts would strike down the act vitiated by it, in exercise of its powers under articles 226, 227 or 136.
This aspect of the matter was dealt with in the reference case thus: "Though the opinion which the Central Government has to form under clause 4(1) is subjective, we have no doubt that despite the provisions of sub clause (2) it will be open to judicial review at least within the limits indicated by this Court in Khudaran Das Deo vs The State of West Bengal & Ors. ; , 845).
It was observed in that case by one of us, Bhagwati J., while speaking for the Court.
that in a Government of laws "there; is nothing like unfettered discretion remove from judicial reversibility".
The opinion has to be formed by the Government, to set the least, rationally and in a bona fide manner.
" Another limb of the argument of Mr. Bhatia regarding the provisions about declaration contained in section 5 (1) was that they are violative of the principles of natural justice inasmuch as they do not provide for any hearing being given to the accused before a declaration is made.
This argument, in our opinion, is also without substance.
It is to be borne in mind that at the stage when the declaration is sought to be made there is no list pending nor has any prosecution been launched against the accused.
Section 5 deals only with the decision taken by the Central Government to prosecute and until that decision is notified the prosecution does not start, and the question of an accused being heard at that stage, therefore, does not arise at all.
A couple of instances in point may be cited here with advantage.
In cases where law requires sanction to be given by the appointing authority before a prosecution can be launched against a Government servant, it has 543 never been suggested that the accused must be heard before sanction, is accorded.
The question of sanction arises at a point of time when there is no danger to the liberty of the subject and the accused at that stage is not in the picture at all.
It is only after sanction is accorded that an accused is brought to trial or proceedings are started against him when he is to be heard and can challenge the validity of the sanction Similarly, when a first information report is filed before a police officer, the law does not require that the officer must hear the accused before recording it or submitting a charge sheet to the Court.
Another instance is to be found where a complaint is filed before a Magistrate who chooses to hold an inquiry under section 202 of the Code of Criminal Procedure before issuing process or summons to the accused.
lt has been held in several cases that at that stage the accused has got no locus to appear and file his objections to the inquiry.
The right of the accused to be heard comes into existence only when an order summoning the accused is passed by the Magistrate under section 204 of the Code of Criminal Procedure.
In the case of Cozens vs North Devon Hospital Management Committee & Anr, Lord Salmon pithily observed: "No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused.
" The argument of Mr. Bhatia which is under examination is thus also found to be wholly untenable It was then contended that in the instant case the declaration dated June 22, 1979 made under section 5(1) of the Act per se shows that it had not resulted from any real application of mind by the Central Government.
The declaration is based, it is pointed out, on the existence of prima facie evidence of the commission of certain offences by Mr. Shukla and Mr. Sanjay Gandhi and proceeds to state that the said offences ought to be dealt with under the Act.
It was vehemently argued that at the time when the declaration was made the appellants had already been convicted and had filed appeals in the High Court and that therefore for the Central Government to say that 'a prima facie case ' was made out was to close its eyes to the realities of the situation.
The argument, in other words, is that once the prosecution of the appellants had culminated in a conviction and an appeal therefrom, there was no question of the existence of any 'prima facie case ', and that the use of such an expression could be intelligible only if the accused were facing criminal proceedings which had not culminated in a conviction.
The assertion about the existence of a prima facie case clearly shows, according to learned counsel, that the Central 544 Government did not apply its mind at all to the factors relevant to the issuance of the declaration or that, at any rate, the application of its mind was perfunctory.
We find ourselves, unable to accept of this argument which fails to consider certain fundamental aspects of the scope and ambit of section 5(1) of the Act and is based on a misconstruction of the nature of the declaration which is to be made.
Under the section the Government has to be satisfied on two counts before it could issue a declaration.
It must be satisfied in the first instance that there is prima facie evidence of the commission of an offence.
Secondly, it must form the opinion in accordance with the guidelines contained in the preamble that such offence ought to be dealt with under the Act.
The argument under examination relates to the first limb of the satisfaction of the Central Government.
So, the question arises whether the condition of the existence of prima facie evidence is not fulfilled in the case of the present declaration merely because the trial in the first court had ended in a conviction and an appeal therefrom.
The answer to the question has to be an emphatic 'no ', the reason being that if conviction is construed as evidence of the existence of something more than a mere prima facie case, that would not mean that a prima facie case ceases to exist.
That a prima facie case must be found to exist is only the minimum requirement for the satisfaction of the Central Government and it would be doubly made out if the evidence available is stronger than is needed to make out only a prima facie case.
A conviction of an accused person cannot mean that there is no prima facie evidence against him.
All that it spells out is that not only a prima facie case is made out against him but that the evidence available is even stronger and is sufficient for a conviction.
However, as the Government, while acting under the section, is to satisfy itself only with the existence of prima facie evidence, the assertion by it in the declaration that such evidence was available to its satisfaction cannot, by any stretch of imagination, be held to be inapplicable to a case in which a conviction has been recorded.
In this view of the matter we find the use of the expression 'prima face ' evidence in the declaration to be fully justified even though the trial had ended in a conviction which was under appeal on the date of the declaration.
In this context, the contents of the declaration also deserve scrutiny.
It reads: "WHEREAS the Central Bureau of Investigation recorded under section 154 of the Code of Criminal Procedure (2 of 1974) on the 13th April 1977 a first information report and registered a case being RC 2/77 CIU (1) for suspected offences of a conspiracy to commit theft and actual theft of the film materials of the film 'Kissa Kursi Kaa ' pro 545 duced by one Shri Amrit Nahata from the custody of the Ministry of Information and Broadcasting: AND WHEREAS investigations conducted by the Central Bureau of Investigation disclosed offences committed during the period while the proclamation of emergency dated the 25th June 1975, issued by the President under clause (i of Article 352 of the Constitution was in force: AND WHEREAS after completion of investigation the Central Bureau of Investigation filed a charge sheet on the 14th July 1977 in the court of the Chief Metropolitan Magistrate, Delhi: AND WHEREAS the facts mentioned in the said charge sheet disclosed offences having been committed by Shri Vidya Charan Shukla, who was the Minister of Information and Broadcasting, Government of India, and Shri Sanjay Gandhi, son of late Shri Feroz Gandhi, under section 120 B of the Indian Penal Code, 1860 (45 of 1860) read with sections 409, 435, 411, 414 and 201 of the I.P.C. as well as substantive offences under section 409, 411, 414, 435 and 201 of the I.P.C. as also the said offences read with section 109 of the I.P.C.: AND WHEREAS a case (RC/2/77 CIA I) was filed in the court of the Chief Metropolitan Magistrate, Delhi, with respect to the said offences and the Chief Metropolitan Magistrate committed the case to the Court of Session for trial on 22 2 78: AND WHEREAS the District and Sessions Judge having convicted the accused by his order dated 17 2 79 sentenced Shri Vidya Charan Shukla and Shri Sanjay Gandhi with imprisonment and also imposed fines on them as specified in the said order dated 27 2 79: AND WHEREAS Shri Vidya Charan Shukla and Shri Sanjay Gandhi filed appeals Nos.
71/79 and 72/79 respectively under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) in the High Court of Delhi on 20 3 79 against the aforesaid conviction and that the said appeals were admitted by Delhi High Court on 21 3 79: AND WHEREAS the State has also filed an appeal in the Delhi High Court on 18 5 79 under section 377, Code I of Criminal Procedure (No. 2 of 1974) for enhancement of the sentence with respect to the aforesaid accused persons: 546 AND WHEREAS the above mentioned appeals are now pending in the High Court of Delhi: AND WHEREAS the Central Government after fully and carefully examining the material placed before it in regard to the aforesaid offences is of opinion that there is prima facie evidence of the commission of the said offences by Shri Vidya Charan Shukla, who was the Minister of Information and Broadcasting, Government of India, at the relevant period and as such a person who held high public and political office, Shri Sanjay Gandhi and others and that in accordance with the guidelines contained in the preamble to the 7 1979 (22 of 1979) the said offences ought to be dealt with under that Act.
NOW, THEREFORE, in exercise of the powers conferred by sub section (1) of Section S of the 7 1979 (22 of 1979), the Central Government hereby declares that there is prima facie evidence of the commission of the aforesaid offences alleged to have been committed by 'Shri Vidya Charan Shukla, who was the Minister of Information and Broadcasting, Government of India, during the relevant period, and as such held a high public and political office in India during the relevant period, and Shri Sanjay Gandhi, son of late Shri Feroz Gandhi, and that in accordance with the guidelines contained in the Preamble to that Act, the said offences ought to be dealt with under that Act " A perusal of the declaration reveals that it gives the history of the case from beginning to end which demonstrates that the Central Government was fully aware of the various stages through which the trial of the appellants, passed.
Thus, the formation of the opinion by the Government of the existence of a prima facie case cannot be held to be perfunctory or illusory.
It has not been shown that the declaration was in any way irrational or male fide or based on extraneous considerations.
The argument advanced by Mr. Bhatia, therefore, must be overruled.
The last plank of attack on section 5 of the Act is that the declaration is non est because it has not been laid before each House of Parliament as required by section 13 of the Act.
This argument merits some consideration.
Section 13 runs thus: "13.
Every notification made under sub section (I) of section 3 and every declaration made under sub section (1) 547 of section 5 shall be laid, as soon as may be after it is made, before each House of Parliament." As we read the section, we are clearly of the opinion that its provisions are purely directory and not mandatory so that if the conditions mentioned in it are not fulfilled the declaration would not be vitiated.
It is to be noted that the section does not say that until a declaration is placed before the two Houses of Parliament it shall not be deemed to be effective, nor does the section intend that any consequence would result from its non compliance.
Moreover, the matter is no longer res integra and is concluded by several decisions of this Court, the most recent of them being M/s. Atlas Cycle Industries Ltd. & ors.
vs The State of Haryana where this Court observed: "Thus two considerations for regarding a provision as directory are: (l) absence of any provision for the contingency of a particular provision not being complied with or followed, and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non compliance with the particular provision *** *** *** In the instant case, it would be noticed that sub section (6) of Section 3 of the Act merely provides that every order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid, before both Houses of Parliament, as soon as may be, after it is made.
It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament.
It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under Section 3 of the Act.
It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide.
It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non observance of or non compliance with, the direction as to the laying of the order before both Houses of Parliament.
It would also be noticed that the requirement as to the laying of the order before both the Houses of Parliament is not a condition precedent but subsequent to the making of the order.
In other words, there is no prohi 548 bition to the making of the orders without the approval of both Houses of Parliament.
In these circumstances, we are clearly of the view that the requirement as to, laying contained in sub section (6) of Section 3 of the Act falls within the first category, i.e., "simple laying" and is directory, not mandatory.
" We fully agree with this view and hold that on a true interpretation of section 13 of the Act, it is a case of a simple laying of the declaration before each House of Parliament and the declaration cannot be struck down on he grounds suggested by the counsel.
It was then submitted that as the declaration is based on the result of an investigation held by a Central agency even though the ' offences were alleged to have been committed in a State, it affects the s basic structure of the Constitution and is, therefore, void.
This argument, in our opinion, is also misconceived.
The doctrine of the violation of basic structure of the Constitution or its fundamental features applies not to the provisions of a law made by a State legislature or Parliament but comes into operation where an amendment made in the Constitution itself is said to affect its basic features like fundamental rights enshrined under Articles 14, 19, 31, or the power of amendment of the Constitution under article 368 and so on.
The doctrine has no application to the provisions of a Central or State law because _ if the statute is violative of any provision of the Constitution it can be struck down on that ground and it is not necessary to enter into the question of basic structure of the Constitution at all.
Mr. Mridul, appearing for Mr. Shukla, apart from adopting the arguments of Mr. Bhatia, as discussed above, raised two additional points.
In the first place, he submitted that section 5(1) of the Act has no application to the facts of the present case because under section 5(1) a declaration has to be made on the basis of the sources indicated in the section, namely, inquiries conducted under the or investigations which become otiose and would have relevance only if his client had not been convicted.
This argument, in our opinion, appears to be the same as was put forward by Mr. Bhatia which we have already rejected.
It was next argued that conviction being a finding of guilt can not be said to fall within the situation contemplated by section 5(1) of the Act.
Mr. Mridul contended that as section 6 is an extension of the scheme contained in section 5 the former does not overrule the entire Code of Criminal Procedure but in fact takes in only those cases which are pending at the trial stage 549 when the declaration is made.
Once the case ends in a conviction, section 6 spends itself out and there is no room for the application of section 5, according to learned counsel.
It is true that section 6 does contemplate a prosecution which is relatable to the declaration under section 5 but that does not debar the application of section 5 to other states or a criminal case, especially those specifically dealt with under section 7 of the Act which, as we shall presently show, fully covers the situation in hand.
The limited field in which section 6 operates doss not therefore exhaust the consequences flowing from the issuance of a declaration under section 5 Mr. Mridul however contended that section 7 would not apply to this case because its language embraces only those appeals which arise out of a prosecution which itself is pending at the time when a declaration 'is made.
The argument is devoid of force as, to accept it, would be to ignore an important part of section 7 which runs thus .
If at the date of the declaration in respect of any offence any appeal or revision against any judgment or order in a prosecution in respect of such offence, whether pending or disposed of is itself pending in any court of appeal or revision, the same shall stand transferred for disposal to the Supreme Court.
" The words "whether pending or disposed of" are significant and qualify the immediately preceding clause "a prosecution in respect of such offence".
The legislature has thus taken care to expressly provide that an appeal or revision would be covered by section 7 and transferable to the Supreme Court for disposal if it is directed against a Judgment or order made in a prosecution which is either pending has been disposed of, the only other requirement of the section being that such appeal or revision must itself be pending at the date of the declaration To interpret section 7 in such a way that its applicability is limited to appeals or revisions arising from prosecutions pending at the trial stage at the date of the relevant declarations is possible only if the words "or disposed of" are treated as absent from the section a course which is not open to this Court in view of the express language used.
The argument is therefore repealed.
Finally, it was argued that by providing in section 7 for an automatic transfer of appeals from the High Court to the Supreme Court the legislature has exercised a judicial power which is vested in the Supreme Court alone under section 406 of the Code of Criminal Procedure and that the section is invalid as it conflicts with the said section 406.
550 We are, however, unable to agree with this argument.
There is no question of the exercise of any judicial power by the legislature in enacting section 7 which covers a well known legislative process.
The decision of this Court in Smt.
Indira Nehru Gandhi vs Shri Raj Narain relied upon by Mr. Mridul deals with quite a different situation and is wholly inapplicable to the present case.
There what the legislature did was to disposed of two appeals on merits through an amendment to deprive the court of the opportunity to decide the appeals which are pending before it.
The amendment was struck down by this Court in a judgment during the course of which Mathew, J. Observed: "At the time when the Amendment was passed, the appeal filed by the appellant and the cross appeal of the respondent were pending before the Supreme Court.
Clause (4) was legislation ad hominem directed against the course of the hearing of the appeals on merits as the appeal and the cross appeal were to be disposed of in accordance with that clause and not by applying the law to the facts as ascertained by the court.
This was a direct interference with the decision of these appeals by the Supreme Court on their merits by a legislative judgment.
" Thus, in that case the legislation was ad hominem and was directed against the course of the hearing of the appeals on merits.
In the instant case, however, the Parliament has done nothing of the sort.
By enacting section 7, it has merely provided a new forum for they appeals which were pending in the High Court and in respect of which a valid declaration, fully consistent with the provisions of the Act, was made a course which involved no interference with the P ' judicial functions of the court and was fully open to the legislature.
We are thus clearly of the opinion that the decision relied upon by Mr. Mridul is of no assistance to him and that his argument is without merit.
We now pass on to the next phase of the argument of Mr. Bhatia and Mr. Mridul which relates to the nature of the procedure provided for by the Act.
According to the contention of learned counsel for the appellants, the procedure prescribed by the Act is harsher and more rigorous than that provided for in the Code of Criminal Procedure and causes serious prejudice to the accused and is, therefore.
violative of article 14 of the Constitution.
We might mention here that in view of our finding that the classification made by the Act complies with the dual test laid down by this Court and is a reasonable 551 classification, article 14 would not be attracted even if the procedure is held to be harshar than that available under the ordinary law.
Apart from that, however, we find that the procedure prescribed by the Act is not harsh or onerous as contended but is more liberal and ' advantage to the accused who is assured of an expeditious and fair trial thereunder.
Before, however, dealing with this aspect of the matter, we might dispose of an argument advanced by Mr. Bhatia that his client not having held any high public or political office has been drawn into this case by virtue of the declaration and has, therefore, been singled out for a discriminatory treatment.
We are unable to accept this argument.
It is true that Mr. Sanjay Gandhi has never been the holder of any high public or political office but the first clause of the preamble clearly includes within its ambit not only persons holding high public or political offices but also others as section 8 states .
A Special Court shall have jurisdiction to try any person concerned in the offence in respect of which a declaration has been made, either as principal, conspirator or abettor and all other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code.
" Section 8 thus incorporates the well known concept of joint trial accused persons in respect of offences forming part of the same transaction.
In these circumstances no discrimination, as complained of by the appellants, results.
Coming now to the procedure prescribed by the Act, reliance was placed by learned counsel for both the appellants on a few cases decided by this Court to show that the procedure prescribed by the Act is harsh and unfavorable to the accused.
As suggested by Mr. Bhatia we have tried to judge the harshness or otherwise of the procedure from the vision of an accused person but find ourselves unable to agree with the contention.
We might mention here that in the Reference case, Chandrachud, C.J. pointed out the undernoted three infirmities appearing in the Bill which were violative of article 21 of the Constitution: (1) that there was no provision for transfer of a case; (2) that a retired Judge could be appointed as a special Judge; and (3) that the appointment of a Special Judge was controlled by the Government.
552 Shinghal, J., in his dissenting note observed that if jurisdiction ill the matter of appointing a Special Judge was given to the High Court concerned leaving its Chief Justice to designate one of the Judges of his Court as a Special Judge, the procedure may become very fair and unexceptionable.
This view, however, was not shared by the majority of Judges though they did agree that if such a course was adopted that would be undoubtedly laudable.
But then it is for the legislature to decide upon the procedure to be followed in the matter and it is significant for our purpose that the aforesaid infirmities have been removed by the Act, where under not only is the appointment of a Special Judge made free of control by the government as it now rests with the Chief Justice of the High Court concerned subject to the only condition that he must obtain the concurrence of the Chief Justice of India therefor.
A provision for transfer of cases from one Special Court to another Special Court has also been inserted in 10(1).
The challenge on the ground of violation of article 21 of the Constitution fails.
We shall now deal with the contention that the procedure prescribed by the Act is harsh.
In the first place, it was submitted that under section 7 an appeal pending in the High Court stands transferred to the Supreme Court and that thus the appellant is deprived of a valuable right of having the appeal heard and decided by the High Court which is vested in him the moment he is convicted.
Secondly, it was urged that if the appeal in the High Court was decided against the appellant, he would still have a right to move the Supreme Court Under article 136 of the Constitution against conviction but that by reason of the appeal having been transferred to the Supreme Court, that right also has been taken away.
In our opinion, there is no substance in this grievance.
To begin with, an appeal being a creature of statute, an accused has no inherent right to appeal to a particular tribunal.
The legislature may choose any tribunal for the purpose of giving a right of appeal.
Moreover, an appeal to the High Court is less advantageous than an appeal to the Supreme Court for the following reasons: (1) The right of appeal given to an accused from the order of a Session Judge or Special Judge to the High Court is not totally unrestricted.
Section 384 of the Code of Criminal Procedure empowers an Appellate Court to dismiss an appeal summarily if it is satisfied that there is no sufficient ground for interference.
The relevant portion of section 384 runs thus: "384.
(1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 553 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily; Provided that (a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reason able opportunity of being heard in support of the same, (b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case; (c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case " Thus, an appeal to the High Court under the Code of Criminal Procedure is attended with the risk of being summarily dismissed under section 384.
On the other hand, an appeal to the Supreme Court is governed by section 11(1) of the Act which runs thus: "11.
(1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law.
" An appeal under section 11(1) lies as of right and both on facts and on law.
Thus, the right conferred on a convict by section 11(1) is wider and less restricted than the right of appeal given by the Code of Criminal Procedure.
(2) If the appeal is filed before the Supreme Court or is transferred thereto, the accused becomes entitled to a hearing of his case by the highest court in the country both on facts and on law and thus gets a far greater advantage than a right to move the Court for grant of special leave which may or may not be granted, it being a matter of discretion to be exercised by the Supreme Court.
554 A similar view was expressed in Syed Qasim Razvi vs The State of Hyderabad & Ors where this Court made the following observations: "But in this present case the original trial was by the Special Tribunal which was invested with the powers of a sessions court and consequently only one appeal would lie to the High Court.
It is said that the case could have been tried by the District Magistrate and in that case the accused could have one appeal to the Sessions Judge and a second one to the High Court under the Hyderabad law.
This contention rests on a pure speculation and is hardly tenable.
" In the above view of the matter, we are unable to agree with learned counsel for the appellants that the procedure regarding appeals is harsher than that prescribed by the Code of Criminal Procedure.
There is yet another aspect of the matter which was stressed by the learned Solicitor general.
Under the provisions of section 376 of the Code of Criminal Procedure no appeal by a convicted person would lie in any of the following cases: (1) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees; (2) where a Court of session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees; (3) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees; (4) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not exceeding two hundred rupees.
Thus if the Sessions Judge were to try an accused and sentence him to fine or to imprisonment not exceeding three months, he would have no right of appeal at all.
On the other hand, if a Special Judge imposes the same sentence, an appeal lies to the Supreme Court as of right both on facts and on law.
Could it be reasonably argued in such circumstances that the right of appeal provided by the Act was harsher or less advantageous to the accused ? For the reasons given above, our answer to this question is in the negative.
555 It was then pointed out that the right of having matters decided in A revision by the High Court has been taken away from the accused by the procedure prescribed by the Act, under section 11(1) under which no appeal also lies against an interlocutory order and it was contended that the section therefore entailed a definite procedural disadvantage to the accused.
This argument also is based on a misconception of the provisions of the Act and those of the Code of Criminal Procedure, section 397(2) of which runs thus: "397.
(2) The powers of revision conferred by sub section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
" Thus, even the Code of Criminal Procedure does not provide for any revision against an interlocutory order.
As to what is the connotation of an interlocutory order is a matter with which we are not concerned in this case.
What is material is that so far as interlocutory orders are concerned, there is no right of revision either under the code of Criminal Procedure or under the Act.
In considering this aspect of the matter one must also bear in mind the fact that under the Act the Special Court is presided over by no less a person who is a sitting Judge of a High Court and the possibility of miscarriage of justice is reduced to the bare minimum.
While adverting to this aspect of the case, this Court observed in the case of V. C. Shukla vs The State through C.B.I. (supra): That the Act makes a distinct departure from the trial of ordinary offences by criminal courts in that the trial of the offences is entrusted to a very high judicial dignitary who is a sitting Judge of the High Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of India.
This contains a built in safeguard and a safety valve for ensuring the independence of judiciary on the one hand and a complete fairness of trial on the other.
In appointing the Special Judge, the Government has absolutely no hand or control so that the Special Judge is appointed on the recommendations of the highest judicial authority in the country, viz., the Chief Justice of India.
This would naturally instil great confidence of the people in the Special Judge who is given a very elevated status.
" We may mention here that in the case of Jagannath Sonu Parkar vs State of Maharashtra, the right of appeal, from an order of a Special 556 Magistrate directly to the High Court (bypassing the Sessions Judge) was held to be more advantageous from the point of view of the accused In this connection, this Court said: "It is true that if the complaint was filed in the Court of Magistrate having jurisdiction over Deogad alone, as it could lawfully be filed, an appeal would against an order of conviction, lie to the Court of Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from the order of the Court of Session.
But it is difficult to hold that this amounts to any discrimination.
Apart from the fact that the trial by a special Magistrate and an appeal directly to the High Court against the order of the Magistrate may be regarded normally as more advantageous to the accused persons, the distinction between Courts to which the appeal may lie arises out of the constitution of the Special Magistrate and not any special procedure evolved by the Notification.
" What is true of an appeal to the High Court from the order of a Special Magistrate equally applies to an appeal to the Supreme Court from the order of a Special Court constituted under the Act.
Thus, viewed from any angle, the procedure prescribed by the Act cannot be said to be prejudicial or less advantageous to the accused, much less harsher or more rigorous than the one provided in the Code of Criminal Procedure.
It was then argued that though the Special Court has been give the status of a Court of Session under section 9(3) of the Act, yet it has to follow, under section 9(1) thereof the procedure prescribed for the trial of warrant cases before a Magistrate in sections 238 to 243 and 248 of the Code of Criminal Procedure.
We cannot conceive how any grievance can be made on this score that the provision is harsh.
The procedure for trial of warrant cases gives a full opportunity to the accused to participate in the trial at all its stages and to rebut the case for the prosecution in every possible manner and it has not been pointed out how the adoption thereof for trials under the Act would be to the disadvantage of the accused.
We find that the grievance put forward is unfounded.
Great reliance was placed by learned counsel on the judgment in the State of West Bengal vs Anwar Ali Sarkar in support of the proposition that the procedure prescribed by the Act was harsh and disadvantageous to the accused.
Before referring to certain passages in 557 that judgment (which has been fully considered in the Reference case) we consider it necessary to give the background and the special facts in the light of which the Judges of this Court made the relevant observations.
The West Bengal legislature passed the West Bengal (hereinafter to be referred to as the 'West Bengal Act ') constituting Special Courts and empowering the State Government to refer cases or offences or classes of cases or classes of offences to such Courts but did not at all indicate any guidelines as to the nature of the cases to be so referred which was thus a matter left entirely to the discretion of the Government.
In other words, the Government was given a blanket power to refer any case of whatsoever nature to the Special Courts.
Sub sections (1) and (2) OF section 5 of the West Bengal Act are extracted below: "5(1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct.
(2) No direction shall be made under sub section (1) for the trial of an offence for which an accused person was being tried at the commencement of this Act before any court, but, save as aforesaid, such direction may be made in respect of an offence, whether such offence was committed before or after the commencement of this Act.
" A perusal of these provisions would show that the State Government was given an uncontrolled power to refer for trial offences or cases by a general or special order.
Under section 3, the Government was empowered by a notification in the official Gazette to constitute Special Courts and section 4 provided for the appointment of Special Judges to preside over such Courts.
Even though no conditions regulating the exercise of discretion by the State Government were laid, Sastri, C.J., upheld the validity of the law on the ground that the State in the exercise of its governmental power was entitled to make laws operating differently to different groups of classes of persons.
Elaborating the point, Sastri, C.J., observed: "In the face of all these considerations, it seems to me difficult to condemn section 5(1) as violative of Article 14, If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law.
Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it .
On the contrary, 558 it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier trial under the Act. .
Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained.
As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion.
It might be noticed, therefore, that even though no guidelines at all were provided by the statute, yet Sastri, C.J., held that the classification was a reasonable one and sustained the validity of the law.
The other Judges, however, did not agree with the view of Sastri, C.J., and struck down the provisions of section 5 of the West Bengal Act.
However, the judgment is wholly inapplicable to the present case in which the Act not only lays down clear, explicit and exhaustive guidelines but further requires the State Government to act only on the basis of certain specific conditions and after being satisfied on a fully application of the mind that a prima facie case was made out.
We have already indicated that by enacting section 5, the Act makes the various clauses of the preamble as a part of that section.
Thus, any possibility of discrimination or absolute or arbitrary exercise of powers is excluded by the Act.
The case of Anwar Ali Sarkar (supra), therefore cannot furnish any criterion for judging the validity of any of the provisions of the Act.
It is in the light of this background that we have to examine Anwar Ali Sarkar 's case.
It may be mentioned that one of the grounds which appealed to Sastri, C.J., was that the object of the West Bengal Act was to provide for speedier trial by instituting a system of Special Courts with a simplified procedure which was sufficient, in his opinion, to justify the validity of that Act.
Fazal Ali, J., (as he then was) laid stress on the fact that although a procedure ensuring a speedy trial was prescribed by the West Bengal Act yet that Act had not set out any principle of classification while laying down the new procedure.
He held that in the absence of a reasonable classification a procedure which catered to a speedier trial was itself not sufficient to justify the constitutionally of the West Bengal Act.
In the instant case, we have already pointed out 559 that a reasonable classification of a particular set of persons or class of persons, viz., those holding high public and political offices, has already been made and that this classification is consistent with the object of the statute which is a rational one, viz., expeditious trial.
This was not true of the West Bengal Act, section 5 of which was held to be violative of article 14 by Mahajan, J., also on the ground that there was no basis for the differential treatment prescribed in the West Bengal Act.
He observed: "Section 5 of the West Bengal is hit by article 14 of the Constitution inasmuch as it mentions no basis for the differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences.
By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject." These observations can obviously have no application to the present case because, as already held by us, the Act makes not only a classification but a classification which fulfils the dual test laid down by this Court in several cases Reliance was placed by the counsel for the appellant on the following observations of Mahajan, J.: "The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases.
It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those who are outside the purview of the Special Act.
The Act has left this matter entirely to the unregulated discretion of the provincial government.
" These observations also do not apply to the facts of the present case because the Act in the present case has provided a rational basis for the classification and laid down specific yardsticks for grouping of special class of persons and has provided a different procedure which is not harsh (the position being different in the West Bengal Act) and which is undoubtedly favourable and advantageous to the accused.
Reliance was also placed on a few observations of Mukherjea, J., where he has pointed out that in making the classification the legislature cannot certainly be expected to provide absolute symmetry and has held 560 that while recognising the degree of evil, the classification should not be arbitrary, artificial or evasive.
He has stated: "It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made.
" There can be no doubt that the present Act fulfils all the condition laid down by Mukherjea, J., who found that certain provisions of the West Bengal Act curtailed the rights of the accused in a substantial manner, thereby resulting in discrimination.
Here we have already pointed out that no rights of the accused have been curtailed and that on the other hand, the procedure prescribed is more advantageous and fair to him than that available under the ordinary law of the land, namely, the Code of Criminal Procedure.
Finally, Mukherjea, J., pointed out that the language of section 5(1) of the West Bengal Act vested an unrestricted discretion in the State Government in cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down by that Act.
This infirmity is not present in the provisions of the present Act which treats equally all persons who form part of the classification made by the Act, the same procedure being applicable to all.
The ordinary law governs only those persons who are left out of the classification and do not fulfil the conditions of the persons constituting the class, namely, holders of high public and political offices.
Thus, the observations of Mukherjea, J., are of no help to the appellants which is also true of passages appearing in the judgment of Das, J., (as he then was) and cited before us.
In the first place, Das, J., deals with the conditions necessary for a valid classification, which have already been spelt out by us.
There the learned Judge held that if the State Government classified offences arbitrarily, without any reasonable or rational basis having relation to the object of the Act, its action will amount to an abuse of its powers.
We have already pointed out that there is no question of the classification made by the Act being arbitrary or unreasonable because the basis for the classification is undoubtedly a reasonable one and has a rational nexus with the object of the Act, namely, expeditious trial.
We have pointed out that it will be in the public interest that the offenders sought to be tried under In the Act are either convicted or acquitted within the shortest possible time.
Bose, J., conceded that though the procedure prescribed by the West Bengal Act may promote the ends of justice and would be 561 welcome, yet he took serious exception to the differential treatment resulting therefrom.
He observed: "What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic.
It is the differentiation which matters; the singling out of cases or groups of cases or even of offences or classes of offences, of a kind fraught with the most serious ' consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment.
" All these observations have however, to be read in the light of the peculiar provisions of the West Bengal Act which contained no guidelines, no conditions, no safeguards but conferred uncontrolled and arbitrary powers on the Government to make the classification as it liked.
This, however, is not the case here.
We are, therefore, unable to agree with learned counsel that the observations of the Judges constituting the Bench in Anwar Ali Sarkar 's case (supra) can be called into aid for the purpose of striking down the Act in the present case.
Thus, after a consideration of the provisions of the Act, the guidelines contained in the preamble, the procedural part of the Act and the classification made we are clearly of the opinion that none of the sections of the Act are violative of article 14 or article 21 or any other provision of the Constitution.
We hold that the classification is valid and reasonable and has a rational nexus with the object of the Act and that the procedure prescribed is fair and advantageous to the accused.
Accordingly, we declare that the Act and its provisions are constitutionally valid and over rule preliminary objections taken on behalf of the appellants.
FAZAL ALI, J.
The appellant, V. C. Shukla (hereinafter referred to as 'A 1 ') in criminal appeal No. 494 of 1979 has been convicted by the Sessions Judge, Delhi under section 120 read with sections 409, 435, 411, 414 and 201, Indian Penal Code and also under section 409, Indian Penal Code in respect of the positive print and negative and other material of the film 'Kissa Kursi Kaa; under section 411 read with section 109, Indian Penal Code; under section 414 read with section 109, Indian Penal Code: under section 435 read with section 109 I.P.C. and under section 201 read with section 109, I.P.C.
The appellant, Sanjay Gandhi (hereinafter referred to as 'A 2 ') in Criminal appeal No. 493 of 1979 has been convicted by the Sessions Judge, Delhi under section 120 B read with ss 409, 435, 411, 414 and 201 of the Indian Penal Code and 562 has been further convicted under sections 435, 411 and 201, I.P.C. in regard to the negative and other material of the film 'Kissa Kursi Kaa ' as also under section 409 read with section 109 of the Indian Penal Code.
Accused No. 1 was sentenced under section 120 read with sections 409, 435, 411, 414 and 201 to two years rigorous imprisonment; under section 409; regarding the negative and other materials to two years rigorous imprisonment and a fine of Rs. 20,000/ and in default further 6 months rigorous imprisonment; under section 409 regarding the positive print of the film to two years rigorous imprisonment and fine of Rs. 5,000/ and in case of default further rigorous imprisonment for three months; under section 411 read with section 109 to rigorous imprisonment for one year; under section 414 read with section 109 to rigorous imprisonment for one year; under section 201 read with section 109 to rigorous imprisonment for one year; and under section 435 read with section 109 to rigorous imprisonment for one year and six months.
Accused No. 2 was sentenced under section 120 B read with sections 409, 435, 411, 414 and 201 to rigorous imprisonment for two years; under section 435 to rigorous imprisonment for one year and six months and a fine of Rs. 10,000/ and in case of default further rigorous imprisonment for four months; under section 411 to rigorous imprisonment for one year; under section 414 to rigorous imprisonment for one year; under section 201 in regard to the negative etc., to rigorous imprisonment for one year; under section 201 in regard to 13 trunks, etc., to rigorous imprisonment for one year and under section 409 read with section 109 to rigorous imprisonment for two years.
The aforesaid sentences or imprisonment were ordered to run concurrently in the case of both the accused.
The learned Sessions Judge has given full and complete details of the prosecution case against the appellants and has divided the allegations against them in several parts.
On being convicted by the Sessions Judge, Delhi, the accused filed appeals before the Delhi High Court against their convictions and sentences, indicated above, and were released on bail pending the hearing of the appeals.
Meanwhile, the of 1979 came into force and by virtue of a declaration made under section 7 of the said Act.
, the appeals stood transferred to this Court and were placed for hearing before us.
As the learned Sessions Judge has given all the necessary details of the prosecution case against the appellants, it is not necessary for us to give all the facts but we propose to give a bird 's eye view of the sub stratum of the allegations on the basis of which the appellants have been convicted, dwelling particularly on those aspects which merit serious consideration.
We have heard learned counsel for the parties at great length both on the constitutional points involved in appeals and the facts.
By an order dated December 5, 1979, we 563 disposed of the constitutional points which were in the nature of preliminary objection to the maintainability of these appeals and overruled these objections.
The reasons for the said order have been given by us which would form part of this judgment.
Coming now to the facts, shorn of unnecessary details, the story begins with the production of a film called Kissa Kursi Kaa by Shri Amrit Nahata, PW 1, under the banner of Dhwani Prakash.
PW 1 was a member of Parliament and had produced the film in the year 1975.
The film, according to the prosecution, was a grotesque satire containing a scathing criticism of the functioning of the Central Government and was open to serious objections which were taken even by the Central Board of film Censors (hereinafter to be referred to as the 'Board ').
After the film was ready for release, PW 1, Amrit Nahata, applied for certification of the film on the 19th of April 1975 before the Board.
The film was viewed on April 24, 1975 be an Examining Committee of the Board and while three Members were of the opinion that certificate for exhibition, with drastic cuts should be given, another Member and Mr. N. section Thapa, the Chairman disagreed with the opinion of their colleagues and accordingly referred the matter to the Revising Committee.
The Revising Committee after viewing the film agreed by a majority of 6: 1 for certification of the film, the dissent having been voiced by Mr. Thapa, the Chairman and accordingly under rule 25(ii) of the Cinematograph (Censorship) Rules, 1958, a reference was made to the Central Government on 8 5 75.
In this connection, a letter was addressed to PW 6, Mr. S.M. Murshed, who was at the relevant period Director in the Ministry of Information & Broadcasting, Incharge of film and T.V. Projects and was appointed Joint Secretary on, 1st May 1975.
The correspondence in this regard is to be found in the file Ext.
PW/6A.
Before making his comments PW 6 saw the film time in the middle of May 1975.
Meanwhile, PW 1, Amrit Nahata. was directed to deposit the positive print of the film comprising 14 reels of 35 mm with the Films Division Auditorium, situate at 1, Mahadev Road, New Delhi (hereinafter to be referred to as the 'Auditorium ').
In pursuance of these directions, PW 1 deposited .
the positive print and an entry thereof Was made by the Librarian cum Projectionist of the Auditorium which is Ext.
PW 17/A. PW 17 K.P. Sreedharan, who was a Technical Officer Incharge also inspected the reels and found them in order.
Although Murshed, PW 6, after seeing the film agreed with the opinion of the Chairman of the Board that film may be open to objection on the ground that it was full of sarcasm and contained criticism of the political functioning of the government machinery 564 yet he was personally of the opinion that certification for exhibition should not be refused.
The witness accordingly recorded a note and submitted it to Mr. A. J. Kidwai, the then Secretary, Ministry of information and Broadcasting.
The matter was then examined by Mr. I.K. Gujaral, the then Minister of Information & Broadcasting but no final decision was taken.
Meanwhile, PW 1, Amrit Nahata filed a writ petition in this Court which is Ext.
PW 1/D.
On the 23rd of June 1975, a notice was issued by the Ministry of Information & Broadcasting to PW 1, Amrit Nahata, to show cause why certification to the film be not refused.
The notice was made returnable by 9 7 75.
Thus, it appears that the Ministry of Information & Broadcasting had taken a tentative decision to refuse certification to the film because of its objectionable and offensive nature.
We might state here that so far, neither A 1 nor A 2 was anywhere in the picture.
In fact, the position is that the film faced rough weather even at the initial stage of consideration by the Board as a result of which the matter was referred to the Central Government where the question of refusal of certification was seriously considered and ultimately a notice was issued under the directions of the Ministry.
We have particularly highlighted this aspect of the matter because the learned Sessions Judge was largely swayed by the consideration that A 1 took a very prominent part in banning the film and in getting the positive print and other material in his personal custody in order to destroy the same with the aid of A 2.
On the other hand, the facts disclosed by the prosecution ex facie show that objections to certification of the film had been taken at the very initial stage and the ultimate order was passed during the time when A 1, Mr. Shukla had taken over as Minister, which was merely the final scene of a drama long in process.
Continuing the thread from where we left it, Emergency was proclaimed 911 the night between 25th and 26th of June 1975 and soon thereafter A 1 took charge as the Union Minister of Information & Broadcasting and he was of the opinion that the film should be banned.
On July 5, 1975, in pursuance of the decision taken by the Central Government, the Coordination Committee directed seizure of the film and that its negatives, positives and all other materials relating to it be taken in the custody of the Central Government vide Ext.
PW 6/D. On July 10, 1975, A 1 directed that the film be banned from screening under the Defence of India Rules, vide Ext.
PW 6/E 4.
Finally, on the 11th of July 1975, PW 6, Murshed, passed an order that no certification was to be given to the film for public exhibition which was followed by a letter dated July 11, 1975, forfeiting the film to the Government.
In pursuance of the decision taken by the Central 565 Government, PW 39, section Ghose, Deputy Secretary, Incharge of the Films Division, wrote a letter to the Chief Secretary, Government of Maharashtra for seizure of all the positives and negatives of the film as also other related materials.
In pursuance of this order, the Bombay police seized the entire film on 1 8 1975 and deposited the same in the godown of the Board.
As, however, a final order had been passed by the Government banning the film, PW 1, Amrit Nahata, filed a petition for special leave in the Supreme Court on 6 9 1975.
This petition was heard on 29 10 75 and this Court directed the Government to screen the film on 17 11 1975 in the Auditorium for being shown to the Judges constituting the Bench.
In pursuance of the order of this Court, intimation was sent to the Ministry concerned and PW 62, Mr. S.M.H. Burney, who was then Secretary, Ministry of Information & Broadcasting, directed that immediate action be taken to implement the orders of the Supreme Court, and that arrangements should be made to book the Auditorium for 17 11 1975.
By a letter dated 5 11 1975, Ext.
PW 2/A 2, the Supreme Court was also informed regarding the steps taken which, according to the prosecution were the prelude to the conspiracy between the two appellants leading to the seizure, disposal and destruction of the film.
Sometime thereafter, PW 2, L. Dayal, took over as Joint Secretary (Films Division) in place of Mr. Murshed.
We might emphasise at this stage that there is absolutely no evidence to show that there was any meeting of minds between A 1 and A 2 nor is there any material to indicate that A 2 played any role in the banning of the film.
The decision to ban the film appears to have been taken by the Ministry headed by A 1, on the merits of the case.
No motive is attributable to A 1 at this stage because even the Chairman of the Board, PW 8, Mr. Thapa, who was an independent witness, was of the view that the film should not be certificated for public exhibition.
Similarly, the steps taken by the officers of the Ministry in pursuance of the banning of the film, namely, the seizure of the film at Bombay and its transfer to Delhi appear to be in the nature of routine to see that the decision taken by the Government was implemented.
As no stay had been obtained by PW 1, Amrit Nahata, from the Supreme Court, the Government was not bound to stay its hands.
On the other hand, as soon as the Ministry received the orders of this Court for screening the film on 17 11 1975, immediate steps were taken to comply with the orders of this Court.
Before we proceed further, we might indicate that it is well settled that in order to prove a criminal conspiracy which is punishable under 566 section 120 B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence.
This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence.
It is true that in most case it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
After having gone through the entire evidence, with the able assistance of Mr. Rajinder Singh, learned counsel for A 1 and of learned counsel for the State, we are unable to find any acceptable evidence connecting either of the appellants with the existence of any conspiracy.
We are further of the opinion that even taking the main parts of the prosecution case at their face value, no connection has been proved with the destruction of the film and the two appellants.
The prosecution has, of course, produced some witnesses to show the existence of the alleged conspiracy or some sort of connection of the appellants with the destruction, of the film but that evidence, as we shall show, falls short of the standard of proof required in a criminal case.
We realise that the prosecution was seriously handicapped because the investigation started only after the Janata Government came into power in March 1977, that is to say, about a year and a half after the offences in question were allegedly committed, by when naturally much of the evidence would have been lost and even some of the important witnesses examined by the prosecution had turned hostile and refused to support its case.
Despite these difficulties, the prosecution has to discharge its onus of providing the case against the accused beyond reasonable doubt.
We, therefore, propose to deal only with that part of the evidence led by the prosecution which has been relied upon to prove some sort of a connection of the appellants with the alleged destruction of the film In this connection, we propose to deal with the evidence in three separate parts (1) the deposit of the positive print in the Auditorium and its alleged transfer to the personal custody of A 1 ; (2) the arrival of thirteen trunks containing negative and other material related to the film at New Delhi from Bombay in pursuance of the orders of A 1 and their transfer to 1, Safdarjung Road, then to the Maruti Complex; and 567 (3) the actual orders alleged to have been given by A 2 for burning the film in the premises of the Maruti Complex which operation, according to the prosecution was carried out by the approver, PW 3, Kherkar, and other witnesses between the 10th and 24th of November 1975.
Although there are other elements on which prosecution has adduced evidence which is by no means very convincing or consistent but even if we assume those elements to be proved, if the three aspects indicated above, are not proved the prosecution is bound to fail.
We now proceed to deal with the first part of the case.
(1) The deposit of the prints at the Auditorium and its alleged transfer to the personal custody of A 1.
In the Auditorium, PW 17, Sreedharan screened the film in order to show the same to PW 6, Murshed, on the 22nd May 1975 and again on the next day at the instance of the Ministry of Information & Broadcasting.
Some private shows were also screened at the instance of PW 1, Amrit Nahata, though this was not permissible under the Rules.
It was also the prosecution case that PW 39, Ghose and PW 61, C. K. Sharma met PW 17, Sreedharan and PW 18, Bhawani Singh and examined the prints which were then kept in the green room.
Ghose then rang up Sreedharan and told him that he was coming to the Auditorium to take delivery of the prints.
Accordingly, PW 39, Ghose is said to have arrived at the Auditorium and the fourteen reels contained in cans were put on the back seat of his car.
PW 39, Ghose then went to Shastri Bhavan and put the cans in the dicky of the staff car of A 1 in the presence of the driver, Babu Ram, PW 33.
Thereafter, when A 1 came, Babu Ram took the car to 1, Safdarjung Road where the cans were unloaded and kept in the office of R. K. Dhavan, Additional Private Secretary to the then Prime Minister.
In support of this part of the case, the prosecution examined PW 18, Bhawani Singh, PW 33, Babu Ram; PW 61, C.K. Sharma; PW 57, V.S. Tripathi, PW 60, R. L. Bandish and PW 39, Ghose.
So far as PWs 39, 57, 60 and 61 are concerned, they did not support the prosecution case regarding the transfer of the prints to the custody of A 1 as alleged by the prosecution.
So the only witnesses to prove the factum of transfer were PWs 17 and 33.
The prosecution also examined some other witnesses PW 1, Amrit Nahata, PW 2, L. Dayal and PW 62, Burney to show that the transfer 568 of the positives of the film to the custody of A 1 was carried out at the oral instruction of A 1.
PW 62, however, did not support the prosecution and thus, on this point, the only witnesses worth considering are PWs 1 and 2.
We would first refer to the evidence of PW 1, Amrit Nahata.
He stated that he was directed to deposit the positive print of the Films to Films Division Auditorium at Mahadev Road and consequently he complied with the direction on 17 5 1975, and obtained a receipt.
The witness goes on to state that one of the factors which weighed with him in withdrawing the writ petition he had filed in the Supreme Court was that he was persuaded and pressurised and threatened by A 1 to withdraw the writ petition.
He, however, admitted in his cross examination that the process of persuasion and pressurisation and threats was carried out not on one but on several occasions.
He then went to the extent of saying that the Minister (A 1) used to talk to him in this connection in Parliament, in his office and sometimes even at Shastri Bhavan.
He further stated that even in the Central Hall of Parliament he did not hesitate from threatening him.
The witness admitted that he never filed any written application before the Supreme Court alleging the threats given to him by A 1.
He further admits that after the Janata Government took over in March 1977 while he had written to Mr. L. K. Advani, who succeeded A 1.
regarding the film, he made no mention of any such conversation between him and A 1 about the threats, etc.
Finally, he admitted that no one was present in the office when he talked to, Mr. Shukla.
In view of these statements, we find it difficult to believe the witness.
The entire version given by him is inherently improbable, firstly, because of his failure to draw the attention of the Supreme Court to the threats, etc.
Secondly, it is impossible to believe that after the Janata Government came to power and he wrote a letter to Mr. Advani regarding the film, he would not mention that he had been pressurised or threatened by A 1 when he was undoubtedly very much interested in his film being exhibited and bore a serious grouse and animus against A 1 because he had refused certification for exhibition of his film.
In these circumstances, we are unable to place any reliance of the testimony of this witness so far as the allegation of threats, pressurisation, etc., made by A 1 is concerned.
Thus, if his evidence is rejected on this point, then excepting the testimony of PWs 2 and 63, there is no evidence to show that A 1 had any connection or link with the transfer of the positive print of the film.
This brings us to the consideration of an important witness PW 2, L. Dayal, on whom great reliance has been placed by the learned 569 Sessions Judge.
So far as PW 2 is concerned, he states that sometime in the first week of November, A 1 called him and said that he had decided to keep all material relating to the film in his personal custody and that detailed arrangements for the delivery of the material would be made by his personal staff and the work would be done by a respectable officer.
The witness further states that PW 57, V. section Tripathi, was also present at the time when this conversation between the witness and A 1 took place.
He further states that he had apprised PW 62, Burney, the Secretary, of the talk he had with A 1.
Both PW 57 and PW 62 have not supported the witness on these points and have denied the same.
The witness had also stated that he had called PW 39, Ghose and apprised him of the instructions of the Minister for carefully and confidentially putting all material in the personal custody of the Minister.
Ghose, however, in his evidence does not support the story of instructions by the Minister and denies having been told anything of the kind by the witness.
Of course, all The three witnesses, namely, Tripathi.
Burney and Ghose, had been declared hostile.
The witness further goes on to state that he had called PW 4, Khandpur, who happened to be in Delhi and had told him that all the film material pertaining to the film 'Kissa Kursi Kaa ' Lying at Bombay had to be carefully and confidentially collected and sent to Delhi.
PW 4, however, clearly admits in his evidence that the instruction which he had received was to send the material to the Ministry of Information & Broadcasting.
As we shall show, PW 2 appears to be deeply interested in the prosecution.
In these circumstances, even Mr. Jethmalani, appearing for the State, frankly conceded that he would not ask the Court to rely on this witness unless he was corroborated by some other independent evidence.
In fact, far from there being any independent evidence to corroborate the version of the witness in regard to the instruction given by A 1, the persons to whom the witness mentioned these facts, viz., Tripathi, Burney and Ghose, have not supported him.
Thus, so far as the role played by A 1 on the first part of the case is concerned, this is all the evidence produced by the prosecution and is this evidence is rejected, Then it is not proved at whose instruction the film cans were transferred from the Auditorium to 1, Safdarjung Road nor has it been established that this was done with the knowledge of A 1.
Coming back now to the evidence of the transfer of the positive print from the Auditorium into the car of Ghose and therefrom to the staff car of A 1 at Shastri Bhavan and finally to 1, Safdarjung Road, the evidence led by the prosecution consists of PWs 17 and 33.
The other witnesses examined on this point have not supported 570 the prosecution case.
From the evidence of PW 17, it appears that PWs Ghose, C. K. Sharma and Bhawani Singh met him and examined the prints and then the prints were kept in the green room.
Later, the same day Ghose rang up the witness to inform him that he was coming to take the positive print of the film which should be kept ready.
Thereafter, Ghose arrived and the prints were brought from the green room and placed in the back seat of car of Ghose.
Ghose thereafter drove the car but gave no receipt for taking the film.
Half an hour later, according to the witness, there was a telephone call from Tripathi to enquire if the film had been delivered to Ghose.
The witness informed him that this had been done.
I was also stated by the witness that a letter (Ext.
PW 17/E and E 1) was got written by Ghose before he took the film in his car.
It may be noticed here that prior to the filing of the FIR an inquiry had been held by PW 40, Narayanan, into the manner how the prints of the film were missing and in that inquiry PW 17, Sreedharan, did not say at all that Ghose had taken away the film.
In this connection, the witness deposed as follows: "Q. You did not tell Shri Narayanan that section Ghose had come to you in his car and you had delivered the film to him in his car and he had taken it away? Ans.
No. I did not tell him like this (Voltd: It was so as section Ghose had asked me to say differently to Shri Narayanan and I stated as advised by section Ghose.) Q.
You know that enquiry had been ordered by Shri L. K. Advani, Minister for Information & Broadcasting ? Ans.
And yet you deliberately told a lie before Shri Narayanan? Ans.
Yes, because of section Ghose.
" Thus, the witness admitted that he spoke a lie before Narayanan merely because of Ghose.
Further, even in his statement before the police, the witness did not state that Ghose had come to him for taking away the film on the same day, i.e., the day on which Ghose had telephoned that he would be coming to take the film.
So far as PW 39, Ghose is concerned, he has totally denied having told the witness to keep the positive prints ready or that he ever took delivery of the prints from the witness and put the same in his car.
Thus, even the prosecution case relating to the transfer of the positive prints through PW 39, Ghose, to 1, Safdarjung Road becomes doubtful.
571 Even so, assuming that Ghose did take delivery of the positive prints that does not conclude the matter because the prosecution has further to prove that the prints were taken away from the Auditorium at the instruction of A 1 and then kept in the staff car of A 1 and taken to 1, Safdarjung Road with the knowledge of A 1.
On this print, the evidence of PW 17 is absolutely silent and he says nothing about it nor was he competent to say the same.
The only other witness PW 33, Babu Ram, states that sometimes in the winter of 1975 PW 61, C.K. Sharma, called him and told him that there was some luggage (saaman) of Minister Saheb which was to be kept in his car and asked him to bring the Minister 's car close to where Ghose 's car was parked.
The witness found 10 to 12 round boxes which were transferred to the dicky of the staff car.
Thereafter, according to the witness, PW 60, Bandlish, had a talk with Ghose and after the Minister had come, the car was driven to 1, Safdarjung Road.
On reaching 1, Safdarjung Road, the Minister went out of the car and a person came and took, away the saaman.
Thereafter, the witness drove A 1 to other places.
In his statement before the police, the witness did not state that PW 61, C. K. Sharma had told him that the saaman of Minister Saheb (emphasis being on Minister Saheb) was to be transferred to the dicky of the staff car.
Both Bandlish and C. K. Sharma have not supported the version of this witness and have denied everything.
Even taking the version of this witness at its face value, there is nothing to show that when A 1 boarded the staff car at Shastri Bhavan he was told either by the driver or by anybody that the film cans had been placed in the dicky and were to be taken to 1, Safdarjung Road or that they had been brought from the Auditorium.
Even when the car reached 1, Safdarjung Road.
Babu Ram never informed the Minister about the boxes having been kept in the dicky nor is there any evidence to show that the boxes were unloaded from the dicky of the Minister 's car either in his presence or to his knowledge.
Thus, all that has been proved is that the cans were transferred from the Auditorium to 1, Safdarjung, Road.
Taking the evidence of PW 17 and PW 33 as also PW 18, Bhawani Singh at its face value, no connection between A 1 and the transfer of the film has, been established.
Thus, the prosecution has failed to prove that the positive prints of the film were transferred from the Auditorium to the personal custody of A 1 or that the said transfer was done in accordance with his instruction or to his knowledge.
(2) The transfer of negatives and other material related to the film from Bombay to Delhi and to 1, Safdarjung Road and from there to Maruti Complex at the order of A 1 572 So far as this part of the prosecution case Is concerned, the evidence is wholly insufficient to attribute any knowledge or ulterior motive tn A 1 in directing the negatives to be sent from Bombay to Delhi.
Some evidence has no doubt been adduced be the prosecution to show some amount of criminality on the part of A 1 but that evidence, as we shall show, is not very reliable.
To begin with, according to PW 6, Murshed, A 1 said that there was some sort of an informal discussion between A 1, Mr. A. J. Kidwai, the then Secretary in the Ministry of Information & Broadcasting and the witness when A 1 directed that the film be banned and seized, but that no action was taken by the witness until the file reached him.
The witness added that on July 7, 1975 there was another meeting attended by Sarin and other officers which was presided over by A 1 and in this meeting a final decision was taken that the film should be taken over and mention was made that the Defence of India Rules should be pressed into service.
The witness further stated that ultimately in the Coordination Committee meeting which was held on July 10, 1975, and was also presided over by A 1, the earlier decision taken by the Government was reiterated.
The witness then goes on to state that he passed the order Ext.
PW 6/A 9 on July 11, 1975 which directed that the certificate for public exhibition was refused and the said order was communicated to PW 1, Amrit Nahata.
This was followed by another order Ext.
PW 6/A 10 which forfeited the film Kissa Kursi Kaa.
Both these orders were approved by the Minister which had to be done in consequence of the decision taken by the Government.
After the film had been banned and forfeited, the seizure of the film material at Bombay became a necessary consequence and accordingly a letter dated July 14, 1975 was issued under the signatures of PW 39, Ghose to The Chief Secretary.
Government of Maharashtra for seizure of the film material relating to the film and requiring him to deposit the same with the Board.
The next question that arises is as to why the negatives and other material of the film were directed to be sent to Delhi.
It is obvious that once the film was banned and forfeited and action under the Defence of India Rules had to be taken, it was in the.
nature of a routine operation that the negatives and other material of the film should be placed in the custody of the Ministry of Information & Broadcasting.
This appears to US to be the main reason why A l 11 directed that these materials may be sent from Bombay to Delhi.
In order to incriminate the Minister the prosecution urges that this was done by A l to get the.
negatives, etc., in his personal custody so that 573 he would be in a position to destroy the same.
On this, there does not appear to be any clear evidence and even the Sessions Judge has based his findings largely on speculation.
To begin with, L. Dayal, PW 2, who was then attached to A 1 as Joint Secretary (Films) states that on 6 11 1975 A 1 told him in the presence of Tripathi, PW 57, that A 1 had decided to keep all material relating to the film in his (A 1 's) personal custody, that detailed arrangements for the delivery of the material would be made by A 1 's personal staff and that the work had to be done by a responsible officer.
The witness adds that he conveyed the decision to the Secretary and to section Ghose, PW 39, and then called PW 4, Khandpur, Chief Producer, Films Division, Bombay who happened to be in Delhi and asked him that all the material pertaining to the film 'Kissa Kursi Kaa ' lying at Bombay had to be carefully and confidentially collected and sent to Delhi.
At the time when this talk took place Ghose and Tripathi were present, according to PW 2, who then rang up Vyas (Chairman of the Board) and gave him similar instructions in the presence of Ghose and Tripathi.
However, neither Tripathi nor Ghose supports PW 2 on the point that he had asked Khandpur to collect the. material of the film 'carefully and confidentially which particular words were attributed to A 1 to show his criminal intent.
In this connection, Ghose, PW 39, who was declared hostile to the prosecution, stated: "As I was coming out of the room of Shri Burney, I dropped in Shri Dayal 's room which was in the same corridor with a view to inform him that had gone to the Auditorium and checked the film and had found the film intact.
I also told him that I had informed Shri Burney accordingly.
I found Shri K. L. Khandpur also sitting in the room of Shri Dayal.
Shri Dayal asked me to take my seat.
After a few moments I found Shri V.S. Tripathi walking into the room of Shri Dayal.
He also took his seat.
When I entered the room Shri Dayal was already conversing with Shri Khandpur.
Looking at us, namely, myself and V. section Tripathi and Shri Khandpur, Shri Dayal generally enquired where.
filmic material was lying at Bombay.
Shri Dayal also gave direction to Shri Khandpur for collecting the filmic material at Bombay with a view to transporting it from Bombay to Delhi.
I do not recall Shri Dayal taking the name of the Minister or the Secretary at the time of the discussion.
I also do not recall whether he mentioned word secretly during this discussion.
My feeling was that the entire 574 responsibility for the collection and transportation of the filmic material from Bombay to Delhi was left with Shri K. L. Khandpur.
" The stand of Tripathi, PW 57, who was also allowed to be cross examined by the prosecution was as follows: "Shri Dayal gave instructions to Shri K.L. Khandpur in my presence and that of Shri section Ghose to shift the negative material of film Kissa Kursi Kaa from Bombay to Delhi.
At the request of Shri Khandpur, Shri Dayal also spoke to late Shri V. D. Vyas about this matter and told him on telephone that the negative material was to be shifted from Bombay to Delhi and that the transportation arrangement would be explained by Shri Khandpur to hi on his return to Bombay.
Roughly this is all that I re member and in addition that it was early in the afternoon.
" The witness was specifically asked whether in his presence A 1 gave instructions to L. Dayal, PW 2, that he (A 1) wanted the positives and negatives of the film in his own custody immediately and confidentially.
He denied the correctness of the assertion and was con fronted with the following portion ( 'E ' to 'E ') of his statement made on the 25th April 1977, to K. N. Gupta, Deputy Superintendent of Police, C.I.A., New Delhi: "Later, some time in the afternoon, the Minister called me inside his room.
Shri Dayal was also inside and I noted that discussion was going on about the film 'Kissa Kursi Kaa .
The then Minister of I & B, gave instructions to Shri L. Dayal, Jt.
(Information) in my presence that he wanted the positives & negatives etc.
of the film, "Kissa Kursi Kaa" to be handed over to him, in his custody immediately & confidentially.
The Minister also said that the arrangements for transportation will be made by him and Shri Dayal should get in touch with the personal staff for this." The witness also denied the correctness of the assertion that in his presence later on Shri Dayal, PW 2,1 had told Shri Khandpur, PW 4 that the film should be brought from Bombay to Delhi "very carefully without telling anybody about it".
He was confronted with portion 'F to F ' of his said statement to the police where the assertion appears.
Even Khandpur, PW 4, who has fully supported the prosecution has not said anything in his evidence to indicate that PW2 had said that 575 the materials should be 'carefully and confidentially" collected and sent to Delhi.
On the other hand, PW 4 says thus: "I was called by L. Dayal, the Joint Secretary in his office.
I was asked to make arrangements for collecting all material pertaining to film Kissa Kursi Kaa available at Bombay and to send the same to Delhi.
I have seen file CFD/51 shown to me, exhibit PW 4/E.
It is named "Confidential Material Received from C.B.F '.C. and sent to Ministry of 1 & B in November 1975".
This file pertains to Films Division Bombay.
This file pertains to the film materials of Kissa Kursi Kaa.
Another file pertaining to this film is the one which contains Exts.
PW 4/A to PW 4/C." The file Ext.
PW 4/E was labelled as 'Confidential ' and shows that the film material was sent to the ministry of information & Broadcasting in November 1975.
But there was nothing to indicate in the files or in the evidence of PW 4 that the materials and negatives, etc., were to be sent to the personal custody of the Minister.
As the film was banned and forfeited, there was nothing incongruous about the transfer of the materials to Delhi being treated as an official and confidential matter and even if PW2 had told PW 4 that the film material should be dispatched "carefully and confidentially" that would not show any criminal intent on the part of A l.
In order to show that A 1 took a somewhat unusual interest in the dispatch of the negatives and other material of the film from Bombay to Delhi it is further the case of the prosecution that Tripathi who was Special Assistant to A 1 was sent expressly to receive the materials at New Delhi Railway station and make arrangements for their transport But Tripathi categorically stated that he never went to the Railway Station for the purpose of receiving the film material, etc.
On the other hand, PW2 states that on 9 11 1975 PW4, Khandpur informed him on telephone from Bombay that the film material was being sent from Bombay to Delhi by Western Express and would be reaching Delhi on the next day and that two officers, one of them being Kane, PW 5, were accompanying the material.
PW 2 adds that he then, rang up Ghose and asked him to get in touch with Tripathi for making the necessary arrangements for transport and delivery of the material.
The witness goes on to state that on the 10th November 1975, PW 39.
Ghose.
came to him and reported that the film material had arrived and had been brought in tempos arranged by A l.
Ghose, however, has not supported this witness on this aspect of the matter.
Reliance was.
576 therefore, placed on the evidence of PW 5, Kane to show that when he reached Delhi along with the film material, Tripathi was there to receive the same.
It is not disputed that Tripathi was not known to PW S, Kane, before the 10th and that by the time the witness saw him at the New Delhi Railway Station he had seen him only once in Bombay.
The witness doles state that his pointed attention was drawn to Tripathi because he had asked him to settle the payment of charges to the coolies and that but for this his attention would not have been drawn to Tripathi.
He, however, admits that he his statement before the Central Bureau of Investigation, he did not mention the fact that Tripathi had asked him to settle the matter of the payment of charges to the coolies.
Thus, the existence of the only circumstance on the basis of which the witness could have identified Tripathi becomes doubtful and in view of the categorical statement of Tripathi that he never went to New Delhi Railway Station on the 10th of November to receive the film, it is difficult to accept the evidence of PW 5 that Tripathi was the person present at the station.
The possibility that the witness committed some mistake in identifying cannot be ruled out.
Moreover, the identification of Tripathi by the witness for the first Lime in the court without being tested by a prior test identification parade was valueless.
Besides, the witness admits that in the note Ext.
PW 4/E 2 he did not mention Tripathi or any other person along with Ghose to have been present at the New Delhi Railway Station.
Thus, even on the question of the arrival of the material of the film at New Delhi no direct connection with A 1 has been established by the prosecution.
In time, it is not proved by the prosecution that Tripathi was present at the Railway Station to receive the film and hence it cannot be said that A l took an unusual interest in seeing that the film is properly brought from Bombay to Delhi and placed in his custody.
Coming back to the evidence of PW2, there is yet another circumstance which he proves and which merits some consideration.
According to the witness, in the special leave petition filed by PW 1, 12th March 1976 was fixed for screening the film.
The witness adds that he took instruction from A 1 as to what should be done when A l asked him to inform the Supreme Court through an affidavit that efforts had been made to trace the prints of the film at Bombay as also at Delhi but that there were no chances of their becoming available.
The witness says that he was also directed to mention in the affidavit that such misplacements had often occurred in the past, and that he passed on this information to the Secretary, Mr. Burney who suggested that the orders of the Minister should be carried out.
In consonance with the instruction, Ghose filed an affidavit before the Supreme Court on the 22nd March 1976 but the Hon 'ble Chief Justice emphasised the 577 importance of making the film available for viewing by the Judges.
The witness recorded a note Ext.
PW 2/A 17 to, bring the matter to the notice of the Minister.
Ultimately, however, as PW 1, Amrit Nahata, withdrew the petition nothing further happened.
It appears that while .
the petition was pending in the Supreme Court, contempt proceedings ,, were taken against some of the officers including PW 2 who also filed four affidavits, one of them on the 28th November 1977 and the other three on the 28th February 1978.
These affidavits are Ext.
PW 2/B 1 to B 4.
In these affidavits he wanted to prove that as the film had been mixed up with lot other films received in connection with Fifth International Film Festival, the material of the film Kissa Kursi Kaa was misplaced, and that is a stand which comes into direct conflict with the testimony of the witness in court in which the entire blame is shifted to A l but which again runs counter to are assertion made earlier by the witness in his own hand.
That assertion appears in the form of an amendment to a draft of a letter (Ext.
PW 2/DE) to be sent to Mr. V. P. Raman.
Additional Solicitor General and reads: in spite of efforts the film has not been found '.
The witness admits clearly that this statement was false to his knowledge.
A witness who could go to the extent of making intentionally false statement cannot be relied upon for the purpose of convicting the appellant.
On his own showing, he was fully collaborating with A 1 in a criminal design and was therefore, no better than an accomplice whose testimony cannot be accepted in any material particular in the absence.
Of corroboration from reliable sources.
Even Mr. Jethmalani, the erstwhile senior counsel for the prosecution conceded the correctness of this proposition.
On an appreciation of the evidence of PW 2 and other factors, discussed above, his evidence has not only not been corroborated but definitely contradicted by other witnesses, circumstances and documents.
PW 63, K. N. Prasad was the Additional Secretary hl the Ministry of Information & Broadcasting.
He stated that in March 1977, A. K. Verma, the then Joint Secretary wanted to know whether the Government had any inherent power to destroy property which had been seized or forfeited, and also disclosed that the enquiry was made in connection with the film 'Kissa Kursi Kaa '.
The witness further stated that after two or three days Verma and PW 39, Ghose came to his room and asked the same question.
The witness further goes on to state that he was informed by his P.A. that he was required to attend a meeting at the residence of the Minister (A l), that when he enters the office at the residence of A l, he found PW 62 Mr. Burney, Secretary to the Ministry of information &: Broadcasting, sitting there and that ML '.
Burney (PW 62) asked the witness what the legal 578 position was about the right of the Government to destroy forfeited property.
At that time, according to the witness, Tripathi, Mr. Burney and A l were present.
He, however, admits that A ] did not ask any particular question.
From the testimony of PW 63 the prosecution seeks to draw an inference that it was A 1 at whose instance Verma, Ghose and Burney had asked for the advice! of the former (PW 63). Now A. K. Verma has not been examined as a witness and his statement (seeking, the advice of PW (63) is not, therefore, admissible in evidence? while both Ghose and Burney have denied that any such conservation as has been deposed to by PW 63 took place between the latter and the witnesses in the presence af A 1.
In fact, a specific suggestion was put to Burney (PW 62) in the following terms: "Q.
When Shri Nahata asked for the return of the film material, did it happen that you discussed the matter regarding availability and return of the film material with Shri Shukla at his official residence and during that discussion Shri K. N. Prasad and Shri A. K. Verma had also come there and Shri V. section Tripathi, Special Asstt.
to the Minister was also present ?" His answer was an emphatic No. Besides, the story given out by the witness does not appear to be very plausible, for it does not stand to reason that A 1 would depute no less than three officers (Verma, Ghose and Burney), one after the other, to obtain advice of PW 63 when A 1 could have had no difficulty in obtaining the advice himself.
And then how was PW 63 selected as a Specialist in the concerned branch of law over the head of superior officers, even if it was considered hazardous to enlist the services of a competent lawyer ? We are, therefore unable to place reliance on the evidence of this witness on this point.
From a discussion of the circumstances mentioned above, we conclude that the prosecution has failed to prove that the film materials brought from Bombay to Delhi were placed in the personal custody of A 1 or that A 1 had them transferred to No. l, Safdarjung Road or to the Maruti Complex.
Another link in the chain of prosecution evidence (the existence of which seems to have been accepted by the learned Sessions Judge) was that two tempos belonging to the Maruti (Company were sent to the New Delhi Railway Station where the thirteen trunks which arrived by the Western Express were loaded therein and were taken to l, Safdarjung Road before being transported to Maruti Complex where they were unloaded? kept and later on.
destroyed.
It was also alleged by 579 the prosecution.
that a raid of the Maruti Complex carried out in 1977 A led to the recovery of the lid of a trunk, an empty can which earlier contained part of the film material and a gunny bag to the inside of which were found sticking scraps of paper.
The investigators also claimed that a few miles away from the Maruti Complex some round cans were recovered from a nallah.
The learned counsel for the defence submitted that the allegations about the trunks being taken to Maruti Complex and the recoveries being made were false and addressed to the court lengthy arguments in this behalf.
It is, however, not necessary for us to go into these details at this stage because assuming for the purpose or argument that the trunks were brought to the Maruti Complex, and that the film material was destroyed unless A l or A 2 were shown to be connected with the transport or destruction of the material, the charge against the appellants cannot be held to be proved.
(3) The burning of the film `Kissa Kursi Kaa ' in, November 1975, at Maruti Complex at the orders/instructions of A 2 In support of this part of the prosecution story, reliance was placed mainly on the testimony of Khedkar (PW 3) who is the approver.
The effort of the prosecution was to establish that on instructions given by A 2 the film material was burnt inside the Maruti Complex on two consecutive nights and that the fact was reported to A 2 an each of the two following mornings.
The approver was the Security officer in the Maruti Limited at the relevant time and the assertions made by him in this behalf may be split, up as follows: (a) In the middle of November 1975, A 2 sent for the approver and told him that some boxes containing films were lying in the stores, that the films were to be destroyed when the workers were away and that the approver would get the keys of the locks on the boxes on the next day.
(b) On the next day one of the security guards who used to accompany A 2 handed over a sealed packet of paper wrapped in cloth to the approver.
On the same day the approver directed his assistant named Kanwar Singh Yadav, PW 32 to meet the approver (in the Maruti Complex) at 9.00 p.m. along with watchman .
Om Prakash, PW 31.
Kanwar Singh Yadav, PW 32 met the approver at 9.30 p.m.
They reached the factory gate where watchman om Prakash PW 31 was waiting for them.
The approver signed the key register and obtained the key of the General Store.
The party of three opened the store and 580 found lying therein the thirteen boxes containing the film material.
The boxes were opened with the keys which were taken out of the sealed packet mentioned earlier.
Each box was found to contain 10 or 12 cans having film spools inside them.
Each can bore a label with the legend 'Kissa Kursi Kaa '.
The first lot of the films was removed to a nearby pit and was burnt there, the operation lasting from 10.30 p.m. to 2.30 p.m. watchman Om Parkash PW 31 however left the place at about 11.00 p.m. because he felt giddy.
(c) Next morning the approver reported to A 2 that the work had been carried out in part only and that it would be completed on the night following, which was done from 10.00 p.m. to, 2.00 a.m. (d) Next morning the approver again made a report to A 2 telling him that the job had been completed.
Learned counsel for the defence contended that the stand taken by the approver could not be accepted at its, face value and had to be rejected lock stock and barrel.
On a thorough consideration of the evidence we find that the contention well based as we shall presently show.
The film material, according to the case of the prosecution, is said to have reached Maruti Complex on the 10th of November 1975.
After the 23rd November, 1975, Khedkar PW 3, on his showing, went away on leave.
The period during which the film is said to have been burnt thus lies between the 10th, and the 23rd of November 1975.
Further more Khedkar, PW 3 has firmly asserted that on the first of the two nights on which the burning operations were carried out, watchman Om Prakash, PW 31 was on duty from 2.00 p.m. to 10.00 p.m.
He was examined at length in relation to duty rosters P 22 and PW 32/2 which were admittedly prepared by him.
Duty roster exhibit P 22 covers the entire month of November 1975, and according to the entries appearing therein watchman Om Prakash, PW 31 was to be on duty during the whole of that month in the third shift only, i.e., daily from 10.00 p.m. to 6.00 a.m.
The approver however explained that the roster could be changed from time to time according to the exigencies of the situation.
He averred that on the 15th of November 1975, which was a Saturday and therefore an off day for watchman Om Prakash, PW 31, the latter took over duty from 2.00 p.m. to 10.00 p.m. as a substitute for watchman Tarachand.
A similar arrangement was made on the 18th of November 1975, when watchman Om Prakash, 581 PW 31 changed places with watchman Ramdular and went over from A the 3rd to the 2nd shift (2.00 p.m. to 10.00 p.m.).
As it is, the 15th and the 18th of November 1975, were the only two days in the month on which watchman Om Prakash, PW 31 was on duty during the second shift as a special arrangement.
For the rest of the days during the month he was admittedly never on duty in that shift.
The period during which the film was destroyed is thus further narrowed B down so that the first operation.
Of burning could have taken place on the night of the 15th of November or on that of the 18th of November 1975, and on no other date.
Here we may refer to another aspect of the matter.
Evidence has been produced to show that A 2 left Delhi by air at 7.50 a.m.
On the 17th of November 1975 for Hyderabad, and arrived back at Delhi at 8.30 p.m. the same day.
He again took off at 6.40 a.m.
On the 19th of November 1975, for Sikkim and returned to Delhi not earlier than 11.10 a.m.
On the 23rd of November 1975.
On both occasions he travelled as a member of the party of the then Prime Minister, his own mother, namely, Shrimati Indira Gandhi.
The evidence of Dr. K. P. Mathur, DW 3, is categorical in this behalf and is supported by the passenger manifests (Ext.
DW 3/A and DW 5/A) prepared in relation to the journeys which contain the name of A 2, and other documents which need not be mentioned here.
We regard his testimony as conclusive as was done not only by the learned Sessions Judge but also by the Special Public Prosecutor who made a statement at the trial that testimony be accepted by the prosecution in toto.
In this view of the matter the prosecution has to prove that a period of four days in between the 14th and the 18th of November 1975, was such as A 2 was available in Delhi during day time on the first, third and fourth of such days.
Now, as pointed out already, the burning could have taken place only on the 15th or the 18th of November 1975, if the approver and the duty rosters prepared by him are to be believed.
The 18th of November 1975, has to be excluded for the reason that on the two days following A 2 had to be shown to have been in Delhi (for receiving the report about the destruction of the material from the approver) which he definitely was not.
The 15th of November 1975, as the first night of the burning operation also does not click with the prosecution case because, although the report about it could have been made to A 2 on the next morning (inspite of the fact that it was a Sunday and therefore a closed day for the factory), A 2 was not in Delhi or anywhere near it throughout the 17th so that the story of the report made to him by the approver about the second part of the burning operations loses 582 weight.
No other dates being in point, the story propounded by the approver is negatived by reference to unimpeachable documentary and circumstantial evidence, although it may be further noted that neither Kanwar Singh Yadav, PW 32 nor watchman Om Prakash, PW 31 supports the approver 's version and each one of them was declared hostile to the prosecution.
The recoveries said to have been made during investigation have also not impressed us.
As stated earlier the incriminating articles said to have been seized are a lid of a trunk, an empty can, a gunny bag all from inside the Maruti Complex and a few cans from inside a nala lying a few miles away.
These recoveries are sought to be connected with the destruction of the film on the basis of the following averments forming part of the testimony of the approver: "It was after the elections held in March 1977, that Sanjay Gandhi who was then Director met me in the factory hall.
Kanwar Singh Yadav was also there.
Vijay Sharma, Bus Body Manager, was called there.
Sanjay Gandhi asked us to collect all the damaged trunks with the contractors and to deposit them in Bus Body Store.
We could collect 12 out of 13 trunks mentioned above along with four or five other big trunks.
These were deposited in Bus Body Store.
Later on I found them shifted to Press shop store.
A couple of days thereafter, Kanwar Singh Yadav, Sanjay Gandhi and I went inside the General Store.
We walked down to Bus Body Store.
There Sanjay Gandhi asked Panna Lal, Bus Body Supervisor and in charge Bus Body Store, to collect all the damaged locks available with them.
Panna Lal passed on the order to Om Prakash who was Bus Body Clerk Incharge Stores.
About 25 damaged locks were collected.
These is included Harrison, Tiger and Godrej Locks.
Godrej locks were 4 or 5 .
Sanjay Gandhi asked me to get all those collected locks melted in a foundry and I got them melted.
Ram Lakhan was Incharge of the foundry and I handed over the collected locks to him.
Thereafter, scrapping of the trunks and their removal was performed by my Asstt.
Kanwar Singh Yadav and he told me about that.
Kanwar Singh Yadav told me that Sanjay Gandhi had asked him to scrap the trunks and cans and to dispose them off.
He told me that he cut the trunks into pieces and threw them into the iron scraps which were sold to different contractors.
As regards the cans, he told me that he had damaged the cans and thrown them at different places on Rajasthan Highway and Rajasthan Bye 583 pass.
He told me that the trunks had been cut into pieces and cans had been damaged in the Press Shop." This story is inherently improbable.
The thirteen trunks which admittedly had no marks of identification on them and were of the ordinary type available in any market are said to have been shredded and the locks which again are available in plenty everywhere are alleged to have been melted in the foundry but, strangely enough, the cans which had on them labels carrying the legend 'Kissa Kursi Kaa ' were subjected to a much milder treatment and were merely pressed and then thrown away at various places on the Rajasthan Highway and Rajasthan Bypass to which Kanwar Singh Yadav, PW 32 had to make journeys off and on.
It is not disputed that if the cans were to be shredded or melted the operation would not have presented any difficulty whatsoever in view of the facilities available at the Maruti factory.
And, if that be so, surely any person who wanted to obliterate evidence of the commission of a serious offence would see to it that the material of the cans was so transformed as to be impossible of identification.
There is no reason why all of them should not have been melted into lumps, or in any case shredded beyond recognition.
And we also do not see how just one can would be left intact when so much care was bestowed on operations obliteration.
In fact, it may have been much easier for the cans to be shredded or melted than for them to be first pressed and then transported to far off places and thrown away there.
In this view of the matter we need not pursue this part of the case any further.
Thus, on a complete and careful examination of the circumstances and the evidence, mentioned above, even taking the sub stratum of the prosecution case at its face value, the prosecution has not been able to prove either that there was any existence of any conspiracy between A 1 and A 2 to destroy the film 'Kissa Kursi Kaa ' by burning it or to commit any other offence in respect of the film.
There is no evidence to show that there was any meeting of minds between A l and A 2.
We have also found that even on the first two parts of the prosecution case, the allegation of the prosecution that the positive prints were removed at the instance or to the knowledge of A l or that the negatives and other materials of the film were sent for by A 1 and kept in his personal custody has not been proved.
The mere fact that A 1 decided to ban the film and refused certification for public exhibition and passed orders for seizure of the film and its transfer to the custody of the Ministry of Information & Broadcasting does not disclose any offence.
We have already shown that the decision to ban the film was not taken by A 1 secretely or clandestinely but after a full fledged 584 discussion in the Coordination Committee meeting and it is proved that such meetings are usually attended by senior officers of various Ministries, as deposed to by K. N. Prasad, PW 63.
Further, that part of the case which relates to the burning of film material rests solely on the uncorroborated testimony of the approver and is negatived in so far as the role therein of A l is concerned.
We may mention here that a lot of evidence has been produced by the prosecution to show: (a) that the positive print of the film found its way into the luggage compartment of the car in which A 1 then travelled to the Prime Minister 's house where the print was unloaded by someone in the absence of A 1; and (b) that the negatives and other material relating to the film were taken in a tempo or two to the Prime Minister 's residence and from there to the Maruti Complex where they were stored before their destruction.
We have considered it purposeless to go into these factors for the reasons that the connection of A 1 or A 2 therewith remains unproved as discussed above.
Had these factors provided circumstantial evidence oh the basis of which alone the charge against either A 1 or A 2 could be held established it would have been necessary for the court to sift the evidence produced in support thereof.
But that is definitely not the case, for, if either or both of the factors are proved, the inference of guilt of either A l or A 2 does not necessarily follow.
For circumstantial evidence to furnish evidence of guilt it has to be such as it cannot be explained on any other reasonable hypothesis except the guilt of the accused which is not the case here because appellants A l and A 2 could not be said to be the only persons interested in the destruction of the film if it was as obnoxious to the then Prime Minister or as critical of the functioning of the then Union Government as the prosecution would have us believe.
The film and all the material relating to it no doubt appear to have vanished into thin air but then neither A 1 nor A 2 can be held responsible therefor, in the absence of proof in that behalf proof which would exclude all reasonable doubt.
The prosecution having thus failed to prove the case against the appellants, their appeals are allowed, the convictions recorded against and the sentences imposed on the appellants are set aside and they are acquitted of all the charges framed against them.
Both the appel 585 lants who are on bail shall now be discharged from their bail bonds.
In view of the acquittal of appellant No 1, Shukla in Criminal appeal No. 494 of 1979 and appellant No. 2, Sanjay Gandhi in Criminal appeal No. 493 of 1979, Criminal appeal No. 492 of 1979, filed by the State is dismissed.
In view of the fact that we have made no comments on the conduct of the investigation or on Mr. N. K. Singh, no order need be passed on the application filed by him.
S.R. Cvl.
493 & 494/7g allowed.
| IN-Abs | Sri Amrit Nahata PW 1 was a member of Parliament and had produced a film titled "Kissa Kursi Ka" under the banner of Dhwani Prakash.
The film according to the prosecution was a grotesque satire containing a scathing criticism of the functioning of the Central Government and was open to serious objections which were taken even by the Central Board of Film Censors.
After the film was ready for release, PW 1, Amrit Nahata, applied for certification of the film on the 19th of April 1975 before the Board.
The film was viewed on April 24, 1975 by an Examining Committee of the Board and while three members were of the opinion that certificate for exhibition, with drastic cuts, should be given, another member and Mr. N. section Thapa, Chairman, disagreed with the opinion of their colleagues and accordingly referred the matter to the Revising Committee.
The Revising Committee after viewing the film agreed by a majority of 6 :1 for certification of the film, the dissent having been voiced by Mr. Thapa, the Chairman and accordingly under Rule 25(ii) of the Cinematograph (Censorship) Rules, 1958, a reference was made to the Central Government on 8 5 1975.
In this connection, a letter was addressed to PW 6, Mr. section M. Murshed, who was at the relevant period Director in the Ministry of Information & Broadcasting, Incharge of film and T.V. Projects and was appointed, Joint Secretary on 1st of May 1975.
Before making his comments PW 6 saw the film some time in the middle of May, 1975.
Meanwhile, PW 1, Amrit Nahata, was directed to deposit the positive print of the film comprising 14 reels of 35 mm with the Film Division Auditorium, situate at 1, Mahadev Road, New Delhi.
In pursuance of these directions PW 1 deposited the positive print and an entry thereof (Ext.
17A) was made by the Librarian cum Projectionist of the Auditorium.
PW 17, K. P. Sreedharam, who was a Technical Officer incharge also inspected the reels and found them in order.
Although Murshed, PW 6, after seeing the film agreed with the opinion of the Chairman of the Board that the film may be open to objection on the ground that it was full of sarcasm and contained criticism of the political functioning of the Governmental machinery yet he was personally of the opinion that certification for exhibition should not be refused.
PW 6 accordingly recorded a note and submitted it to Mr. A. J. Kidwai, the then Secretary, Ministry of Information and Broadcasting.
The matter was then examined by Mr. I. K. Gujral, the then Minister of Information and Broadcasting but 501 no final decision was taken.
Meanwhile PW 1, Amrit Nahata, filed a writ petition (exhibit PW 1/D) in the Supreme Court.
On the 23rd of the June 1975, a notice was issued by the Ministry of Information and Broadcasting to PW 1, Amrit Nahata, to show cause why certification to the film be not refused.
The notice was made returnable by 9 7 75.
Thus the Ministry of Information and Broadcasting had taken a tentative decision to refuse certification to the film because of its objectionable and offensive nature.
Emergency was proclaimed on the night of between 25th and 26th of June, 1975 and soon thereafter A 1 took charge as the Union Minister of Information and Broadcasting and he was of the opinion that the film should be banned.
On July 5, 1975, in pursuance of the decision taken by the Central Government, the Coordination Committee directed seizure of the film and that its negatives, positives and all other materials relating to it be taken in the custody of the Central Government vide exhibit PW 6/D.
On July 10, 1975 A 1 directed that the film be banned for screening under the Defence of India Rules, vide Ext.
PW 6/E 4.
Finally, on the 11th of July 1975 PW 6 Murshed, passed an order that no certification was to be given to the film for public exhibition which was followed by a letter dated July 14, 1975, forfeiting the film to the Government.
In pursuance of the decision taken by the Central Government PW 39, section Ghosh Deputy Secretary, incharge of the films and T. V. Division wrote a letter to the Chief Secretary Government of Maharashtra for seizure of all the positives and negatives of the film as also other related materials.
In pursuance of this order, the Bombay police seized the entire film on 1 8 1975 and deposited in the godown of the Board.
As, however, a final order had been passed by the Government banning the film.
PW, 1, Amrit Nahata filed a petition for special leave in the Supreme Court on 6 9 1975.
This petition was heard on 29 10 75 and the Court directed the Government to screen the film on 17 11 75 in the Auditorium for being shown to the Judges constituting the Bench.
In pursuance of the order of the Court, intimation was sent to the Ministry concerned and PW 62, Mr. section M. H. Burney who was then Secretary Ministry of Information and Broadcasting directed that immediate action be taken to implement the orders of the Supreme Court and that arrangements should be made to book the Auditorium for 17 11 75.
By a letter dated 5 11 75 (Ext.
PW 2/A2) the Supreme Court was also informed regarding the steps taken.
Sometime thereafter PW 2, L. Dayal took over as Joint Secretary (Films Division) in place of Mr. Murshed.
The film, however, was not shown to the Judges of the Supreme Court on the ground that the films were not traceable.
After the general elections of March 1977, the new Government directed the Central Bureau of Investigation to investigate into the matter of disappearance of the films.
The C.B.I. accordingly investigated the matter and found that A 1, V. C. Shukla and A 2 Sanjay Gandhi conspired together and ultimately burnt them in Maruti Complex.
Therefore C.B.I. filed charge sheets against V. C. Shukla A 1 and Sanjay Gandhi A 2 under several provisions of Penal Code.
The prosecution examined several witnesses to prove criminal conspiracy of A 1 and A 2 more particularly under three stages, namely, (i) the deposit of the positive print in the Auditorium and its alleged transfer to the personal custody of A 1; (ii) the arrival of thirteen trunks containing negatives and other material related to the film at New Delhi from Bombay in pursuance of the orders of A 1 and their transfer to 1, Safdarjung Road, then to the Maruti Complex; and (iii) the actual orders alleged to have been given 502 by A 2 for burning the film in the premises of Maruti Complex which operation according to the prosecution was carried out by the approver PW 3, Khedkar and other witnesses between the 10th and 24th of November 1975.
The Sessions Judge, Delhi convicted V. C. Shukla (A 1) appellant in Criminal Appeal No. 494/79 under section 120B read with Ss. 409, 435, 411, 414 and 201 Indian Penal Code and also under section 409 Indian Penal Code in respect of the positive print and negative and other material of the film "Kissa Kursi Ka ' under section 411 read with section 109 I.P.C.; under section 414 read with section 109 I.P.C.; and under section 201 read with section 109 I.P.C.
The appellant, Sanjay Gandhi (A 1) in Criminal Appeal No. 493/79 was convicted by the Sessions Judge, Delhi under section 120B read with Ss. 409, 435, 411, 414 and 201, Penal Code and further convicted under Ss. 435, 411, 414 and 201 Penal Code in regard to the negative and other materials of the film, as also under section 409 read with section 109 of the Penal Code.
Accused No. 1 was sentenced under section 120B read with Ss. 409, 435, 411, 414 and 201 to two years rigorous imprisonment; under section 409 regarding the negative and other materials to two years rigorous imprisonment and a fine of Rs. 20,000 and in default further 6 months rigorous imprisonment, under section 409 regarding the positive print of the film to two years rigorous imprisonment and a fine of Rs 5000 and in case of default further rigorous imprisonment for three months; under section 411 read with section 109 to rigorous imprisonment for one year; under section 414 read with section 109 to rigorous imprisonment for one year; under section 201 read with section 109 to rigorous imprisonment for one year; under section 435 read with section 109 to rigorous imprisonment for one year and six months.
Accused No. 2 was sentenced under section 120 B read with sections 409, 435, 411, 414 and 201 to rigorous imprisonment for two years; under section 435 to rigorous imprisonment for one year and six months and a fine of Rs. 10,000 and in case of default further rigorous imprisonment for four months; under section 411 to rigorous imprisonment for one year; under section 414 to rigorous imprisonment for one year; under section 201 in regard to the negative, etc., to rigorous imprisonment for one year; under section 201 in regard to 13 trunks, etc., to rigorous imprisonment for one year and under section 409 read with section 109 to rigorous imprisonment for two years.
The aforesaid sentences of imprisonment were ordered to run concurrently in the case of both the accused.
On being convicted by the Sessions Judge, Delhi, both the accused filed appeals before the Delhi High Court against their convictions and sentences, and were released on bail pending the hearing of the appeals.
Meanwhile, the Special Courts Act of 1979 came into force and by virtue of a declaration made under section 7 of the said Act, the appeals stood transferred to the Supreme Court.
The appellants raised the following preliminary objections as to the constitutional validity of Sections 5, 7, 9 and 11 of the Act, apart from the plea that their conviction and sentence were not based on any evidence, legal or otherwise.
A. Even having regard to the principles laid down the Supreme Court in the Reference case, the Act fails to pass the tests laid down for a valid classifica 503 tion under article 14.
The decision given in the Reference case upheld the Bill and rejected the challenge that the Bill violated article 14 mainly on the ground that the Bill sought to put a certain class of persons, namely, persons holding high public or political offices who had committed offences only during the period of Emergency.
In other words, the constitutionality of the Bill was upheld on the ground that the legislation was confined to select offences committed by a particular class of persons during the Emergency period.
The impugned Act transgressed the limits imposed by the judgment in the Reference case by bringing within its fold offences committed prior and subsequent to the Emergency and thus was in direct conflict with the opinion of this Court rendered in the Reference case.
In other words this Court struck down that part of the Bill which related to the period between February and June 1975 on the ground that persons having committed offences during that period could not be clubbed with those who had committed offences during the period of Emergency.
Thus the Act, by clubbing together persons accused of offences committed during the Emergency with those alleged to be guilty of crimes pertaining to periods before and after the Emergency (i.e. by dealing with offences committed at any point of time whatsoever), has violated the guarantee under article 14 and the classification made by the Act is in direct contravention of the opinion given by this Court in the Reference Case.
B. Even if the classification was valid, as the procedure prescribed by the Act is extremely harsh and prejudicial to the accused, Articles 14 and 21 are clearly violated.
(a) Section 7 deprives a valuable right of appeal; (b) Section 11(1) takes away the valuable right of revision against interlocutory orders; (c) Section 9(3) of the Act prescribes the procedure for the trial of Warrant cases before the Magistrate in Sections 238 to 243 and 248 Crl.
P.C., while treating the special Court as Court of Sessions.
C. Assuming the classification of persons holding high public or political offices to be justified, it suffers from a serious infirmity in that neither the terms "high public or political office" has been defined nor have the offences been delivered or defined so as to make the prosecution of such offenders a practical reality.
Even the nature and character of the offences have not been defined in the Act which introduces an element of vagueness in the classification.
E. Parliament was not competent to pass a special Act and create Special Courts for a particular set of offenders.
The Act seeks to change the situs of the Court and virtually abrogates section 181 of the Code of Criminal Procedure.
The Act creates an invidious distinction in as much as persons holding high public or political offices would have the benefit of trial by such an experienced officer as a sitting judge of a High Court, while the appellants have been deprived of that right and were tried by a Special Judge who was only a Sessions Judge.
504 H. Section 5 of the Act suffers from several constitutional and legal infirmities, namely, (a) Section 5 (1) suffers from the vice of excessive delegation of powers so as to violate Article 14 in as much as the discretion conferred on the Central Government is absolute, naked and arbitrary and is clearly discriminatory as it is open to the Central Government to pick and choose persons to make declarations in respect of them while excluding others.
(b) The issuance of a declaration under section 5(1) of the Act depends purely on the subjective satisfaction of the Central Government and under sub section (2) of section 5 such a declaration cannot be called into question by any court so that there would be an element of inherent bias or malice in an order which the Central Government may pass, for prosecuting persons who are political opponents and that the section is therefore invalid.
(c) As the Central Government in a democracy consists of the political party which has the majority in Parliament, declarations under section 5(1) of the Act could be used as an engine of oppression against members of parties who are opposed to the ideologies of the ruling party.
(d) the provisions about declaration contained in Section 5(1) are violative of the principle of natural justice in as much as they do not provide for any bearing being given to the accused before a declaration is made.
(e) in an instant case, the declaration dated June 22, 1979 made under section 5(1) of the Act per se shows that it had not resulted from any real application of the mind by the Central Government.
Once the prosecution of the appellants had culminated in a conviction and an appeal therefrom there was no question of the existence of any "prima facie case" and that the use of such an expression could be intelligible only if the accused were facing criminal proceedings which had not culminated in a conviction; and (f) the declaration made under section 5 of the Act is non est because it has not been laid before each House of Parliament as required by section 13 of the Act.
The appellant not having held any high public or political office has been drawn into this case by virtue of a declaration and has therefore been singled out for a discriminatory treatment.
K. Section 5(1) of the Act has no application to the facts of the present case because under section 5(1) a declaration has to be made on the basis of the source indicated in the section, namely, inquiries conducted under the Commissions of Inquiry Act or investigations which become otiose and would have relevance only if the appellant had not been convicted.
L. Conviction being a finding of guilt cannot be said to fall within the situation contemplated by section 5(1) of the Act.
Section 6 is an extension of the scheme contained in section 5, the former does not overrule the entire code of Criminal Procedure but in fact takes in only those cases which are pending at the trial stage when the declaration is made.
Once the case ends in a conviction, section 5 spends itself out and there is no room for the application of section 5.
M. Section 7 would not apply to this case because its language embraces only those appeals which arise out of a prosecution which itself is pending at the time when a declaration is made.
505 N.
By providing in section 7 for an automatic transfer of appeals from the High Court to the Supreme Court, the Legislature has exercised a judicial power which is vested in the Supreme Court alone under section 406 of the Code of Criminal Procedure and that the section is invalid as it conflicts with section 406 Crl.
Allowing the appeals, the Court ^ HELD: (Regarding Constitutional validity of the Act) 1.
In a diverse society and a large democracy such as ours where the expanding needs of the nation change with the temper of the times, it is extremely difficult for any legislature to make laws applicable to all persons alike.
Some amount of classification is, therefore, necessary to administer various spheres of the activities of the State.
[522 D E] 2.
It is well settled that in applying article 14 mathematical precision or nicety or perfect equanimity are not required.
Similarity rather than identity of treatment is enough.
The courts should not make a doctrinaire approach in construing article 14 so as to destroy or frustrate any beneficial legislation.
What article 14 prohibits is hostile discrimination and not reasonable classification for the purpose of legislation.
Furthermore, the Legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, article 14 would not be attracted.
That is why this Court has laid down that presumption is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality.
It has also been held that in order to sustain the presumption of constitutionality, the Court is entitled to take into consideration matters of common knowledge, common report, the history of the times and all other facts which may be existing at the time of the legislation.
Similarly, it cannot be presumed that the administration of a particular law would be done with an "evil eye and an unequal hand".
Finally, any person invoking article 14 of the Constitution must show that there has been discrimination against a person who is similarly situate or equally circumstanced.
[522 E H, 523 A] State of U.P. vs Deoman Upadhyaya, ; , followed.
The classical tests laid down for the application of article 14 are the following: 1.
The classification must be founded on an intelligible differentia which distinguishes persons who are placed in a group from others who are left out of the group.
Such differentiation must have a rational relation to the object sought to be achieved by the Act.
There must be a nexus between the differentiation which is the basis of the classification and the object of the Act.
[523 D F] 4.
It cannot be gainsaid that this Court while dealing with the Reference case was not at all concerned with the provisions of the Act which is of much 506 wider application than the Bill considered by the Court in the Reference.
It is no doubt true that the Bill contained provisions for punishing only those offenders who were accused of offences committed during a particular period, namely, the period of Emergency.
It is also true that the period of Emergency was an extraordinary one in the history of our country and its features have been spelt out in the preamble of the Bill as also in the judgment given by this Court in the aforesaid case.
But that by itself does not debar Parliament from passing a permanent Act to deal with a specified class of persons who occupy high public or political offices (which are offices of trust) and misuse or abuse them.
It cannot be doubted that for the establishment and continuance of a Parliamentary democracy and to secure efficiency and purity of administration it is necessary that when such persons commit serious abuse of power and are guilty of a breach of the trust reposed in them, they would form a special class of offenders.
[525 F H, 526 A] 5.
That Purity of life is a desired goal at all times itself is a sufficient justification for the classification made by the Act which widens its scope to include offenders of a particular type, whether before, during or after the Emergency.
In fact, such persons would undoubtedly form a special class of offenders which would justify the legislative measure singling them out for an expeditious trial.
To hold otherwise would be to say that persons bearing the aforesaid attributes would be immune from prosecution under any Special Act.
Passing of such a Special Act is within the Legislative competence of Parliament.
[526 D E, 527 G H, 528 B] 6.
The Act does not suffer from any infirmity and the circumstance that it applies to offences committed at any time by a particular set of persons possessing special characteristics does not render it unconstitutional; for, when it puts into a class a particular set of persons having special characteristics which distinguish them from others who are left out of that class and who are to be tried under the ordinary law, the classification is eminently reasonable.
The classification made has a reasonable nexus with the object sought to be achieved.
Separate grouping of holders of high offices for purposes of expeditious criminal action to be taken by superior courts is a reasonable and valid classification because it enhances confidence in the rule of law, strengthens the democratic system and ensures purity of public life and political conduct.
[528 E G, 529 G H, 530 A] 7.
The opinion of the Supreme Court in Re.
Special Act, in no way amounted to disapproval or condemnation of a permanent law in future bringing within its scope all holders of high public or political office.
[530 G H] The Bill was challenged before the Supreme Court on the touch stone of article 14 on several groups.
In the first place, it was argued that no rational basis for separately classifying Emergency offenders existed.
The second ground of challenge was that assuming that there was a valid classification, the same was bad because it suffered from the vice of under inclusion inasmuch as holders of high public or political offices were left out.
This Court, however, repelled the argument of rational basis on the ground that the Emergency period, because of its special characteristics, afforded adequate basis for separate classification of Emergency offences.
The Court was not at all at that time concerned expressly with the question as to whether classification of high public or political dignitaries without reference to any period during which they were alleged to have committed offences would be violative of article 14 of the Constitution.
On 507 the other hand, this Court made clear observations that an Act providing for such a classification would be not only valid but also highly welcome.
It is true that the provision regarding a particular period before the Emergency was then struck down but that was so because the Bill was confined to offences committed only during the period of Emergency and the inclusion of another period meant bad classification for the reason that the period last mentioned could not be distinguished from either pre or post Emergency periods on any reasonable basis.
This view of the Court could not be interpreted as laying down a law of universal application that no Special Act on a permanent basis classifying offenders possessing particular characteristics or attributes and providing for their prosecution under a special procedure would be invalid or violative of article 14.
[530 A G] 8.
The expression "high public or political offices" is of well known significance and bears a clear connotation which admits of no vagueness or ambiguity.
Persons holding high public or political offices mean persons holding top positions wielding large powers.
[531 C D, F] Political office is an office which forms part of a Political Department of the Government or the Political Executive.
This, therefore, clearly includes Cabinet Ministers, Ministers, Deputy Ministers and Parliamentary Secretaries who are running the Department formulating policies and are responsible to the Parliament.
The word 'high ' is indication of a top position and enabling the holders thereof to take major policy decisions.
Thus, the term 'high public or political office ' used in the Act contemplates only a special class of officers or politicians who may be categorised as follows: 1.
Officials wielding extraordinary powers entitling them to take major policy decisions and holding positions of trust and answerable and accountable for their wrongs.
Persons responsible for giving to the State a clean, stable and honest administration; 3.
Persons occupying a very elevated status in whose hands lies the destiny of the nation.
[534 C E] The rationale behind the classification of persons possessing the aforesaid characteristics is that they wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach of trust, may mar or adversely mould the future of the country and tarnish its image.
It cannot be said, therefore, with any conviction that persons who possess special attributes could be equated with ordinary criminals who have neither the power nor the resources to commit offences of the type described above.
The term 'persons holding high public or political offices ' is self explanatory and admits of no difficulty and that mere absence of definition of the expression would not vitiate the classification made by the Act.
Such persons are in a position to take major decisions regarding social, economic, financial aspects of the life of the community and other far reaching decisions on the home front as also regarding external affairs and if their actions are tainted by breach of trust, corruption or other extraneous consideration, they would damage the interests of the country.
It is, therefore, not only proper but essential to bring such offenders to book at the earliest possible opportunity.
[534 F H, 535 A] 508 9.
Clause 4 of the preamble to the Special Courts Act clearly indicates the nature of the offences that would be tried under the Act.
[535 B] The words 'power being a Trust ' clearly indicate that any act which amounts to a breach of the trust or of the powers conferred on the person concerned would be an offence triable under the Act.
Clause (4) is wide enough to include any offence committed by holders of high public or political offices which amounts to breach of trust or for which they are accountable in law and does not leave any room for doubt.
Section 5 which confers powers on the Central Government to make a declaration clearly refers to the guidelines laid down in the preamble and no Central Government would ever think of prosecuting holders of high public or political offices for petty offences.
[535 D G] 10.
Sections 7 and 11 of the Special Courts Act are within the legislative competence of the Parliament.
That is to say Parliament has the competence to provide for the creation of Special Courts and to confer jurisdiction on the Supreme Court by providing that an appeal shall lie as of right from any judgment or order of Special Court to the Supreme Court both on fact and on law.
[536 A D] In re.
Special Courts Bill ; applied.
The Act neither seeks to change the situs of the Court nor virtually abrogates Section 181 of the Code of Criminal Procedure.
[536 E] In re.
Special Court Bill, [1979] 3 SCR; followed.
The question of the appellants being tried by the Special Judge appointed under the Special Courts Act could not arise because the said Special Court did not exist at all even when the trial of the appellant was concluded.
The First Information report against the appellants was lodged on 13th April 1977 and the chargesheet was submitted before the Special Judge who convicted the appellants by his order dated February 27, 1979.
The Act, however, came into force on May 16, 1979, that is to say, three months after the conviction and about two months after the appellants had filed their appeals before the High Court.
The existence of such fortuitous circumstances cannot attract Article 14.
[536 G H, 537 A B] Khandige Sham Bhatt and Ors.
vs The Agricultural Income Tax Officer, ; ; Dantuluri Ram Raju and Ors.
vs State of Andhra Pradesh and Anr.
, ; applied.
Section 5(1) does not suffer from the vice of excessive delegation of powers so as to violate Article 14.
No unguided or uncanalised power has been conferred on the Central Government.
A basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence.
Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble.
The various clauses of the preamble lay down clear guidelines and provide sufficient safe guards against any abuse of power.
Thirdly, clause (4) of the preamble clearly lays down that the power under section 5 is exercisable only after the Commission of an offence by the holder of a high public or political office has been disclosed as a result of an inquiry conducted under the Commissions of Inquiry Act or of an investigation conducted by the Government through its agencies.
It is well settled that discretionary power is not the same thing as power to discriminate nor 509 can the constitutional validity of a law be tested on the assumption that where a discretionary power is conferred on a high authority, the same may or would be exercised in a discriminatory manner.
[538 E H, 539 A] The power conferred on the Central Government is controlled by the guidelines contained in the preamble which by virtue of the provisions of section 5(1) becomes a part of that section.
As the power has been conferred on the Central Government which is to make a declaration in accordance with the conditions laid down in section 5(1) and, therefore, in conformity with the guidelines mentioned in the preamble, the attack based on discrimination is unfounded.
[541 B C] Dr. N. B. Khare vs The State of Delhi, ; , Kathi Raning Rawat vs The State of Saurashtra, ; ; Matajog Dubey vs H. C. Bhari, ; In Re.
The Kerala Education Bill, 1957, [1959] SCR 995 Jyoti Parshad vs The Administrator for the Union Territory of Delhi, ; ; Moti Ram Dekha etc.
vs General Manager, N.E.F., Railways, Maligaon, Pandu etc.
; ; V. C. Shukla vs The State through C.B.I., ; followed.
The power of the Central Government to issue a declaration is a statutory power circumscribed by certain conditions.
Furthermore, as the power is vested in a very high authority, it cannot be assumed that it is likely to be abused.
On the other hand, where the power is conferred on such a high authority as the Central Government, the presumption will be that the power will be exercised in a bona fide manner and according to law.
[541 D F] Chinta Lingam and Ors.
vs Government of India and Ors.
, ; ; Budhan Chaudhary and Ors.
vs The State of Bihar, ; ; referred to.
The contention that declarations under section 5(1) of the Act could be used as an engine of oppression against members of parties who are opposed to the ideologies of the ruling party is one arising out of fear and mistrust which, if accepted would invalidate practically all laws of the land; for, then even a prosecution under the ordinary law may be considered as politically motivated, which is absurd.
Furthermore, prejudice, malice or taint is not a matter for presumption in the absence of evidence supporting it.
It is well settled that burden lies on the parties alleging bias or malice to prove its existence, and if malice or bias is proved in a particular case, the courts would strike down the act vitiated by it, in exercise of its powers under Articles 226, 227 or 136.
[542 A D] In Re. Special Courts Bill, referred to.
At the stage when the declaration is sought to be made there is no list pending nor has any prosecution been launched against the accused.
Section 5 deals only with the decision taken by the Central Government to prosecute and until that decision is notified, the prosecution does not start, and the question of an accused being heard at that stage, therefore, does not arise at all.
[542 F G] Cozons vs North Devon Hospital Management Committee and Anr., quoted with approval.
Under section 5(1) of the Act the Government has to be satisfied on two counts before it could issue a declaration.
It must be satisfied in the first 510 instance that there is prima facie evidence of the commission of an offence.
Secondly, it must form the opinion in accordance with the guidelines contained in the preamble that such offence ought to be dealt with under the Act.
The condition of the existence of prima facie evidence is fulfilled in the case of the present declaration though the trial in the first Court had ended in a conviction and an appeal therefrom, the reason being that if conviction is construed as evidence of the existence of something more than a mere prima facie case, that would not mean that a prima facie case cease to exist.
That a prima facie case must be found to exist is only the minimum requirement for the satisfaction of the Central Government and it would be doubly made out if the evidence available is stronger than is needed to make out only a prima facie case.
A conviction of an accused person cannot mean that there is no prima facie evidence against him.
All that it spells out is that not only a prima facie case is made out against him but that the evidence available is even stronger and is sufficient for a conviction.
However, as the Government, while acting under the section, is to satisfy itself only with the existence of prima facie evidence, the assertion by it in the declaration that such evidence was available to its satisfaction cannot, by any stretch of imagination, be held to be inapplicable to a case in which a conviction has been recorded.
In this view of the matter the use of the expression 'prima facie ' evidence in the declaration is fully justified even though the trial had ended in a conviction which was under appeal on the date of the declaration.
[544 A G] A perusal of the declaration reveals that it gives the history of the case from beginning to end which demonstrates that the Central Government was fully aware of the various stages through which the trial of the appellants passed.
Thus, the formation of the opinion by the Government of the existence of a prima facie case cannot be held to be perfunctory or illusory.
It has not been shown that the declaration was in any way irrational or mala fide or based on extraneous considerations.
[546 F G] 18.
The provisions of Section 13 of the Special Courts Act are purely directory and not mandatory so that if the conditions mentioned in it are not fulfilled the declaration would not be vitiated.
It is to be noted that the section does not say that until a declaration is placed before the two Houses of Parliament it shall not be deemed to be effective, nor does the section intend that any consequences would result from its non compliance.
On a true interpretation of section 13 of the Act, it is clear that it is a case of a simple laying of the declaration before each House of Parliament.
[547 A B, 548 B] M/s Atlas Cycle Industries Ltd. and Ors.
vs State of Haryana, ; ; applied.
The doctrine of the violation of basic structure of the Constitution or its fundamental features applies not to the provisions of a law made by a State legislature or Parliament but comes into operation where an amendment made in the Constitution itself is said to affect its basic features like fundamental rights enshrined under Articles 14, 19, 31 or the power of amendment of the Constitution under article 368 and so on.
The doctrine has no application to the provisions of a Central or State law because if the statute is violative of any provision of the Constitution it can be struck down on that ground and it is not necessary to enter into the question of basic structure of the Constitution at all.
[548 C E] 511 20.
It is true that section 6 of the Act does not contemplate a prosecution which is relatable to the declaration under section 5 but that does not debar the application of section 5 to other stages of a criminal case, especially those specifically dealt with under section 7 of the Act which fully covers the situation in hand.
The limited field in which section 6 operates does not therefore exhaust the consequences flowing from the issuance of a declaration under section 5 of the Act.
[549 A B] 21.
The words "whether pending or disposed of" are significant and qualify the immediately preceding clause "a prosecution in respect of such offences".
The legislature has thus taken care to expressly provide that an appeal or revision would be covered by section 7 and transferable to the Supreme Court for disposal if it is directed against a judgment or order made in prosecution which is either pending or has been disposed of, the only other requirement of the section being that such appeal or revision must itself be pending at the date of the declaration.
Therefore to interpret section 7 in such a way as its applicability is limited to appeals or revisions arising from prosecutions pending at the trial stage at the date of the relevant declarations is possible only if the words "or disposed of" are treated as absent from section a course which is not open to this Court in view of the express language used.
[549 E G] 22.
There is no question of the exercise of any judicial power by the legislature in enacting section 7 of the Act which covers a well known legislative process.
By enacting section 7, Parliament has merely provided a new forum for the appeals which were pending in the High Court and in respect of which a valid declaration, fully consistent with the provisions of the Act, was made a course which involved no interference with the judicial functions of the court and was fully open to the legislature.
[550 A, E F] Indira Nehru Gandhi vs Sri Raj Narain, ; distinguished.
Since the classification made by the Act complies with the dual test laid down by the Supreme Court and therefore held to be a reasonable classifications, Article 14 would not be attracted even if the procedure is held to be harsher than that available under the ordinary law.
Apart from that, the procedure prescribed by the Act is not harsh or onerous but is more liberal and advantageous to the accused who is assured of an expeditious and fair trial thereunder.
[550 G H, 551 A] 24.
An appeal being a creature of statute, an accused has no inherent right to appeal to a particular tribunal.
The legislature may choose any tribunal for the purpose of giving a right of appeal.
Moreover, an appeal to the High Court is less advantageous than an appeal to the Supreme Court for the following reason: "The right of appeal given to an accused from the order of a Session Judge or Special Judge to the High Court is not totally unrestricted.
Section 384 of the Code of Criminal Procedure empowers an Appellate Court to dismiss an appeal summarily if it is satisfied that there is no sufficient ground for interference.
" While an appeal to the High Court under the Code of Criminal Procedure is attended with the risk of being summarily dismissed under section 384, an appeal under section 11(1) of the Act which runs thus: 512 "11.
(1) Notwithstanding anything in the Code an appeal shall lie as of right from any judgment sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law.
" is not so.
An appeal under section 11(1) lies as of right and both on facts and on law.
Thus, the right conferred on a convict by section 11(1) is wider and less restricted than the right of appeal given by the Code of Criminal Procedure.
(2) If the appeal is filed before the Supreme Court or is transferred thereto, the accused becomes entitled to a hearing of his case by the highest court in the country both on facts and on law and thus gets a far greater advantage than a right to move the Court for grant of special leave which may or may not be granted, it being a matter of discretion to be exercised by the Supreme Court.
Therefore the procedure regarding the appeals under the Act is not harsher than that prescribed by the Code of Criminal Procedure.
[552 D H, 553 E H, 554 C] Syed Quasim Razvi vs The State of Hyderabad and Ors. ; applied.
Even the Code of Criminal Procedure does not provide for any revision against an interlocutory order.
Section 397(2) of the Criminal Procedure Code expressly bars revision against interlocutory orders.
Inasmuch as there is no right of revision either under the Code of Criminal Procedure or under the Act, it cannot be said that section 11(1) of the Act creates a definite procedural disadvantage to the accused.
In fact under the Act, the Special Court is presided over by no less a person who is a sitting judge of a High Court and the possibility of miscarriage of justice is reduced to the barest minimum.
[555 C D] V. C. Shukla vs The State, through C.B.I., ; Jagannath Sonu Parker vs State of Maharashtra, [1963] Suppl.
1 SCR 573; followed.
The procedure for trial of warrant cases gives a full opportunity to the accused to participate in the trial at all its stages and to rebut the case for the prosecution in every possible manner and it has not been pointed out how the adoption thereof for trials under the Act would be to the disadvantage of the accused.
Therefore the provisions of sections 9(1) and (3) of the Act cannot be said to be harsh.
[556 E G] State of West Bengal vs Anwal Ali Sarkar, ; explained and distinguished.
None of the sections of the Act are violative of Article 14 or Article 21 or any other provision of the Constitution.
The classification made in the Act is valid and reasonable and has a rational nexus with the object of the Act and that the procedure prescribed is fair and advantageous to the accused.
[561 E F] 28.
The appellant in Crl.
Appeal 493/79 has not been singled out for a discriminatory treatment.
It is true that he has never been the holder of any high public or political office but the first clause of the preamble 513 clearly includes within its ambit not only persons holding high public or political offices but also others.
Section 8 thus incorporates the well known concept of joint trial of accused persons in respect of offences forming part of the same transaction.
[551 C E] Further Held (on merits): 29.
In order to prove a criminal conspiracy which is punishable under section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence.
This clearly envisages that there must be a meeting of the minds resulting in an ultimate decision taken by the conspirators regarding the ommission of an offence.
[565 H, 566 A] 30.
It is true that in most cases, it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement two or more persons to commit an offence.
[566 A B] In the instant case, there is no acceptable evidence connecting either of the appellants with the existence of any conspiracy.
Even taking the main part of the prosecution case at their face value, no connection has been proved with the destruction of the film 'Kissa Kursi Ka ' and the two appellants.
The evidence produced by the prosecution falls short of the standard of proof required in a criminal case.
The prosecution failed to prove either there was any existence of any conspiracy between A 1 and A 2 to destroy the film 'Kissa Kursi Ka ' by burning it or to commit any other offence in respect of the film.
There is evidence to show that there was any meeting of minds between A 1 and A 2.
Even on the first two parts of the prosecution case, the allegation of the prosecution that the positive prints were removed at the instance or to the knowledge of A 1 or that the negatives and other materials of the film were sent for by A 1 and kept in his personal custody has not been proved.
The mere fact that A 1 decided to show the film and refused certification for public exhibition and passed orders for seizure of the film and its transfer to the custody of the Ministry of Information does not disclose any offence.
The decision to ban the film was not taken by A 1 secretly or clandestinely but after a full fledged discussion in the coordination Committee meeting attended by senior officers of various ministries as deposed by Prasad PW 63.
Further that part of the case which relates to the burning of film material rests solely on the uncorroborated testimony of the approver and is negatived insofar as the role therein of A 1 is concerned.
[566 C D, 583 F H, 584 A B] (i) Till 9 7 75 i.e. the date by which the notice to show cause why certification of the film 'Kissa Kursi Ka ' was made returnable, neither A 1 nor A 2 was anywhere in the picture.
The facts disclosed by the prosecution ex facie show that objection to certification of the film had been taken at the very initial stage and the ultimate order was passed during the time when A 1, Mr. Shukla had taken over as Minister, which was merely the final scene of a drama long in process; [564 C E] (ii) Even at the stage of proposed exhibition of the film to the Judges of the Supreme Court who constituted the Bench and heard the Special Leave Petition i.e. 17 11 75 there was absolutely no evidence to show that there 514 was any meeting of minds of A 1 and A 2 nor is there any material to indicate that A 2 played any role in the burning of the film.
The decision to ban the film was taken by the Ministry headed by A 1, on the merits of the case.
No motive is attributable to A 1 at this stage because even the Chairman of the Board, PW 8 Mr. Thapa who was an independent witness was of the view that the film should not be certificated for public exhibition.
Similarly, the steps taken by the officers of the Ministry in persuance of the film at Bombay and its transfer to Delhi was in the nature of routine to see that the decision taken by the Government was implemented.
As soon as the Ministry received the orders of the Supreme Court for screening the film on 17 11 1975, immediate steps were taken to comply with the orders of the Court.
Admittedly between 17th November 1975 to 23rd November 1975, A 2 was either away to Hyderabad or Sikkim as proved by DW 3.
This negatives the story of the approver connecting A 2 with the burning of the film.
[565 E H, 581 C D, 582 A] A lot of evidence has been produced by the prosecution to show: (a) that the positive print of the film found its way into the luggage compartment of the car in which A 1 then travelled to the Prime Minister 's house where the print was unloaded by someone in the absence of A 1; and (b) that the negatives and other material relating to the film were taken in a tempo or two to the Prime Minister 's residence and from there to the Maruti Complex where they were stored before their destruction.
[584 B D] But the connection of A 1 or A 2 therewith remains unproved.
Had these factors provided circumstantial evidence on the basis of which alone the charge against either A 1 or A 2 could be held established it would have been necessary for the Court to sift the evidence produced in support thereof.
But that is definitely not the case, for, if either or both of the factors are proved, the inference of guilt of either A 1 or A 2 does not necessarily follow.
For circumstantial evidence to furnish evidence of guilt it has to be such as it cannot be explained on any other reasonable hypothesis except the guilt of the accused which is not the case here because appellants A 1 and A 2 could not be said to be the only persons interested in the destruction of the film if it was as obnoxious to the then Prime Minister or as critical of the functioning of the then Union Government as the prosecution would have the Court believe.
The film and all the material relating to it no doubt appear to have vanished into thin air but then neither A 1 nor A 2 can be held responsible therefor, in the absence of proof in that behalf proof which would exclude all reasonable doubt.
[594 D G] (iii) A mere identification by a witness of a person in the Court for the first time who was not known to the witness and who had only caught a glimpse of the person, long time before is valueless, in the absence of the operative witness being tested by a previously held Test Identification does not exclude possibility of mistakes in identification.
[576 B D]
|
Civil Appeal Nos.
1237 1238/1970.
From the Judgment and Order dated 15 12 1969 of the Punjab and Haryana High Court in Civil Writ Appeal Nos.
444/68 and 2975/67.
Hardayal Hardy, Mahinder Narain and Rameshwar Nath for the Appellants in both the Appeals.
section M. Ashri and M. N. Shroff for the Respondents in both the Appeals.
The Judgment of the Court was delivered by KAILASAM, J.
These two appeals are by certificate granted by the Punjab and Haryana High Court at Chandigarh in C. W. No.444/1968 and C. W. No. 2975 of 1967 respectively.
The petitions were disposed of by a full Bench of the High Court on 15 12 1969.
The appellants who were the petitioners before the High Court prayed for a writ of certiorari or mandamus or any other appropriate writ for quashing the resolution No. 6 dated 21st July, 1965 of the Municipality and letter of the Government of Haryana to the President of the Municipal Committee Bahadurgarh dated 30 10 1967.
The facts of the case briefly are as follows: The Municipal Committee of Bahadurgarh, Respondent No. 2, established Mandi Fateh in Bahadurgarh Town, with a view to improve trade in the area.
The Municipal Committee decided that the purchasers of the plots for sale in the Mandi would not be required 696 to pay octroi duty on goods imported within the said Mandi.
In pursuance of this decision, resolution No. 8 dated 20 12 1916 was passed by the Municipality.
Handbills were issued for the sale of the plots on the basis of the resolution and it was proclaimed that Fateh Mandi would remain exempt from payment of octroi.
Subsequently by resolution No. 4 dated 20 5 1917, the Municipal Committee decided that the term No. 14 to the conditions of sale, namely, that the plots would not be required to pay octroi, be amended to the effect that the Mandi shall remain immune from payment of Octroi Duty for ever.
When the resolution was received by the Commissioner of Ambala, in paragraph 3 of his letter dated 26 6 1917 marked as Annexure A in the writ petition, he noted: "I note that by its resolution No. 4 of 20 5 1917, the Municipal Committee has undertaken that Octroi shall never be imposed in the Mandi.
This is ultra vires, the Municipal Committee cannot make such an undertaking and this should be explained to the purchasers of sites before they begin building so that if they wish they may withdraw from the purchase".
Of course, it is unlikely that Octroi will be imposed." On receipt of this letter, the President of the Municipal Committee made representations that if octroi duty was to be levied, there will be no purchasers for the plots and the entire scheme will fall through.
On receipt of this representation on 20 9 1917 (Annexure B), the Commissioner revised his view and stated that he was cancelling para 3 of his letter dated 26 6 1917, that is to say, "that in deference to the strong views of the Municipal Committee and to your own opinion that the market will collapse if I insist upon it, I withdraw my objection to the undertaking made by the Municipal Committee that Octroi will not be imposed on the market.
As soon as the market is established it will be necessary to consider what form of taxation is best to cover the market share of Municipal expenses".
The Municipal Committee on 10 3 1919 imposed house tax of Rs. 3 14 6 per cent per annum on the shopkeepers to cover the expenditure of the market.
This state of affairs continued till 4 9 1953 when the Municipal Committee by notification No. 9697 C 53/63830 dated 4 9 1953 included Fateh Mandi, Bahadurgarh, within the Octroi limits.
The Examiner of Local Funds pointed out that the Municipal Committee is under obligation to charge octroi on goods imported into Fateh Mandi.
The President of the Municipal Committee made a representation to the Deputy Commissioner on 24 2 1954.
The Municipal Committee again passed another resolution No. 1 dated 2 3 1954 that the 697 Fateh Mandi will remain free from octroi duty according to the terms of the proclamation of the sale relating to the sale of plots.
The matter was referred to the Punjab State which after thoroughly examining the whole matter, confirmed Resolution No. 1 passed by the Municipal Committee on 2 3 1954.
Subsequently, the Municipal Committee changed its mind and by its resolution dated 8 5 1954, resolved that octroi duty should also be levied on the goods imported into Fateh Mandi.
But this resolution was annulled by the Punjab Government under section 236 of the Punjab Municipal Act.
The Examiner of Local Funds Accounts in the meantime insisted on the levy of octroi duty on the goods imported into Fateh Mandi and the Punjab Government after discussing the issue on 9 4 1956 informed the President of the Municipal Committee that the Government 's action in confirming the resolution No. 1 of 2 3 1954 of the Municipal Committee, Bahadurgarh exempting goods imported into Fateh Mandi from levy of octroi duty under section 70(2) (c) of the Municipal Act, 1911, is quite in order and that no separate notification to this effect was necessary under the rules.
Again on 21 7 1965, the Municipal Committee Bahadurgarh resolved that the Government be requested to cancel Resolution No. 1 dated 2 3 1954.
The State of Haryana Respondent No. 1 which came into existence on 1 11 1964 under the Punjab Reorganisation Act, by its memo dated 13 10 1967 approved the resolution No. 6 dated 21 7 1965 of Municipal Committee and cancelled the Municipal Resolution No. 1 of 2 3 1954.
As a result of the decision of the Government, the Municipal Committee started charging octroi duty on the goods imported into the Mandi.
On these facts, the petitioners submitted that the resolution No. 6 of the Municipal Committee dated 21 7 1965 (Annexure G) and the approval granted by the Haryana State as per its order dated 30 10 1967 (Ann.
H) are illegal and ultra vires and without jurisdiction.
A Full Bench of the High Court rejected the petition mainly on three grounds, Firstly, it found that the State Government is entitled under section 62 A of Punjab Act, 48/1953 to direct the Municipal Committee to impose octroi duty and as such even if the municipality is found to have erred in imposing the Octroi Duty, the legislative powers of the State cannot be questioned.
Secondly, it found, that it was not within the competence of the Municipality to grant any exemption from payment of octroi duty and this act is ultra vires of its powers and cannot be enforced.
Thirdly, it found that the Court cannot go into the question as to whether the petitioners ' plea based on equity that the Municipality is bound, cannot be gone into for want of adequate facts.
698 Dealing with the first contention, relating to the legislative powers of the State, it will be seen that Punjab Act 48/1953, introduced s.62A which runs as follows: "62 A. (1) The State Government may, by special or general order notified in the official Gazette, require a Committee to impose any tax mentioned in S.61, not already imposed at such rate and within such period as may be specified in the notification and the Committee shall thereupon act accordingly.
(2) The State Government may require a Committee to modify the rate of any tax already imposed and thereon the committee shall modify the tax as required within such period as the State Government may direct.
(3) If the Committee fails to carry out any order passed under Sub section (1) or (2) the State Government, may by a suitable order notified in the official gazette, impose or modify the tax.
The order so passed shall operate as if it were a resolution duly passed by the Committee and as if the proposal was sanctioned in accordance with the procedure contained in S.62.
" It is admitted that the State Government is empowered under section 62A to require the Municipal Committee to impose octroi Duty and under sub section
(3) if the Committee fails to carry out the order of the Government, the State Government may impose octroi Duty.
Under section 70(2) (c), a Municipal Committee by a resolution passed at a special meeting and confirmed by the State Government may exempt in whole or in part from the payment of any such tax any person or class of persons or any property or description of property.
In exercise of these powers, the State Government had by its order dated 4 5 1954 confirmed resolution No. 1 passed by the Municipal Committee in its special meeting held on 2 3 1954 regarding the exemption of goods imported into Fateh Mandi from levy of Octroi Duty.
Subsequently, in reply to the objection raised by the Examiner of Local Funds, the Government pointed out by its letter dated 9 4 1956 (Ann. F) that the Government 's action confirming the resolution No. 1 dated 2 3 1954 of the Municipal Committee exempting Goods imported into Fateh Mandi, under section 70(2) (c) of the Punjab Municipal Act, 1911, is quite in order.
By the impugned order dated 20 10 1967 the Government approved the resolution No. 6 of the Municipal Committee dated 21 7 1965 and permitted the Municipality to levy the Octroi Duty.
The action taken by the State Government is strictly in conformity with the powers conferred on it under section 70(2) (c) of the 699 Act.
It exempted the petitioners from payment of Octroi Duty for a particular period and ultimately withdrew the exemption.
The action of the Government cannot be questioned as it is in exercise of its statutory functions.
The plea of estoppel is not available against the State in the exercise of its legislative or statutory functions.
The Government have powers to direct the Municipality to collect the Octroi Tax if the Municipality fails to take action by itself under section 60(A) (3).
Further, even on facts, this plea is not available as against the Government as it is not the case of the petitioners that they acted on the representation of the Government.
We, therefore, agree with the view of the Full Bench that the plea of estoppel is not available against the Government for questioning the validity of the impugned Government order.
The second contention is that the Municipality is estopped from levying or recommending the levy of the tax to the Government as in the proclamation of sale it was notified that no Octroi Duty will be levied and it was only in pursuance of such representation, the petitioners purchased the property.
We feel this plea should also fail, because the Municipal Committee had no authority to exempt the Fateh Market from the levy of Octroi Duty.
If the Municipal Committee had passed a resolution or issued a notification that no Octroi Duty will be levied, it will be ultra vires of the powers of the Municipal Committee.
When a public authority acts beyond the scope of its authority the plea of estoppel is not available to prevent the authority from acting according to law.
It is in public interest that no such plea should be allowed.
The third contention that was raised by the learned counsel for the appellants before the High Court and reiterated before us, is that the Municipality and its successors are bound by the doctrine of promissory estoppel and as such are estopped from levying the Octroi Duty.
The High Court rejected the plea on the following grounds: 1.
The Petitioners are not the original purchasers of the plots in Fateh Mandi.
They are either descendants of or transferees from the original purchasers of the plots.
No sale deed was executed by the Municipal Committee in favour of the original purchasers undertaking that no octroi duty will be levied.
No allegation has been made that the original purchasers would not have purchased the plots, if condition No. 14 about immunity from payment of Octroi had not been there.
The learned counsel by reference to the names of the list of the purchasers was able to satisfy us that some of the appellants are the 700 original purchasers and as such the first objection raised before the High Court is not sustainable.
Again, regarding the third objection, that there is no allegation that the original purchasers would not have purchased the plots if condition 14 about immunity from payment of Octroi had not been there, it was submitted as erroneous as in the affidavit filed in support of the writ petition, the petitioners had pleaded in paragraph 2 that on the faith of the representation, the petitioners purchased the plots and constructed establishments.
The learned counsel is, therefore, right in his submission that the third objection raised before the High Court is without substance.
But the High Court was right in pointing out that none of the sale deeds executed by the Municipal Committee in favour of the purchasers was produced before the Court.
These circumstances would show that the contract between the parties have not been proved to have been reduced in writing and executed in the manner prescribed under section 47 of the Act.
Strictly, therefore, under the terms of the Municipal Act, the appellants are not entitled to any enforceable legal right.
But it was submitted that even though the contract had not been executed in due form, the appellants would be entitled to relief under, the doctrine of promissory estoppel.
The question that arises for consideration in these cases is whether the proclamation of sale which notified that there would be no octroi levy in the market relying on which statement the petitioners bid at the auction, would estop the Municipality by operation of the doctrine of promissory estoppel from recommending to the Government and the Government levying octroi duty under section 61 of the Punjab Municipal Act.
To answer this question it is necessary to examine at some length the rights and liabilities of the State under a contract entered into by it with third parties and in transactions carried on by it in exercise of its executive and statutory functions.
article 299 (1) of the Constitution of India provides that all contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
This Article in the Constitution corresponds to section 175(3) of the Government of India Act, 1935.
In cases, that arose out of section 175(3) of the Government of India Act, 1935, this Court starting from Seth Bikhraj Jaipuria vs Union of India, has 701 repeatedly held that the provision is mandatory and not directory, that the provision is enacted as a matter of public policy, that the State should not be saddled with liability for unauthorised contracts and that the provision is enacted in the public interest.
In Mulamchand vs State of M. P., the earlier decisions of this Court were relied on and it was held that the reasons for enacting the provision is not for the sake of some form but for safeguarding the Government against unauthorised contracts.
The provisions are embodied on the ground of public policy on the ground of protection of general public and these formalities cannot be waived or dispensed with.
The Court clearly observed that if the plea of the respondent regarding estoppel or ratification is admitted that would mean, in effect, the repeal of an important constitutional provision intended for the protection of the general public.
That is why the plea of estoppel or ratification cannot be permitted in such a case." (emphasis Ours) It was contended before this Court in Karamshi Jethabhai Somayya vs State of Bombay, that in an agreement entered into under the Act by statutory authority in pursuance of a statutory power, that consequences provided under the statute would follow and would not fall within the ambit of section 175(3) of the Government of India Act.
This Court after examining the terms of the contract found that it did not fall within the provisions of the Act and, found it unnecessary to deal with the contention.
The scope of the doctrine of equitable estoppel arose for consideration before this Court in Collector of Bombay vs Municipal Corporation of the City of Bombay and Ors.
In 1865, the Government of Bombay called upon the predecessor in title of the Corporation of Bombay to remove some markets from a certain site and vacate it, and on the application of the then Municipal Commissioner the Government passed a resolution approving and authorising the grant of another site to the Municipality.
The resolution stated further that "the Government do not consider that any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community".
The Corporation gave up the sites on which the old markets were situated and spent a sum of over 17 lacs in erecting and maintaining markets on the new site.
In 1940, the Collector of Bombay, overruling the objection of the Corporation, assessed the new site under S.8 of the Bombay City Land Revenue Act to land revenue rising from Rs. 7,500/ to Rs. 30,000/ 702 in 50 years.
The Corporation sued for a declaration that the order of assessment was ultra vires and that it was entitled to hold the land for ever without payment of assessment.
The Supreme Court held by a majority of four Judges to one that the Government was not entitled to assess land revenue for the land in question.
Three of the Judges who were parties to the majority judgment found that the Corporation had taken possession of the land in terms of the Government resolution and continued in such possession openly, uninterruptedly and as of right for over 70 years and acquired limited title it had been prescribing for during the period, that is to say, the right to hold the land in perpetuity free of rent, but only for the purpose of a market and for no other purposes.
The right acquired included as part of it an immunity from payment of rent which constituted a right in limitation of the Government 's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S.8 of the Bombay City Land Revenue Act.
Before the Court there was considerable discussion as to the scope and effect of the principle of equity enunciated in Ramsden vs Dyson, as to whether such principle should be extended to the facts of the case and as to whether the facts of the case attract the application of the equity established in Ramsden vs Dyson or attract the equity established in Maddison vs Alderson, and Walsh vs Lonsdale, and finally as to whether the decision of the Privy Council in Ariff vs Jadunath the equity in Ramsden vs Dyson can prevail against the requirement of formalities laid down in the Victorian Statute referred to above any more than the equity in Maddison vs Alderson can do against the requirements of the Transfer of Property Act.
The majority of the judges did not express any opinion on this question but decided the appeal on a narrower and shorter ground stated above.
One of the judges, Chandrasekhara Aiyar, J. constituting the majority expressed his view thus: "Whether it is the equity recognised in Ramsden 's case, or it is some other form of equity, is not of much importance.
Courts must do justice by the promotion of honesty and good faith so far as it lies in their power.
As pointed out by Jenkins C. J. in Dadoba Janardhan 's case a different conclusion would be opposed to what is reasonable, to what is probable and what is fair.
" The other judges of the Court who spoke for the Court refrained from going into this question.
The view of Chandrasekhara Aiyer, J. 703 being the view of one of the judges of the majority, cannot be taken as the view of the Court.
Patanjali Sastri, J. as he then was dissented with the majority and stated: "The principle of Ramsden vs Dyson cannot prevail against statutory requirements regarding disposition of property or making of contract by Government * * *The right to levy land revenue is no part of the Government 's right to property but a prerogative of the Crown and adverse possession of the land could not destroy the Crown 's prerogative to impose assessment on the land.
" A Bench of four judges of this Court in a decision Excise Commissioner.
U. P. Allahabad vs Ram Kumar, after examining the case law on the subject observed that "it is now well settled by a catena of decisions that there can be no question of estoppel against the Government in exercise of its legislative, sovereign or executive powers.
" The earlier decisions of this Court in M. Ramanathan Pillai vs State of Kerala, and State of Kerala and Anr.
vs The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. were followed.
It may, therefore, be stated that the view of this Court has been that the principle of estoppel is not available against the Government in exercise of legislative, sovereign or executive power.
On behalf of the petitioners, it was submitted that a liberal view was taken by this Court in the decision Union of India vs M/s. Indo Afghan Agencies Ltd. which recognised the principle of promissory estoppel and held that whether the agreement is executive or administrative in character, the courts have power in appropriate cases to compel performance of the obligations imposed by the schemes upon the departmental authorities.
At this decision is relied on as the sheet anchor of the doctrine of promissory estoppel, the facts of the case and the decision rendered therein, have to be examined carefully.
Indo Afghan Agencies Ltd. the respondents before this Court exported woollen goods to Afghanistan and were issued an Import Entitlement Certificate by the Textile Commissions not for the full F. O. B. value of the goods exported, but for a reduced amount.
By virtue of the powers conferred under S.3 of the Imports and Exports (Control) Act, 1947, the Central Government issued the Imports (Control) Order, 1955 setting out the policy governing the grant of import and export licence.
During the relevant period, it provided for the grant to an exporter, certificates to import raw materials of a 704 total amount equal to 100% of the F. O. B. value of his exports.
Cl.10 of the Scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied after holding an enquiry that the declared value of the goods is higher than the real value of the goods.
It was contended, amongst other grounds, that the Government on grounds of executive necessity was the sole judge of the validity of its action in matters relating to import and export policy, because the policy depended upon the economic climate and other related matters and had to be in its very nature flexible with power in the Government to modify or adjust it as the altered circumstances necessitate.
It was pleaded that if the Government was held bound by every representation made by it regarding its intentions, it would amount to holding the Government as being bound by contractual obligations even though no formal contract in the manner required by article 299 of the Constitution was executed.
Regarding the objection on the ground of contravention of article 299 of the Constitution, the Court held that the respondents were not seeking to enforce any contractual right but were seeking to enforce compliance of the obligation which is laid upon the Textile Commissioner by the terms of the Scheme and the claim of the respondents was founded upon the equity which arose in their favour as a result of the representation made on behalf of the Government in the Export Promotion Scheme.
(emphasis supplied).
It may be noted that no finding was recorded by the Textile Commissioner, that there was any infringement which entitled him to reduce the quota under Cl.
10 of the scheme.
The facts of the case disclose that the defence of the executive necessity was not relied upon in the affidavit filed on behalf of the Union of India.
It was also not pleaded that the representation in the Scheme was subject to an implied term that the Union of India will not be bound to grant the import certificate for the full value of the goods if they deem it inexpedient to grant the certificate.
The Court after referring to earlier decisions of this Court accepted the view expressed in those decisions that reduction in the amount of import certificate may be justified on the ground of misconduct of the exporters in relation to goods exported or on such considerations as the difficult foreign exchange position or other matters which have a bearing on the general interest of the State (emphasis supplied).
Summing up the law laid down by the earlier cases, the Court found that in each of the three cases this Court held that it was competent to grant relief in appropriate cases, if, contrary to the Scheme, the authority declined to grant a licence or import certificate or the authority acted arbitrarily and that the Union of India and its Officers are not entitled at their mere whim to ignore the promises made by the Government (emphasis 705 supplied).
It rejected the plea on behalf of the Government that the Textile Commissioner is the sole judge of the quantum of the import licence to be granted to an exporter and that the Courts were powerless to grant relief if the promised import licence is not given to an exporter who has acted in his prejudice relying upon the representation.
The decision is, therefore, an authority for the proposition that in the absence of a plea of executive necessity, the Court in appropriate cases is entitled to compel performance of the obligations imposed by the Scheme on the departmental authority.
The right of the Government on relevant considerations such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State, to reduce the amount of import certificate was recognised.
But the authorities have to act according to the terms of the scheme and not arbitrarily or at their mere whim to ignore the promises made by the Government (emphasis supplied).
On the facts of the case, the Court gave relief as the authorities declined to act according to the terms of the Scheme and acted arbitrarily and at their mere whim ignoring the promises made by the Government.
The question as to the applicability of the doctrine of promissory estoppel against the legislative or executive acts of the Government did not strictly arise in the case.
The decision was thus generally understood as stated above is seen from the view expressed by Mr. H.M. Seervai on Constitution of India, 2nd Edn.
I, paragraph 11 at para 146 B, p. 433: "The authorities considered by the Supreme Court, and the conclusions drawn from them, by Shah, J. in the present case, merely affirm the proposition that the Government could not go back upon promises made in the exercise of discretionary power as embodied in a scheme, merely on a whim (emphasis by Mr. Seervai) x x x x x X A promissory estoppel cannot stand on a higher footing than a contract entered into between a citizen or subject and a public authority and it is settled by numerous decisions that no public authority entrusted with discretionary power to be exercised for the public can bind itself by a contract not to exercise that discretion when the public good demands its exercise".
It is only in public interest that it is recognised that an authority acting on behalf of the Government or by virtue of statutory powers cannot exceed his authority.
Rule of ultra vires will become applicable when he exceeds his authority and the Government would not be bound by such action.
Any person who enters into an arrangement 706 with the Government has to ascertain and satisfy himself that the authority who purports to act for the Government, acts within the scope of his authority and cannot urge that the Government is in the position of any other litigant liable to be charged with liability.
In refuting the contention that the contract is unenforceable on the ground that there had been no strict compliance of the requirement of article 299 of the Constitution, the Court observed that the respondents were not seeking to enforce any contractual rights but were seeking to enforce compliance with the obligation which was laid upon the Textile Commissioner by the terms of the Scheme.
Thus, the relief that was granted by the Court was by enforcing the compliance of the obligation which was laid upon the Textile Commissioner by the terms of the Scheme.
The Court proceeded to state that the claim of the respondents is appropriately founded upon the equity (emphasis ours) which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondents acting upon that representation under the belief that the Government would carry out the representation made by it.
Thus the equity which the Court was enforcing was to direct compliance of the obligation which is laid upon the Textile Commissioner by the terms of the scheme.
The equity cannot be understood as barring the authority from modifying the scheme on special considerations such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State (vide p. 380).
The purport of the judgment is made clear by its own observation: "Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot be some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.
" The observations of the Court that the claim of the respondents is properly founded on the equity should be understood on the facts and findings of the Court in the case.
The Court relying on the observations of Chief Justice Jenkins, observed that even though the case does not fall within the terms of S.115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the from of a formal contract as required by the Constitution.
The Court 707 would be bound when the officer made the promise within the scope of his authority and failed to act upon it at his mere whim and acted arbitrarily on some undefined and undisclosed grounds of necessity.
Before proceeding further with the case, we will refer briefly to the purport of the doctrine of promissory estoppel.
The doctrine of promissory estoppel burst into sudden blaze in 1946 when Denning.
J. sitting in the Court of Kings Bench delivered the judgment in Central London Property Trust Ltd. vs High Trees House Ltd. which has now become famous as the High Trees Case.
The facts of the case are: During the war many people left London owing to bombing.
Flats were empty.
In one block, where the flats were let on 99 years leases at $ 2,500/ a year, the landlord agreed to reduce it by half and to accept $ 1,250/ a year.
When the bombing was over, and the tenants came back, the landlord sought to recover the full rent at $ 2,500/ a year.
Denning, J. held that the landlord could not recover the full amount for the time when the flats were empty.
The lease was a lease under seal which according to English Common Law, could not be varied by an agreement by parole, but only by deed.
The learned judge invoked equity to his aid and said that if there has been a variation of a deed by simple contract the courts may give effect to it.
The counsel for the lessee pleaded that the lessor had agreed though without consideration to accept the rent at a reduced rate, and set up a plea of estoppel by way of defence to the claim for arrears of rental calculated at the full rate.
Faced with Foakes vs Beer, if the defence was raised as a matter of contract and Jorden vs Money, if it was raised as estoppel.
Denning.
J. held that the estoppel sustained although based on an assurance as to the future, because the promisor intended to be legally bound and intended his promise to be acted upon, with the result that it was so acted upon.
In Jordan vs Money (supra), the House of Lords held that a promise to pay a smaller sum of money in discharge of larger amount which was due, was void since such a promise was without consideration.
Denning, J. relying on Fenner vs Blake, Re: Wickhem William Porter & Co. Ltd. and Buttery vs Pickard observed that they were cases of estoppel in the strict sense.
They are really promises promises intended to be binding intended to be acted upon, and in fact acted on and in the circumstances the plaintiff company will be bound by the arrangement in its letter.
Though the observations of 708 Denning, J. in High Trees case were in the nature of obiter dicta, the decision became the starting point of the several shades of opinion regarding the scope of promissory estoppel.
It is unnecessary for our purpose to go into the development of law of promissory estoppel starting from High Trees case.
It is sufficient to state that since the High Trees decision was rendered, many elaborations and glosses have appeared in the reports.
Turner in his book Estoppel by Representation, has a separate chapter dealing with promissory estoppel.
The doctrine, as observed by the author at the conclusion of the chapter, "burst out into sudden blaze in 1946 has ever since continued to smoulder, and that its original author has constantly maintained his interest in its further development, now in this direction, now in that".
But there has been high places counselling conservatism *** Lord Hailsham of St. Marylebone, has expressed his views in Woodhouse Ltd. vs Nigerian Produce Ltd. as follows: "I desire to add that the time may soon come when the whole sequence of cases based on promissory estoppel since the war *** systematically explored".
This subject though interesting may not be relevant in administering Indian Law.
section 63 of the Contract Act provides that when a creditor accepts a lesser sum in satisfaction of the whole debt, the whole debt become discharged.
This provision is a wide departure from the English Law and the discussion about Jordan vs Money wherein it was held that a promise to accept a smaller sum is devoid of consideration, becomes pointless.
So also the doctrine of estoppel referred to in the High Trees case is, to some extent taken care of by Ss. 65 and 70 of the Indian contract Act.
S.65 provides that when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it.
Under section 70 of the Contract Act, an obligation is cast on the person enjoying benefit of a non gratuitous act to compensate the person who lawfully performed the act.
As to whether the provisions of section 65 and 70 of the Indian Contract Act, are applicable to contract which is not according to section 175 of the Government of India Act and article 299 of the Constitution of India, there is a difference of opinion.
Sir Maurice Gwyer expressed his view that when a contract is void, recourse to S.70 cannot be had.
Later, the Supreme Court held in State of West Bengal vs B. K. Mondal & Sons, that S.70 was applicable to such a case.
This decision was 709 followed in New Marine Coal Co. Ltd. vs Union, and in later cases by the Supreme Court.
In discussing the scope of the doctrine of promissory estoppel, and its applicability against the Government and Government Officers in their dealings with the subject, Lord Denning J. in Robertson vs Minister of Pensions observed : "The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded.
Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action.
That doctrine was propounded by Rowlett J., in Redariaktiebolaget Amphtrite vs The King but it was unnecessary for the decision because the statement there was not a promise which was intended to be binding but only an expression of intention.
Rowlett, J., seems have been influenced by the cases on the right of the Crown dismiss its servants at pleasure, but those cases must now all be read in the light of the judgment of Lord Atkin in Reilly vs The King (1954) A. C. 176, 179) *** In my opinion the defence of executive necessity is of limited scope.
It only avails the Crown where there is an implied term to that effect or that is the true meaning of the contract." Lord Denning was dealing with a case of a serving army officer who wrote to the War Office regarding a disability and received a reply that his disability had been accepted as attributable to "military service".
Relying on that assurance, he forbore to obtain an independent medical opinion.
The Minister of Pensions took the view that appellant 's disability could not be attributed to war services.
Lord Denning held that between the subjects such an assurance would be enforceable because it was intended to be binding, intended to be acted upon, and it was in fact acted upon; and the assurance was also binding on the Crown because no term could be implied that the Crown was at liberty to revoke it.
The decision in Robertson 's case is quoted with approval in the Indo Afghan case but before we revert to the Indo Afghan case, we will follow the course which Robertson 's case took.
The correctness of the case came up for consideration before the House of Lords in Howell vs Falmouth Boat Construction Co. Ltd. The appeal was preferred to the 710 House of Lords from the Court of Appeal against the judgment of Bucknil, Singhleton and Denning, L.JJ.
In his judgment in the Court of Appeal, Denning L. JJ.
pressed the principle in the following terms: "Whenever Government Officers, in their dealings with a subject, take on themselves to assume authority in a matter with which he is concerned, the subject is entitled to rely on their having the authority which they assume.
He does not know and cannot be expected to know the limits of their authority, and he ought not to suffer if they exceed it.
That was the principle which I applied to Robertson vs Minister of Pensions, and it is applicable in this case also.
" Commenting on the view taken by Denning, L. J. Lord Simonds observed : "My Lords, I know of no such principle in our law nor was any authority for it cited.
The illegality of act is the same whether or not the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy.
*** The question is whether the character of an act done in face of statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority.
In my opinion, the answer is clearly "no".
Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way, but that does not justify a different answer being given.
" Lord Normand referred to the principle laid down by Denning L. J. and observed : "As I understand this statement, the respondents were in the opinion of the learned Lord Justice, entitled to say that the Crown was barred by representations made by Mr. Thompson and acted on by them from alleging against them a breach of the statutory order, and further that the respondents were equally entitled to say in a question with the appellant that there had been no breach.
But it is certain that neither a Minister nor any subordinate officer of the Crown can by any conduct or representation bar the crown enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of the contract.
" The view expressed by the House of Lords and the Privy Council has been followed in English cases.
711 The Privy Council in Antonio Buttigieg vs Captain Stephen H. Cross and Ors, has ruled that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises, that it cannot by contract hamper its freedom of action in matters which concern the welfare of the State.
The competent Military Authority approached the appellant for opening a club for officers serving in his Majesty 's forces.
The appellant stated his willingness to take on lease certain premises and asked the Military authorities to procure him a licence to continue the club after the termination of the war.
The military authorities failed to obtain a licence and the appellant was informed of their inability to obtain the licence and an officer on behalf of the military authorities stated that the appellant should have a guarantee seeing that the war was not likely to come to an end quickly and that the club would be kept open throughout the war.
The rules for the conduct of the club were drawn up and were approved by the Military Authorities.
Rule 18 provided that the club should endure during the time when the said hostilities existed.
The club was placed out of bounds for service members by order of the Military Authorities because the club was being mismanaged by the sale of liquor long after permitted hours.
As the club was a purely Service Club, it was subsequently wound up.
The appellant complained of the loss to which he had been put by placing the club out of bounds and sought to hold the Military Authorities responsible for such loss.
The Court of Appeal while giving judgment in favour of the Military Authorities observed : "It is a settled principle and it has been constantly held by this Court and in local case law, that those two functions of the civil or the military Government are totally distinct.
The Military Authorities could not have renounced those rights, in as much as it would have been immoral and against every fundamental principle of Constitutional Law if the Authorities, in order to open a club, which is a purely administrative act were to sacrifice interests which are far more important and therefore of a much higher order, whether political, moral or affecting public order.
Consequently when, within the administrative sphere, the Government enters into a contract with a private individual, the Government is bound to respect that contract, but it does not thereby deprive itself of its political power to issue orders that may become necessary by reason of public order, jure imperii even though, in consequence of such orders, the contract itself becomes impossible of fulfilment.
" 712 During the arguments before the Privy Council, it was conceded on behalf of the appellant taking into consideration the decision in Adams vs London Improved Motor Coach Builders and Redariaktiebolaget Amphtrite vs The King, that it was not open to the Crown to bind itself not to close the club if that course became necessary in the public interest and the order placing the club out of bounds was justified in the circumstances which existed.
Having thus observed the Privy Council quoted the following passage from the Judgment of Rowlatt, J. in Rederiaktiebolaget Amphtrite case that "it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises.
It cannot by contract hamper the freedom of action in matters which concern the welfare of the State" and stated that these words appear to their Lordships to cover that aspect of the present case.
While House of Lords in Howell 's case disagreed with the observations of Lord Denning J. in Robertson 's case, the Privy Council approved the law laid down by Rowlatt, J. in Rederiaktiebolaget Amphtrite case which was dissented to by Denning, J. in Roberston 's case.
It may be noted that in Indo Afghan case, the Court quoted the passage from Denning 's judgment which did not approve the view of Rowlatt, J. The Privy Council approved the view taken by Rowlatt, J. in Rederiaktiabolaget Amphtrita case.
In William Cory & Son Ltd. vs London Corporation, London Corporation acting as sanitary authority under the Public Health (London) Act, 1936 made a contract with the claimants, barge and lighter owners, for the removal of refuse from a wharf in the City of Horn church, Essex, where it was to be dumped.
In April, 1948, the Corporation acting as port health authority for the Port of London, sealed by laws concerning the disposal of refuse in the area of the port one of which relating to co amings and coverings of barges, was far more onerous on the claimants than the requirements in the contract of 1936.
It was provided that this by law was not to come into effect until November 1, 1950.
It was contended by the claimants that by the provisions of the contract of 1936, there was an implied or an express term that the corporation should not impose more onerous burden on the claimants as to the coamings and coverings of their barges than those contained in the contract of 1936.
The plea of the claimants was rejected and the Court held relying on a decision in York Corporation vs Henry Leethem & Sons Ltd. that the Corporation being under a 713 duty under the Act of 1936, expressed in imperative language, to make by laws for the disposal of refuse within the area of the port, the term for which the claimants contended, whether express or implied was ultra vires the corporation.
In York Corporation vs Henry Leetham & Sons (supra), the Corporation made two contracts with the defendants to which they agreed to accept, in consideration of the right to navigate the Oues, a regular annual payment of $ 600/ per annum, in place of the authorised tolls.
It was held that the contracts were ultra vires and void because under them the corporation had disabled itself whatever emergency might arise, from exercising its statutory powers to increase tolls as from time to time might be necessary.
The decision was based on the incapacity of a body charged with statutory powers for public purpose to divest itself of such powers or to fetter itself in the use of such powers.
In Commissioner of Crown Lands vs Page, in 1945, the Minister of Works, acting on behalf of the Crown and in exercise of powers conferred by the Defence (General) Regulations, 1939 requisitioned premises which had been demised in 1937 by the Commissioners of Crown Lands for a term of 25 years.
The premises were derequisitioned on September 5, 1945 until July 5, 1955 and the landlord brought proceedings claiming arrears of rent.
The lessee alleged that she had been evicted by the requisitioning and that, accordingly, payment of rent has been suspended.
It was conceded that the Crown was one and indivisible as lessor and requisitioning authority.
It was held that since the entry was by the Crown in the proper exercise of its executive authority, it did not amount to an eviction and rent, accordingly, continued to be payable.
The view expressed by Lord Denning, J. in Robertson vs Minister of Pensions (supra) that in the present day age no distinction should be drawn as to the legal effect of its or their actions between the Crown and the ordinary subjects, so that the effect of a representation made by the Crown could no longer be qualified so as to be subject to the future exercise by the Crown of its Executive authority, was relied on.
Lord Evershet M. R. while observing that the facts of the case were different held that the general proposition laid down by Denning L. J. was not accepted by the House of Lords in Howell vs Falmouth Boat Construction Co. Ltd. (supra).
Devlin, J. stated the principle in the following terms : "When the Crown, or any other person, is entrusted, whether by virtue of the prerogative or by statute, with discretionary powers to be exercised for the public good, it does not when making a private contract in general terms, undertake (and 714 it may be that it could not even with the use of specific language validly undertake) to fetter itself in the use of those powers, and in the exercise of the discretion.
" Referring to the view of Denning, L. J. in Robertson vs Minister of Pension (supra), the learned Judge observed : "The observations of Denning, L. J. in Robertson vs Minister of Pensions on the doctrine of `executive necessity ', were I think, directed to a case of that sort.
Here we are dealing with an act done for a general executive purpose, and not done for the purpose of achieving a particular result under the contract in question.
" In Southend on Sea Corporation vs Hodgson (Wickford) Ltd. a company wished to establish a builder 's yard and found suitable premises.
They wrote to the borough engineer, a Chief Official employed by the local planning authority asking for a lease of the premises for 20 years for the purpose of establishing a builders yard.
The engineer replied that the premises had an existing user right as a builders ' yard and that no planning permission was, therefore, necessary.
Relying on the borough engineer 's letter, the company bought the premises and started to use them as builder 's yard.
They would not have done so if, as a consequence of the letter, they had not thought that no further planning permission was required.
Later, the local planning authority notified the company that a considerable amount of evidence had been presented to them showing that the premises had not been used as a builder 's yard and had no existing user as such; that they had decided that the premises could not be used without planning permission.
The Court on the above facts held that assuming that the statement that the premises had an existing user right as a builder 's yard was a pure representation of fact, estoppel could not operate to hinder or prevent the exercise by the local planning authority of their statutory discretion under section 23 of the Act in deciding whether to serve an enforcement notice, since this discretion was intended to be exercised for the benefit of the public or section thereof.
The decisions of the English Courts referred to above clearly indicate that the English Courts did not accept the view of Denning, J. in Robertson vs Minister of Pensions (supra).
The house of Lords in Howell vs Falmouth Boat Construction Co. Ltd. disagreed with the view of Lord Denning, J holding that there could not be an estoppel against express provisions of the law nor could the State by its action waive its rights to exercise powers entrusted to it for the public good.
The 715 Privy Council in Antonio Buttigieg 's case approved the view of Rowlatt.
J. in Raderiaktiabolaget Amphtrits 's case with which Denning, J. did not agree.
We may now revert back to Indo Afghan Agencies case.
The Court after quoting a passage from Rowlatt, J. in Rederiakiabolaget Amphtrte vs The King (supra) agreed that the view expressed by Anson 's English Law of Contract 22nd Ed.
p. 174 that the observation is clearly very wide and it is difficult to determine its proper scope.
The Court quoted the passage of Denning, J. at p. 231 wherein the learned Judge expressed the disagreement with the view of Rowlatt, J : "The Crown cannot escape by saying that estoppel do not bind the Crown for that doctrine has long been exploded.
Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action.
The doctrine was propounded by Rowlatt, J. in Rederiaktiebolaget Amphitrite vs The King but it was unnecessary for the decision because the statement there was not a promise which was intended to be binding but only an expression of intention.
Rowlatt, J., seems to have been influenced by the cases on the right of the Crown to dismiss its servants at pleasure, but those cases must now all be read in the light of the judgment of Lord Atkin in Reilly vs The King , 179).
In my opinion the defence of executive necessity is of limited scope.
It only avails the Crown where there is an implied term to that effect or that is the true meaning of the contract." After quoting the above passage, the Court summarised the facts and decision rendered by Denning, J.
The decision of the House of Lords in Howell 's case or that of the Privy Council was not brought to the notice of the Court.
The law laid down by the House of Lords in Howell 's case has been accepted as correct by this Court in recent decision of this Court by a Bench of four Judges in Excise Commissioner, U. P. Allahabad vs Ram Kumar.
The respondents before this Court were the highest bidders in an auction for exclusive manufacture and selling of liquor in the State of U. P. Before holding the auction, the rates of excise duty and prices of different varieties of country liquor and also the conditions of licence were announced.
No announcement was made as to whether the exemption from sales tax in respect of sale of country liquor granted by the notification dated 6 4 1959 was or was not likely 716 to be withdrawn.
On the day following the day when the licences were granted, the Government of U. P. issued a notification under section 3A and 4 of U. P. Sales Tax Act, 1948 superseding the earlier notification exempting the payment of sales tax and imposing sales tax on the turnover in respect of country liquor at the rate of 10 paise per rupee.
The respondents challenged the validity of the notification issued under the Sales Tax Act on the ground that the State Government did not announce at the time of the earlier auction that the earlier notification was likely to be withdrawn.
This Court on a consideration of the question whether the State Government is estopped from levying the Sales Tax, after referring to the earlier decisions of this Court held that the State Government is not estopped or precluded from subjecting the sales of liquor to tax if it felt impelled to do so in the interest of revenue of the State.
The Court followed two earlier decisions of this Court viz. M. Ramanathan Pillai vs State of Kerala (supra) and State of Kerala vs The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. (supra).
In Ramanathan Pillai 's case, Ray, Chief Justice while dealing with the question whether the Government has a right to abolish a post in the service, observed that the power to create or abolish a post is not related to the doctrine of pleasure.
It is a matter of governmental policy.
Every sovereign Government has this power in the interest and necessity or internal administration.
The creation or abolition of a post is dictated by policy decision, exigencies of circumstances and administrative necessity.
The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public.
The learned Chief Justice after quoting a passage in American Jurisprudence 2d.
at p. 783, paragraph 123, observed that the estoppel alleged by the appellant Ramanathan Pillai was on the ground that he entered into an agreement and thereby changed his position to his detriment.
The High Court rightly held that the Courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owed a duty to the public against whom the estoppel cannot fairly operate.
In State of Kerala vs Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. (supra), Palekar, J. who delivered the opinion with which Krishna Iyer, J. and Bhagwati, J. agreed, rejected the contention that an agreement entered into by the Government with the parties, excluded the legislation on the subject.
The plea of equitable estoppel was put forward on the ground that the company established itself in Kerala for the production of rayon cloth pulp on an understanding that the Government would bind itself to supply the raw material.
Later Government was unable to supply the raw material and by an 717 agreement undertook not to legislate for the acquisition of private forests for a period of 60 years if the company purchased forest lands for the purpose of its supply of raw materials.
Accordingly, the company purchased 30,000/ acres of private forests from the Nilabhuri Kovila Kanna Estate for Rs. 75 lacs and, therefore, it was argued that the agreement would operate as equitable estoppel against the State.
This Court agreed with the High Court that the surrender by the Government of its legislative powers to be used for public good cannot avail the company or operate against the Government as equitable estoppel.
In Assistant Custodian of E. P. and Ors.
vs Brij Kishore Agarwala, it was pleaded that the first respondent made an enquiry from the Assistant Custodian whether the property was evacuee property and was told that it was not.
As the first respondent acted on this representation, it was pleaded that the Assistant Custodian was estopped from contending that the property was evacuee property.
Thus, dismissing this plea, the Court observed : "We do not consider that the fact that the 1st respondent had made an enquiry from the Assistant Custodian whether the property in question was an evacuee property and was told that it would not make any difference to the question." Reliance was placed on the observations of Denning L. J. in Robertson vs Minister of Pensions (supra), holding that the letter by the war office which assured that the appellant 's disability had been accepted as attributable to the military service, was binding on the Crown and through the Crown the Minister of Pensions.
The Court pointed out that the decision in Robertson vs Minister of Pensions had been disapproved by the House of Lords in Howell 's case.
After referring to the passage from the judgment of Lord Denning, Lord Simonds and Lord Normand which have been extracted earlier, this Court expressed its opinion that the view taken by the House of Lords it correct and not that is taken by Lord Denning.
In Excise Commissioner U. P., Allahabad vs Ram Kumar (supra), the Court after consideration of the case law on the subject, held that it was settled by a catena of cases that there could be no question of estoppel against the legislative and sovereign functions.
A passage in American Jurisprudence 2d.
at page 783 paragraph 123 was extracted by Ray C. J. in Ramanathan Pillai 's case and Jaswant 718 Singh J. in Excise Commissioner 's case.
The passage at p. 123 is as follows : "Generally, a State is not subject to an estoppel to the same extent as an individual or a private corporation.
Otherwise, it might be rendered helpless to assert its powers in Government.
Therefore, as a general rule the doctrine of estoppel will not be applied against the State in its Governmental, Public or sovereign capacity.
An exception however arises in the application of estoppel to the State where it is necessary to prevent fraud or manifest injustice.
" But the learned Judges did not include the last sentence : "An exception however arises in the application of estoppel to the State where it is necessary to prevent fraud or manifest injustice.
" In Bihar Eastern Gangetic Fisherman Co operative Society Ltd., vs Sipahi Singh & Ors.
this Court held that the respondent could not invoke the doctrine of promissory estoppel because he was unable to show that relying on the representation of the Government, he had altered his position to his prejudice.
The Court accepted the view of this Court expressed in Ram Kumar 's case and held that there cannot be any estoppel against the Government in the exercise of its sovereign, legislative or executive functions.
The leading case of the Supreme Court of the United States cited and relied upon in Ram Kumar 's case (supra), is Federal Crop Insurance Corporation vs Marril, in which the United States Supreme Court observed as follows : "It is too late in the day to urge that the Government is just another private litigant, for the purposes of charging it with liability, whenever it takes over a business theretofore conducted by private enterprises or engages in competition with private ventures * * * Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority * * * And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority* * * `Men must turn square corners when they deal with the Government ' does not reflect a callous outlook.
It merely 719 expresses the duty of all courts to observe the conditions defined by congress for charging the public treasury".
The Court also relied on the views of the text book writer Melville M. Bigelow and concluded that the plea of estoppel does not operate against the Government or its assignees.
The extract from the American Jurisprudence which summarises the American Law, and the decision in Federal Crop Insurance Corporation case, make it clear that the plea of estoppel is not available against the Government and its legislative or executive functions except for preventing fraud or manifest injustice.
It was submitted that the cases cited above cannot be relied on as an authority for the proposition that the doctrine of promissory estoppel is not applicable against the Government in the exercise of its legislative and statutory functions as they were in the nature of obiter dicta and that on the facts the present case could be distinguished.
The Indo Afghan Agencies, Century Spinning and Manufacturing Co. and Turner Morisson Co. Ltd. vs Hungerford Investment Trust Ltd., were strongly relied on.
We have pointed out that all that the Indo Afghan Agencies case laid down was, that a public authority acting on behalf of the Government cannot on its own whim and in an arbitrary manner seek to alter the conditions accepted by him to the prejudice of the other side.
The decision in terms accepts the view expressed in earlier cases that after taking into consideration the exigencies and change of circumstances, the authority can modify the conditions in exercise of his powers as a public authority.
In Century Spinning and Manufacturing Co. Ltd. and Anr.
vs The Ulhasnagar Municipal Council and Anr.
, the facts of the case is set out in the head note and may be briefly stated.
The State of Maharashtra on the representation made by certain manufacturers proclaimed the exclusion of the Industrial Area from the Municipal Jurisdiction.
The Municipality made representations to the State requesting that the proclamation be withdrawn, agreeing to exempt the factories in the industrial area from payment of octroi from the date of levy.
The State acceded to the request of the Municipality.
The appellants expanded their activities relying on the Municipality 's assurance.
The Maharashtra Municipalities Act was enacted and the municipality took over the administration.
Thereafter, the Municipality sought to levy octroi duty on the appellant amounting to about Rs. 15 lacs per 720 annum.
The High Court dismissed the petition in limini filed by the Industrialists against the levy of octroi.
In an appeal to this Court it was held that the High Court had not given any reason for dismissing the petition in limini and that on a consideration of the averments in the petition and the materials placed before the High Court, the appellants were entitled to have its grievance heard against the action of the Municipality which was prima facie unjust.
In remanding the matter to the High Court, this Court observed : "A representation that something will be done in future may involve an existing intention to act in future in the manner represented.
If the representation is acted upon by another person it may, unless the statute governing the person making the representation provides otherwise, result in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting thereupon but the law is not powerless to raise in appropriate cases an enquiry against him to compel performance of the obligation arising out of his representation".
In dealing with the question as to how far the public bodies are bound by representation made by them on which other persons have altered their position to their prejudice, the Court held that the obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a person who acts upon the promise; when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be if the contract be not in that form be enforced against it in appropriate case in equity.
The Court read the decision in Union of India and Ors.
vs Indo Afghan Agencies (supra) as holding that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudices, relying upon the representations as to its future conduct made by the Government.
This observation will have to be read alongwith the conditions that were laid down in the Indo Afghan case and cannot be read as holding that the rule of estoppel will be applicable against the Government in the exercise of its legislative and statutory powers.
The Court quoted the following passage from Denning J. : "Crown cannot escape by saying that estoppel do not bind the Crown for that doctrine has long been exploded.
Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action".
721 and observed that the Court in Indo Afghan case held that it was applicable to India.
It may be noted that apart from not noticing Howell 's case, the Court in Indo Afghan case did not say that the law as extracted from Denning J 'section judgment was applicable to India.
The Court after considering the Indo Afghan case and Howell 's case, expressed thus : "If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted.
A public body is, in our judgment, not exempt from liability to carry out its obligation arising out of representation made by it relying upon which a citizen has altered his position to his prejudice".
The third decision on which reliance was placed, for the proposition that doctrine of promissory estoppel is applicable against the State acting in exercise of its legislative or executive function is Turner Morrison and Co. Ltd. vs Hungerford Investment Trust Ltd. (supra).
The case related to the payment of tax due from Hungerford by Turner Morrison.
The Court observed that if for any reason Turner Morrison had not undertaken any responsibility to discharge the liability of Hungerford, the latter could have taken recourse to voluntary liquidation.
Hence there could be no doubt that acting on the basis of the representation made by Turner Morrison, Hungerford placed itself in a disadvantageous position.
Hungerford raised the plea that the resolution was of the company, afforded a good basis for raising a plea of promissory estoppel.
This plea was accepted by the Court relying on the observations of Denning J. in High Trees case (supra).
The later decision of the House of Lords in Howell 's case which disapproved Lord Denning 's judgment was not brought to its notice.
The scope of the plea of doctrine of promissory estoppel against the Government may be summed up as follows : (1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State.
(2) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law.
(3) When the officer of the Government acts outside the scope of his authority, the plea of promissory estoppel is not available.
The doctrine of ultra vires will come into operation and the Government cannot be held bound by the unauthorised acts of its officers.
(4) When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation 722 and a person acting on that representation puts himself in a disadvantageous position, the Court is entitled to require the officer to act according to the scheme and the agreement or representation.
The Officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undisclosed grounds of necessity or change the conditions to the prejudice of the person who had acted upon such representation and put himself in a disadvantageous position.
(5) The officer would be justified in changing the terms of the agreement to the prejudice of the other party on special considerations such as difficult foreign exchange position or other matters which have a bearing on general interest of the State.
Before we conclude, we would refer to a recent decision of this Court in M/s. Moti Lal Padampat Sugar Mills Co. (P.) Ltd. vs State of Uttar Pradesh and Ors.
It has been held that there can be no promissory estoppel against the exercise of legislative power and the legislature cannot be precluded from exercising its legislative functions by resort to the doctrine of promissory estoppel.
It has also held that when the Government owes a duty to the public to act differently, promissory estoppel could not be invoked to prevent the Government from doing so.
The doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law.
The Government would not be bound by the acts of its officers and agents, who act beyond the scope of their authority.
A person dealing with an agent of the Government must be held to have noticed all the limitations of his authority.
With respect, we are in complete agreement with the law as stated above but we find the judgment is not in accordance with the view consistently taken by this Court in some respects.
We have read the Judgment of Bhagwati, J. with considerable care and attention which it deserves.
Firstly, with great respect we are unable to construe the decision in Union of India & Ors.
vs M/s. Indo Afghan Agencies Ltd. case in the manner in which it has been done.
As pointed out by us, all that the case purports to lay down is that the court can enforce an obligation incurred by an authority on which another has acted upon and put himself in a disadvantageous position, when the authority resiles arbitrarily or on mere whim or on some undefined and undisclosed grounds of necessity.
With respect, we feel we are unable to agree with the interpretation put by Bhagwati, J. Bhagwati, J. states "The defence of executive necessity was thus clearly negatived by this Court and it was pointed 723 out that it did not release the Government from its obligation to honour the promise made by it, if the citizen acting in reliance on the promise, had altered his position.
The doctrine of promissory estoppel was in such a case applicable against the Government and it could not be defeated by invoking the defence of executive necessity.
" The same view has again been reiterated at page 682 where it is stated" The law may, therefore, now be taken to be settled as a result of this decision that where the Government makes a promise knowing or intending that it would be acted on by the promises and in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.
" These observations would be right if they are read with the qualifications, laid down in the Indo Afghan Agencies case and other cases.
The further observations of the learned Judge that: "Every one is subject to the law as fully and completely as any other and the Government is no exception.
It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned, the former is equally bound as the latter." Again "but if the Government makes such a promise and the promises acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private individual do not appear to convey the true effect of the decision.
" The decision of this Court in Century Spinning and Manufacturing Co. Ltd. and Anr.
vs The Ulhashagar Municipal Council and Anr.
(supra) was understood by Justice Bhagwati as refusing to make a distinction between the private individual and public body so far as the doctrine of promissory estoppel is concerned.
These observations would be correct only if they are read with the exceptions recognised by Justice Bhagwati himself elsewhere in his judgment along with other restrictions imposed by Judgments of this Court.
We find ourselves unable to ignore the three decisions of this Court, two by Constitution Benches M. Ramanatha Pillai vs The State of Kerala and Anr.
(supra) and State of Kerala and Anr.
vs The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc.
(supra) and the third by a Bench of four Judges of this Court in Excise Commissioner, U. P. Allahabad vs Ram Kumar (Supra) on the ground that the observations are in the nature of obiter dicta and that it cannot be insisted as intend 724 ng to have laid down any proposition of law different from that enunciated in the Indo Afghan Agencies case.
It was not necessary for this Court in the cases referred to above to refer to Union of India and Ors.
vs M/s. Indo Afghan Agencies Ltd., or if properly understood it only held that the authority cannot go back on the agreement arbitrarily or on its mere whim.
We feel we are bound to follow the decisions of the three Benches of this Court which in our respectful opinion have correctly stated the law.
We are also unable to read the case of the House of Lords in Howell vs Falmouth Boat Construction Co. Ltd. (supra) as not having overruled the view of Denning, J and as not having expressed its disapproval of the doctrine of promissory estoppel against the Crown nor overruled the view taken by Denning, J in Robertson vs Minister of Pensions that "the Crown cannot escape the obligation under the doctrine of promissory estoppel.
" We find ourselves unable to share the view of the learned Judge that the Constitution Bench of this Court in Ramanathan Pillai 's case (supra) heavily relied upon the quotation from the American jurisprudence para 123 p. 873 Vol. 28.
Again we feel to remark that "unfortunately this quotation was incomplete and had overlooked perhaps inadvertently" is unjustified (emphasis supplied).
We feel we are in duty bound to express our reservations regarding the "activist" jurisprudence and the wide implications thereof which the learned Judge has propounded in his judgment.
The first part of the judgment relates to the development of law relating to promissory estoppel in England following the High Trees case.
As pointed out by us earlier the doctrine of promissory estoppel is not very helpful as we are governed by the various provisions of the Indian Contract Act Sections 65 and 70 provide for certain reliefs in void contracts and in unenforceable contracts where a person relying on a representation has acted upon it and put himself in a disadvantageous position.
Apart from the case in Robertson vs Minister of Pensions, the House of Lords in Howell 's case and the Privy Council in Antonio Buttigieg 's case and the other English Authorities do not agree with the view that the plea of promissory estoppel is available against the Government.
Further we have to bear in mind that the Indian Constitution as a matter of high policy in public interest, has enacted Article 299 so as to save the Government liability arising out of unathorised acts of its officers and contracts not duly executed.
The learned Judge has considered at some length the doctrine of consideration and how it has thwarted the full development of the new equitable principle of promissory estoppel.
After discussing the American Law on the subject, he has observed that the leading text book 725 writers view with disfavour the importance given to "consideration".
The learned Judge proceeds to observe that : "having regard to the general opprobrium to which the doctrine of consideration has been subjected to by eminent jurists, we need not be unduly anxious to project this doctrine against assault of erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice.
" Here again we have to bear in mind that the Indian Contract Act regulates the right of parties, and expressly insists on the necessity for lawful consideration which cannot be dispensed with by invoking some equitable doctrine.
Section 10 of the Contract Act provides : "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
" It will be seen that for a contract to be valid, it should be for a lawful consideration.
Section 25 of the Contract Act provides that an agreement made without consideration is void unless it satisfies one of the conditions mentioned in this section.
The learned Judge has held that if the Government is to resist its liability it will have to disclose to the Court what are the facts and circumstances on account of which the Government claims to be exempted from the liability and it would be for the Court to decide whether these facts and circumstances are such as to render it inequitable to enforce the liability against the Government.
This statement will have to be read with the exceptions stated by the Learned Judge himself and those recognised by the decisions of this Court.
In C. Sankaranarayanan vs State of Kerala it was held that the power of the Government under Article 309 to make rules regulating the conditions of service of Government employees or of teachers of aided schools cannot in any way be effected by any agreement.
Rule of estoppel against Government cannot be invoked in such cases.
In Narendra Chand Hem Ram and Ors.
vs Lt. Governor Administrator Union Territory, Himachal Pradesh and Ors., this Court has laid down that the power to impose tax is undoubtedly a legislative power and that no Court can issue mandate to a legislature to enact a particular law and similarly no Court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact.
Again in State of Tamil 726 Nadu and Ors.
vs section K. Krishnamurthi etc.
this Court held that the policy of State to nationalise text books cannot be challenged by the publishers on the ground that the rules were in derogation of their rights.
It was held that the rules were in the nature of Departmental instructions and do not confer any right on the publishers nor are they designed to safeguard the interest of publishers and that the policy of nationalisation was conceived in public interest and as the Government is at liberty to change the text books and delete from and add to the list of approved text books and the publishers can have no grievance.
In M/s. Andhra Industrial Works vs Chief Controller of Imports and Ors., a four judges Bench of this Court held that an applicant for a permit under Import Trade Policy has no absolute right to the grant of import licence and that the applicant cannot complain that the existing instructions or orders made in pursuance of the Import and Export Control Act place "unreasonable restrictions" on the petitioners ' right to carry on trade or business.
These restrictions obviously have been imposed in the interests of the general public and national economy and with the development of imports, regulating foreign exchange have necessarily to be appropriately controlled and regulated.
Professor section A. De Smith in his Judicial Review on Administrative Action, 3rd Edn.
p. 279 sums up the position thus: "Contracts and Covenants entered into by the Crown are not to be construed as being subject to implied terms that would exclude the exercise of general discretionary powers for the public good: On the contrary they are to be construed as incorporating an implied term that such powers remain exercisable.
This is broadly true of other public authorities also.
But the status and functions of the Crown in this regard are of a higher order.
The Crown cannot be allowed to tie its hands completely by prior undertakings is as clear as the proposition that the Courts cannot allow the Crown to evade compliance with ostensibly binding obligations whenever it thinks fit: If a public authority lawfully repudiates or departs from the terms of a binding contract in order to exercise its overriding discretionary powers, or if it is held never to have been bound in law by an ostensibly binding contract because the undertakings would improperly fetter its general discretionary powers, the other party to the agreement has no right whatsoever to damages or compensation under the general law, no matter how serious the damages that party may have suffered." Professor H. W. R. Wade in Administrative Law Fourth Edn.
329 330 has pointed out that the doctrine of estoppel cannot be allowed to impede the proper exercise 727 of public and statutory functions by the State and public authorities.
In Public Law the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not in law possess.
In other words, no estoppel can legitimate action which is ultra vires.
As has been amply illustrated the Court is normally extremely careful to prevent any legal doctrine from impeding the exercise of statutory discretion in the public interest.
On a consideration of the decisions of this Court it is clear that there can be no promissory estoppel against the exercise of legislative power of the State.
So also the doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law.
The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority.
The Court can enforce compliance by a public authority of the obligation laid on him if he arbitrarily or on his mere whim ignores the promises made by him on behalf of the Government.
It would be open to the authority to plead and prove that there were special considerations which necessitated his not being able to comply with his obligations in public interest.
In a fervent plea for the doctrine to speak in all its activist magnitude the learned Judge observes "that is no reason why this new principle, which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and not allowed to operate in all the activist magnitude, so that it may fulfil the purpose for which it was conceived and born".
It is no doubt desirable that in a civilised society man 's word should be as good as his bond and his fellow men should be able to rely on his promise.
It may be an improvement if a cause of action would be based on a mere promise without consideration.
The law should as far as possible accord with the moral values of the society, and efforts should be made to bring the law in conformity with the moral values.
What are the moral values of the Society ? This is a very complex question because the concept of moral values amongst different persons and classes of persons is not always the same.
The concept of moral values is not static one.
It differs from time to time and from society to society.
It is hazardous for a Court to attempt to enforce what according to it is the moral value.
As pointed out by Roscoe Pound: "It leads to an attempt to enforce overhigh ethical standards and to make legal duties out of moral duties which are not sufficiently, tangible to be made effective by the machinery of the legal order.
A more serious difficulty is that the attempt to identify 728 law and morals gives too wide a scope to judicial discretion".
The question is how should it be brought about.
The learned Judge says that it should be the constant endeavour of the Courts and the legislature to close the gap between the law and morality and bring about as near an approximation between the two as possible.
Lord Denning might have exhorted the Judges not to be timorous sours but to be bold spirits, ready to allow a new cause of action if justice so requires.
These are lofty ideals which one should steadfastly pursue.
But before embarking on this mission, it is necessary for the Court to understand clearly its limitations.
The powers of the Court to legislate is strictly limited.
"Judges ought to remember that their office is jus dicere and not jus dare to interpret law, and not to make law or give law." Chandrachud, C. J. Speaking for a Constitution Bench in Shri Gurbaksh Singh Sibbia etc.
vs State of Punjab, has clearly pointed out the limited powers of the Courts to make laws in construing the provisions of the statutes.
The Learned Chief Justice has observed: "The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein *** Our answer, clearly and emphatically is in the negative.
" Again the Learned Chief Justice warned "Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.
And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket.
" "Therefore, even if we were to frame a 'code for the grant of anticipatory bail ', which really is the business of the legislature, it can at best furnish broad guide lines and cannot compel blind adherence".
The Courts by its very nature are most ill suited to undertake the task of legislating.
There is no machinery for the Court to ascertain the conditions of the people and their requirements and to make laws that would be most appropriate.
Further two Judges may think that a particular law would be desirable to meet the requirements whereas another two Judges may most profoundly differ from the conclusions arrived at by two Judges.
Conscious of these handicaps, the law requires that even an amendment of the Supreme Court Rules which 729 govern the procedure to be adopted by it for regulating its work, can only be effected by the whole Court sitting and deciding.
The result is that so far as the recommendation of the Municipal Committee to the Government to levy octroi duty, is concerned though it is contrary to the representation it made to the buyers of the sites in the Mundi, the Municipality is not estopped as the representation made by it was beyond the scope of its authority.
The levy of tax being for a public purpose i.e. for augmenting the revenues of the Municipality as laid down in Ram Kumar 's case, the plea of estoppel is not available.
The order of the Government directing the levy of octroi in pursuance of the resolution of the Municipality cannot also be challenged as it is in the exercise of its statutory duty.
The result is both the appeals fail and are dismissed with costs of one set to be borne equally by the two appellants.
section R. Appeals dismissed.
| IN-Abs | The Municipal Committee of Bahadurgarh, respondent No. 2 established Mandi Fateh in Bahadurgarh Town with a view to improve trade in the area.
The Municipal Committee decided that the purchasers of the plots for sale in the Mandi would not be required to pay octroi duty on goods imported within the said Mandi.
A resolution (No. 8) dated 20 12 1916 was passed by the Municipality to this effect.
Hand bills were issued for the sale of the plots on the basis of the resolution and it was proclaimed that Fateh Mandi would remain exempt from payment of octroi.
Subsequently by resolution No. 4 dated 20 5 1917, the Municipal Committee decided that the term No. 14 to the conditions of sale, namely, that the purchasers of plots would not be required to pay octroi, be amended to the effect that the Mandi shall remain immune from payment of octroi duty for ever.
When the resolution was received by the Commissioner of Ambala, in paragraph 3 of his letter dated 26 6 1917, he minuted that the undertaking by the Municipal Commissioner never to impose octroi duty in the Mandi was ultra vires and therefore the purchasers of the plots should be informed so that they may withdraw from the purchases.
On receipt of this letter the President of the Municipal Committee made representations that if octroi duty was to be levied, there would be no purchasers for the plots and the entire scheme would fall through.
On this, the Commissioner revised his earlier view and withdrew his objection by further observing that "as soon as the market is established it will be necessary to consider what form of taxation is best to cover the market share of municipal expenses".
The Municipal Committee on 10 3 1919 imposed house tax of Rs. 3 14 6 per cent per annum on the shopkeepers to cover the expenditure of the market.
This state of affairs continued till 4 9 1953 when the Municipal Committee by notification No. 9697 C 53/63830 dated 4 9 1953 included Fateh Mandi, Bahadurgarh, within the octroi limits.
The Examiner of Local Funds pointed out that the Municipal Committee is under obligation to charge octroi on goods imported into Fateh Mandi.
The President of the Municipal Committee made a representation to the Deputy Commissioner on 24 2 1954.
The Municipal Committee again passed another resolution No. 1 dated 2 3 1954 that the Fateh Mandi will remain free from octroi duty according to the terms of the proclamation of the sale relating to the sale of plots.
The matter was referred to Punjab State which after thoroughly examining the whole matter, confirmed Resolution No. 1 passed by the Municipal Committee on 2 3 1954, Subse 690 quently, the Municipal Committee changed its mind and by its resolution dated 8 5 1954, resolved that octroi duty should also be levied on the goods imported into Fateh Mandi.
But this resolution was annulled by the Punjab Government under section 236 of the Punjab Municipal Act.
The Examiner of Local Funds Accounts in the meantime insisted on the levy of octroi duty on the goods imported into Fateh Mandi and the Punjab Government after discussing the issue on 9 4 1956 informed the President of the Municipal Committee that the Government 's action in confirming the resolution No. 1 of 2 3 1954 of the Municipal Committee, Bahadurgarh exempting goods imported into Fateh Mandi from levy of octroi duty under section 70(2)(c) of the Municipal Act, 1911, is quite in order and that no separate notification to this effect was necessary under the rules.
Again on 21 7 1965, the Municipal Committee Bahadurgarh resolved that the Government be requested to cancel Resolution No. 1 dated 2 3 1954.
The State of Haryana Respondent No. 1 which came into existence on 1 11 64 under the Punjab Reorganisation Act, by its memo dated 13 10 1967 approved the resolution No. 6 dated 21 7 65 of the Municipal Committee and cancelled the Municipal Resolution No. 1 of 2 3 1964.
As a result of the decision of the Government, the Municipal Committee started charging octroi duty on the goods imported into the Mandi.
On these facts, the petitioners submitted that the resolution No. 6 of the Municipal Committee dated 21 7 1965 (Annexure 6) and approval granted by the Haryana State as per its order dated 30 10 1967 (Ann.
H) were illegal and ultra vires and without jurisdiction.
A Full Bench of the High Court rejected the petition mainly on three grounds.
Firstly, it found that the State Government is entitled under section 62 A of Punjab Act, 48/1953 to direct the Municipal Committee to impose octroi duty and as such even if the municipality is found to have erred in imposing the Octroi Duty, the legislative powers of the State cannot be questioned.
Secondly, it found, that it was not within the competence of the Municipality to grant any exemption from payment of octroi duty and this act was ultra vires of its powers and cannot be enforced.
Thirdly, it found that the Court cannot go into the question as to whether the petitioners ' plea based on equity that the Municipality is bound, cannot be gone into far want of adequate facts.
The High Court however granted certificates to the appellants.
Dismissing the appeal, the Court ^ HELD: 1.
Under section 62 A of the Punjab Municipal Act.
1911 as amended by Punjab Act 43/1958 the State Government is empowered to impose octroi duty and under sub clause (b) if the committee fails to carry cut the order of the Government, the State Government may impose octroi Duty.
Under section 70(2)(c), a Municipal Committee by a resolution passed at a special meeting and confirmed by the State Government may exempt in whole or in part from payment of any such tax any person or class of persons or any property or description of property.
In exercise of those powers, the State Government had by its order dated 4 5 1954 confirmed resolution No. 1 passed by the Municipal Committee in its special meeting held on 2 3 1954 regarding the exemption of goods imported into Fateh Mandi from levy of octroi Duty.
Subsequently, in reply to the objection raised by the Examiner of Local Funds, the Government pointed out by its letter dated 9 4 1956 (Ann. F) that the Government 's action confirming the resolution No. 1 dated 2 3 1954 of the Municipal Committee exempting Goods imported into Fateh Mandi, under section 70(2)(c) of 691 the Punjab Municipal Act, 1911, was quite in order.
By the impugned order dated 20 10 1967 the Government approved the resolution No. 6 of the Municipal Committee dated 21 7 1965 and permitted the Municipality to levy the octroi Duty.
Therefore, the action taken by the State Government is strictly in conformity with the powers conferred on it under section 70(2)(c) of the Act.
It exempted the petitioners from payment of octroi Duty for a particular period and ultimately withdrew the exemption.
The action of the Government cannot be questioned as it is in exercise of its statutory functions.
The plea of estoppel is not available against the State in the exercise of its legislative or statutory functions.
The Government have power to direct the Municipality to collect the octroi Tax if the Municipality fails to take action by itself under section 60(A) (3).
Further, even on facts, this plea is not available as against the Government as it is not the case of the petitioners that they acted on the representation of the Government.
[698 E H, 699 A C] 2.
The Municipality is not estopped from levying or recommending the levy of the tax to the Government even though in the proclamation of sale it was notified that no octroi duty would be levied and it was only in pursuance of such representation the appellants purchased the property because the Municipal Committee had no authority to exempt the Fateh Market from the levy of Octroi duty.
If the Municipal Committee had passed a resolution or issued a notification that no octroi duty will be levied, it will be ultra vires of the powers of the Municipal Committee.
When a public authority acts beyond the scope of its authority the plea of estoppel is not available to prevent the authority from acting according to law.
It is in public interest that no such plea should be allowed.
Further, in the instant case, the appellants are not entitled to any enforceable legal right under the terms of the Municipal Act, since non production of any sale deed executed by the Municipal Committee in favour of the purchasers raises the only presumption that the contract between the parties have not been proved to have been reduced in writing and executed in the manner prescribed under section 47 of the Municipality Act, 1911 (Act 3 of 1911).
[699 C E 700 B D] 3.
Article 299(1) of the Constitution of India corresponding to Section 175 (3) of the Government of India Act, 1935 provides that all contracts made in the exercise of executive powers of the Union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such contracts and assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
The provisions of this Article is mandatory and not directory, is enacted as a matter of public policy that the State should not be saddled with liability for unauthorised contracts and is enacted in the public interest.
The provisions are embodied on the ground of public policy on the ground of protection of general public.
[700 F H, 701 A B] Seth Bhikraj Jaipuria vs Union of India, ; ; Mulam Chand vs State of M.P., Karamshi Jethabhiai Samrayya vs State of Bombay, ; ; referred to.
The scope of the plea of doctrine of promissory estoppel against the Government is as follows: (a) The plea of promissory estoppel is not available against the exercise of the legislative or executive functions of the State.
There could not be estoppel 692 against express provisions of the law nor could the State by its action waive its rights to exercise powers entrusted to it for the public good.
[721 F] Antonio Buttigieg vs Captain Stephen H. Cross and ors.
AIR 1907 PC; Adants vs London Improved Motor Coach Builders, [821] 1 K.B. 495, York Corporation vs Henry Leethan and Sons Ltd., ; William Cory and Sons Ltd. vs London Corporation, ; Howell vs Falmouth Boat Construction Co. Ltd., ; Commissioner of Crown Lands vs Page, ; South end on Sea Corporation vs Hodgson (Wickrord) Ltd., ; Federal Insurance Corpn.
vs Marril, 382 U.S. 380; quoted with approval.
Robertson vs Minister of Pensions, dissented from.
Assistant Custodian of E.P. and ors.
vs Brij Kishore Agarwala, ; ; Bihar Eastern Gangetic Fishermen Cooperative Society vs Sipahi Singh & ors. ; ; applied.
Union of India vs Indo Afghan Agencies, ; ; Century Spinning & Manufacturing Co. Ltd. and Anr.
vs Ulhas Nagar Municipal Council and anr., [1970] 3 SCR 854; Turner Morrison Co. Ltd. vs Hungerford Investment Trust Ltd., ; ; explained and distinguished.
Collector of Bombay vs Municipal Corporation of the City of Bombay and ors.
,[1952] SCR p. 43; Excise Commr.
U.P., Allahabad vs Ram Kumar, [1976] Supp.
SCR 532; M. Ramanatha Pillai vs State of Kerala, ; ; State of Kerala and Anr.
vs The Gwalior Manufacturing (Wvg.) Co. Ltd.; , ; followed.
(b) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law.
[721 G] (c) When an officer of the Government acts outside the scope of his authority, the plea of promissory estoppel is not available.
The doctrine of ultra vires will come into operation and the Government cannot be held bound by the unauthorised acts of its officers.
[721 G H] (d) When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the Courts is entitled to require the officer to act according to the scheme and the agreement or representation.
The officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undisclosed grounds of necessity or change the conditions to the prejudice of the person who had acted upon such representation and put himself in a disadvantageous position.
[721 G H, 722 A B] Union of India vs Indo Afghan Agencies Ltd., ; ; discussed and followed.
(e) The officer would be justified in changing the terms of the agreement to the prejudice of the other party on special considerations such as difficult foreign exchange position or other matters which have a bearing on general interest of the State.
[722 B C] Union of India vs M/s Indo Afghan Agencies Ltd., ; applied.
693 5.
It is only in public interest that it is recognised that an authority acting on behalf of the Government or by virtue of statutory powers cannot exceed his authority.
Rule of ultra vires will become applicable when he exceeds his authority and the Government would not be bound by such action.
Any person who enters into an arrangement with the Government has to ascertain and satisfy himself that the authority who purports to act for the Government, acts within the scope of his authority and cannot urge that the Government is in the position of any other litigant liable to be charged with liability.
[705 G H, 706 A] 6.
The doctrine of estoppel which burst out into sudden blaze in 1946 and ever since continuing to smoulder due to the consistent maintenance of the original author 's interest in its further development, now in this direction and now in that, though interesting is not relevant in administering Indian Law.
Section 63 of the Contract Act which provides that when a creditor accepts a lesser sum in satisfaction of the whole debt, the whole debt becomes discharged is a wide departure from the English law as laid down in Jordan vs Monye.
The doctrine of estoppel referred to in High Trees case is to some extent taken care of by section 65 and 70 of the Indian Contract.
Section 65 provides that when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it.
Under section 70 of the Contract Act.
an obligation is cast on the person enjoying benefit of a non gratutious act to compensate the person who lawfully performed the Act.
[707 A, 708 B, D F] Foakes vs Beer, ; ; Jordan vs Money, [1854] 5 H.L. Cas 185; Fenner vs Blake, ; Woodhouse Ltd. vs Nigerian Produce Ltd., , In Re. Wickham William Porter and Co. Ltd., [1937] 2 All.
E.R. 361; Central London Property Trust Ltd. vs High Trees House Ltd., ; referred to.
The provisions of Section 70 of the Indian Contract Act are applicable to contract which is not according to Section 175 of the Government of India Act and Article 299 of the Constitution of India.
[708 G H] State of West Bengal vs B. K. Mondal and Ors., [1962 Supp.
SCR p. 876; New Marine Coal Co. Ltd. vs Union of India.
; ; referred to.
All that the Indo Afghan Agencies case laid down was that a public authority acting on behalf of the Government cannot on its own whim and in an arbitrary manner seek to alter the conditions accepted by him to the prejudice of the other side.
The decision in terms accepts that after taking into consideration the exigencies and change of circumstances the authority can modify the conditions in exercise of his powers as a public policy.
Apart from not noticing Howell 's case, the Court in Indo Afghan 's case did not say that the law as extracted from the judgment in Robertson 's case by Denning J. was applicable to India.
[719 D E, 721 A] 9.
The Judgment in M/s Motilal Padampat Sugar Mills Co. (P) Ltd. vs State of Uttar Pradesh, [1979] 2 SCR p. 641 is not in accordance with the view consistently taken by the Supreme Court in following respects : [722 F] (i) The decision in the case of Union of Indian vs M/s Indo Afghan Agencies Ltd., ; cannot be constructed in the manner in which it was 694 done.
All that the Indo Afghan case purports to lay down is that the Court can enforce an obligation incurred by an authority on which another has acted upon and put himself in a disadvantageous position, when the authority resiles arbitrarily or on mere whim or on some undefined and undisclosed grounds of necessity.
[722 F G] (ii) The decision of this Court in Century Spinning and Manufacturing Co. Ltd and Anr.
vs The Ulhasnagar Municipal Council and Anr., [1970] 3 SCR 854 was understood as refusing to make a distinction between the private individual and public body so far as the doctrine of promissory estoppel is concerned.
[723 F] (iii) The three decisions of this Court, two by Constitution Benches M. Ramanatha Pillai vs State of Kerala, State of Kerala vs The Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd. and the third by a Bench of four judges in Excise Commissioner, U.P. Allahabad vs Ram Kumar cannot be ignored on the ground that the observations are in the nature of obiter dicta and that it cannot be insisted as intending to have laid down any proposition of law different from that enunciated in the Indo Afghan Agencies case.
It was not necessary for this Court in the three cases to refer to Union of India & others vs Indo Afghan Agencies.
If properly understood it only held that the authority cannot go back on the agreement arbitrarily or on its own whim.
[723 H, 724 A B] (iv) The case of the House of Lords in Howell vs Falmouth Boat Construction Co. Ltd. cannot be read as not having overruled the view of Denning J. and as not having expressed its disapproval of the doctrine of promissory estoppel against the crown in Robertson vs Minister of Pensions.
[724 B C] (v) The Indian Constitution as a matter of high policy in public interest has enacted Article 299 so as to save the Government from liability arising out of unauthorised acts of its officers and contracts not duly executed.
Sections 65 and 70 of the Indian Contract Act provide for certain reliefs in void contracts and in unenforceable contracts where a person relying on a representation has acted upon it and put himself in a disadvantageous position.
The activist jurisprudence and the wide implications thereof, propounded in the Motilal Padampat, Sugar case doubted.
[724 E, F, G] (vii) The Indian Contract Act regulates the right of parties and expressly insists on the necessity for lawful consideration which cannot be dispensed with by invoking some new equitable doctrine.
Under Section 10 of the Contract Act, for a contract to be valid, it should be for a lawful consideration and Section 25 of the Contract Act provides that an agreement made without consideration is void unless it satisfies one of the conditions mentioned in that section.
[725 B C, D] (viii) Sankaranarayan vs State of Kerala, ; ; Narendra Chand Hem Ram and Ors.
vs Lt. Governor Administration, Union Territory of Himachal Pradesh, ; ; State of Tamil Nadu and Ors. etc.
vs section K. Krishnamurthi etc.
; , ; and M/s Andhra Industrial Works vs Chief Controller of Imports and Ors., ; indicate that the Rule of estoppel against Government cannot be invoked against the Government.
What are the moral values of the society is a complex question because the concept of moral values amongst different persons and classes of persons is not always the same.
Being not a state one, it differs from time to time and from society to society.
It is hazardous for a Court to attempt to enforce what according to it is the moral value.
Before embarking on the mission of "closing the gap between the law and morality and bring about as near an approximation between the two as possible", it is necessary for the Court to understand clearly its limitations.
The powers of the Court to legislate is strictly limited.
"Judges ought to remember that their office is jus dicere and not jus dare to interpret the law, and not to make law or give law".
[727 F, G, 728 A C] The courts by its very nature are most ill suited to undertake the task of legislating.
There is no machinery for the Court to ascertain the condition of the people and their requirements and to make laws that would be most appropriate.
Further two judges may think that a particular law would, be desirable to meet the requirements whereas another two judges may most profoundly differ from the conclusions arrived at by two judges.
[728 G H, 729 A] Shri Gurbaksh Singh Sibbia etc.
vs State of U.P., [1908] 3 SCR p. 383 followed.
|
ition No. 461 of 1979.
(Under Article 32 of the Constitution) Dr. Y. section Chitale, R. Mohan, P. N. Ramalingam and A. T. M. Sampath for the Petitioner.
A. V. Rangam for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
The Tamil Nadu Commercial Taxes Service consists of a hierarchy of posts.
At the base lies the post of Joint Commercial Tax Officer, above it is the post of Commercial Tax Officer, then of Assistant Commissioner, thereafter of Deputy Commissioner and 779 finally there is the post of Selection Grade Deputy Commissioner.
The service is governed by the Special Rules for the Tamil Nadu Commercial Taxes Service (the "Special Rules").
Recruitment to the junior most post, the Joint Commercial Tax Officer, is made by (i) direct recruitment and (ii) recruitment by transfer from Deputy Commercial Tax Officers in the State Commercial Taxes Subordinate Service.
Permanent vacancies in the posts of Joint Commercial Tax Officer are filled by direct recruitment and by "transfer" recruitment in the proportion 1:2.
The higher posts are filled by promotion from officers in the category of posts immediately below.
Under rule 2(b) of the Special Rules all promotions are to be made on the grounds of merit and ability, seniority being considered only where merit and ability are equal.
Rule 5(c) provides that every person appointed as a Joint Commercial Tax Officer must be on probation for at least two years on duty; in the case of direct recruitment the probationary period commences from the date on which the Officer completes his training, and in the case of recruitment by transfer it commences from the date the officer joins duty.
Under rule 7(b) the period of training of a direct recruit does not count towards probation.
The petitioner was recruited to the cadre of Joint Commercial Tax Officers as a direct recruit in 1966, and was posted for training which he joined on 6th June, 1966; thereafter he completed the probationary period of two years.
On 16th August, 1972 the petitioner was promoted to the post of Commercial Tax Officer.
The second respondent was promoted as Commercial Tax Officer on 17th December, 1972.
Promotion to the next higher category of posts, the Assistant Commissioners, followed.
The petitioner was promoted as Assistant Commissioner on 14th January, 1976 while the second respondent was promoted on 26th August, 1976.
Meanwhile, by G.O. Ms. No. 4103 dated 9th July, 1973 the Government passed an order notifying the combined inter se seniority list of directly recruited Joint Commercial Tax Officers during the years 1964 to 1967 and the transferee Joint Commercial Tax Officers recruited during the years 1964 and 1966 on the basis of the principles set forth in that order.
The seniority list reflected the cyclical order based on rule 2(c) of the Special Rules, that is to say, (i) direct recruit (ii) transferee recruit (iii) transferee recruit.
The petitioner was shown in the "1966 list" at serial No. 43 of the overall seniority list and 18th August, 1967 was shown as the date of commencement of his probation.
The second respondent was also shown in the 1966 list, at serial No. 52 with 25th January, 1967 as the date of commencement of his probation.
780 The validity of the combined inter se seniority list was challenged by two writ petitions, Writ Petitions Nos. 2016 and 2017 of 1972 filed by certain other officers in respect of the ranking from serial number 51 to serial Number 78.
The petitioner was not a party to the writ petitions.
The writ petitions were allowed by the Madras High Court by its judgment dated 16th September, 1975.
The High Court took note of the fact that no rules had been framed indicating how the inter se seniority between the direct recruits and the transferee recruits had to be fixed.
The High Court quashed the seniority list and directed a fresh determination of the inter se seniority on the basis of three principles: 1.
Each year should be taken as a unit for fixing the inter se seniority.
Persons not actually appointed in the year 1966 should not be included in the 1966 year 's list and their seniority should be determined with reference to the date of their joining as Joint Commercial Tax Officers; and 3.
The date on which an officer commences probation is the proper criterion for fixing the inter se seniority.
Taking those principles into account, the Government then prepared a fresh combined inter se seniority list and published it by an order set forth in G.O. No. 2228 dated 27th December, 1977.
The second respondent was now shown at serial number 48 and the petitioner was shown at serial number 49 in the 1967 list.
The petitioner, apprehensive that the seniority assigned to him in the second combined inter se seniority list of Joint Commercial Tax Officers would prejudice him in the promotions to be made to the category of Deputy Commissioners, has challenged the validity of that seniority list.
The petitioner contends that the High Court has no power to lay down the principles for determining inter se seniority between direct recruits and transferee recruits and, in any event, his seniority cannot be determined on the basis of the principles laid down by the High Court inasmuch as he was not a party to the writ petitions.
The petitioner also takes exception to the statement contained in paragraph 16 of the State Government 's counter affidavit to the effect that the seniority of a Government Officer in the lower category is also the basis for assigning seniority in the higher category.
Great emphasis has been laid by the petitioner on the circumstance that he joined as Joint Commercial Tax Officer earlier than the second respondent.
781 In our opinion, the principles which the High Court culled out as the basis for determining the inter se seniority of Joint Commercial Tax Officers are in the main drawn from the rules governing the service.
The petitioner cannot claim that for the purpose of seniority has service must be considered with reference to the date on which he commenced the period of training.
The special Rules require that a direct recruit must undergo a period of training.
They also provide that he must pass through a period of probation.
They further declare that the period of training will not count as a period spent on probation and that the probationary period commences only when the training ends.
That being so, the relevant date for considering the petitioner 's seniority is 18th August, 1967.
The rules do not contemplate any credit being given for the period of training undergone by a direct recruit and, therefore, the fact that he was appointed in 1966 is of little moment.
The second respondent joined the post of Joint Commercial Tax Officer as a transferee recruit and therefore the date of commencement of his probation was 25th January, 1967.
Clearly, he entered service effectively from an earlier date than the petitioner.
Now having regard to the circumstance that the cadre of Joint Commercial Tax Officers is drawn both from direct recruits and transferee recruits, it is necessary to have a single combined inter se seniority list.
There can be no quarrel with the principle that officers whose effective entry into the service pertains to a particular year should be regarded as a unit in themselves for fixing their inter se seniority.
Correctly, therefore, the petitioner and the second respondent have been placed in the 1967 list.
We have already observed that the effective date on which a direct recruit joins as a Joint Commercial Tax Officer is the date on which he commences his probation.
In the determination of inter se seniority, the High Court has followed the provision in the Special Rules that the posts of Joint Commercial Tax Officers are to be filled in the proportion of 1 : 2 between direct recruits and transferee recruits.
The cyclical order in which the vacancies will be filled on that basis are provided by the order of the Government published in G.O. Ms. No. 4103 dated 9th July, 1973.
Where the rules are specifically silent there is no doubt that the Government is entitled to make an order filling up any lacuna or uncovered gap in the rules.
It may also be observed that there is good reason in the principle followed in this case that seniority should be based on the length of effective service.
The date of confirmation in a post then loses its relevance.
In regard to the contention of the petitioner that he was not a party to the writ petitions decided by the High Court and that, therefore, the 782 principles laid down in the High Court judgment should not be applied to him, we think the submission to be without force.
The principles propounded by the High Court are principles of general application and drawn from the rules governing the service and the concepts implied therein.
They are not principles applicable peculiarly only to the parties to the writ petitions.
Indeed, we find no fault with the terms in which the principles have been enunciated.
They are principles which could legitimately form the basis of a combined inter se seniority list in respect of Joint Commercial Tax Officers.
Having due regard to the considerations mentioned above, we are of opinion that the places assigned in the second seniority list to the petitioner and the second respondent truly represent their relative seniority.
We may also observe that the second seniority list was prepared after issuing notice to the petitioner and affording him an opportunity to be heard in the matter.
It was after all the objections had been considered that the list was finally drawn up.
As regards the point whether the seniority of the petitioner in the category of posts higher than the category of Joint Commercial Tax Officers should be determined on the basis of his seniority as Joint Commercial Tax Officer, that is a question which does not arise presently.
No combined inter se seniority list in respect of the cadre of Assistant Commissioners or of higher posts appears to have been drawn up.
There is no material before us to show that it has and, if it has, what is the position of seniority assigned to the petitioner therein.
In the circumstances we think it premature to express any opinion on this point.
The second seniority list was prepared on 27th December, 1977.
The writ petition was filed in this Court in May, 1979.
The gross delay, plainly apparent, would constitute another ground for denying relief to the petitioner.
But as, in our judgment, the petitioner fails on the merits we need not go further into the question of laches.
The petition fails and is dismissed, but in the circumstances there is no order as to costs.
| IN-Abs | Under the Special Rules of the Tamil Nadu Commercial Taxes Service, recruitment to the junior most post, Joint Commercial Tax Officer is made by direct recruitment and recruitment by transfer from Deputy Commercial Tax Officers in the State Commercial Taxes Subordinate Services in the proportion 1:2.
The higher posts are filled by promotion from officers in the category of posts immediately below.
Under Rule 2(b) all promotions are to be made on the grounds of merit and ability, seniority being considered where merit and ability are equal.
Rule 5(c) provides that every person appointed as a Joint Commercial Tax Officer must be on probation for at least two years on duty; in the case of direct recruitment the probationary period commences from the date on which the officer completes his training and; in the case of recruitment by transfer it commences from the date the officer joins duty.
Under rule 7(b), the period of training of a direct recruit does not count towards probation.
The petitioner was recruited to the Cadre of Joint Commercial Tax Officer as a direct recruit in 1966 and was posted for training which he joined on 6th June 1966; he commenced his period of probation on 18th August 1967.
On 16th August 1972, the petitioner was promoted to the post of Commercial Tax Officer and on 14th January 1976 he was promoted as Assistant Commissioner.
The second respondent joined the post of Joint Commercial Tax Officer as a promotee on 25th January 1967 and commenced his probation from that date.
He was promoted as Commercial Tax Officer on 17th December 1972 and as Assistant Commissioner on 26th August 1976.
In the combined inter se seniority list issued in G.O.Ms.
No. 4103 dated 9th July 1973, herein the petitioner and the second respondent were shown in the 1966 list at serial numbers 43 and 52 respectively.
The validity of the combined inter se seniority list was challenged in two writ petitions Nos. 2016 and 2017 of 1972 filed by certain other officers in respect of the ranking from serial numbers 51 to serial number 78.
The petitioner was not a party to the writ petition.
The writ petition was allowed by the Madras High Court.
The High Court took note of the fact that no rules had been framed indicating how the inter se seniority between the direct recruits and the transferee recruits had to be fixed and therefore directed a fresh determination of the inter se seniority on the basis of three principles: (i) Each year should be taken as a unit for fixing the inter se seniority; (ii) Persons not actually appointed in the year 1966 should not be included in the 1966 year 's list 778 and their seniority should be determined with reference to the date of their joining as Joint Commercial Tax Officers; and (iii) The date on which an officer commences probation is the proper criterion for fixing the inter se seniority.
In the new combined inter se seniority list, so prepared and issued by the Government in their order No. G.O. Ms. No. 2228 dated 27th December 1977, both the second respondent and the petitioner were shown at serial number 48 and serial No. 49 respectively in the 1967 List.
The petitioner, apprehending that the seniority assigned to him in the second combined inter se seniority list of Joint Commercial Tax Officers would prejudice him in the promotions to be made to the category of Deputy Commissioners has challenged the validity of that seniority list.
Dismissing the petition, the Court ^ HELD: 1.
Where the rules are specifically silent there is no doubt that the Government is entitled to make an order filling up any lacuna or uncovered gap in the rules.
There is good reason in the principle followed in this case that seniority should be based on the length of effective service.
The date of confirmation in a post then loses its relevance.
[781 F G] 2.
The principle that officers whose effective entry into the service pertains to a particular year should be regarded as a unit in themselves for fixing their inter se seniority is valid.
Correctly, therefore, the petitioner and the second respondent have been placed in the 1967 List.
Since the Special Rules do not contemplate any credit being given for the period of training undergone by a direct recruit and the probationary period commences only when the training ends, the year of appointment is of little moment.
[781 B C, D E] 3.
The principles propounded by the High Court are principles of general application and drawn from the rules governing the service and the concepts implied therein.
They are not principles applicable peculiarly only to the parties to the writ petitions.
They are principles which could legitimately form the basis of a combined inter se seniority list in respect of Joint Commercial Tax Officers.
The places assigned to the petitioner and the second respondent duly represent their relative seniority.
The second seniority list was prepared after issuing notice to all including the petitioner and prepared after considering objections raised.
[782 A C]
|
Appeal No. 313 of 1955.
Appeal by special leave from the judgment and order dated the 12th May 1955 of the Punjab High Court at Chandigarh in Liquidation Miscellaneous No. 72 of 1954.
J. B. Dadachanji.
and Rameshwar Nath, for the appellant.
M. C. Setalvad, Attorney General for India and Ratanlal Chowla, for the respondent.
1956 May 9.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against an order of the High Court of Punjab dated the 12th May, 1955, in the following circumstances.
The appellant was a resident of Lahore who came over to India in or about November, 1947, and took up residence at Banaras as a displaced person.
He 605 had, prior to the 15th August, 1947, a fixed deposit of Rs. 1,00,000 in the Lahore Branch of the Simla Banking and Industrial Co. Ltd. (hereinafter referred to as the Bank) which had its head office at Simla.
He had also at the time a cash credit account in the Bank.
The fixed deposit matured in 1948.
The Bank did not pay the amount to the appellant in spite of repeated demands but seems to have adjusted it towards part payment of a sum of Rs. 4,00,000 which is alleged to have been due from the appellant to the Bank in his cash credit account and which the appellant disputed and denied.
On the 7th November, 1951, the (LXX of 1951) was passed providing certain facilities and reliefs to displaced debtors and displaced creditors.
Section 4 of that Act empowered the State Government to specify any civil court or class of civil courts, ,As the Tribunals having authority to exercise jurisdiction under the Act for areas to be defined therein.
Section 13 of the Act enabled a displaced creditor claiming a debt from any person who is not a displaced person to make an application for recovery thereof to the Tribunal having local jurisdiction in the place where the said creditor resides, and provided for the purpose a special limitation of one year from the date when the Act came into force.
Admittedly the appellant is a displaced person, and the Bank is not a displaced Bank, within the meaning of those expressions as defined in the said Act.
Taking advantage of these provisions, the appellant filed on or about the 24th April, 1952, an application (Case No. I of 1952) to the Tribunal at Banaras constituted under section 4 of the Act, claiming the fixed deposit amount of Rs. 1,00,000 as a debt due from the Bank.
During the pendency of this proceeding there was an appli cation on the 27th December, 1952, under the Indian Companies Act, 1913 (VII of 1913) in the High Court of 'Punjab by some creditors for the winding up of the Bank.
On the 29th December, 1952, an ex parte interim order was passed by the High Court under section 171 of the Indian Companies Act staying proceedings in all suits and applications pending against 606 the Bank, at the time.
The application Case No. I of 1952 filed by the appellant before the Banaras Tribunal was also specified therein.
It would appear however that before the order was communicated to the Tribunal, the said case before it was disposed of and a decree was passed on the 3rd January, 1953, against the Bank for the sum claimed with future interest at three per cent.
per annum.
On the 6th January, 1953, the appellant filed an application before the Tribunal for execution of the decree and it was numbered as Execution Case No. 8 of 1953.
It appears that on or about the 27th January, 1953, one Mr. D. D. Dhawan was appointed by the Punjab High Court as a Provisional Liquidator of the Bank.
On the application of certain petitioning creditors in the winding up proceedings, the High Court passed another order under section 171 of the Indian Companies Act on the 30th January, 1953, staying execution of the decree against the Bank obtained by the appellant.
This order also does not appear to have been communicated to the Tribunal by the Court.
But the Tribunal was informed generally about the situation by a letter of the Provisional Liquidator dated the 13th March, 1953.
Thereby, the attention of the Tribunal was invited to section 171 of the Indian Companies Act which enacted that pending proceedings could not be proceeded with except with the leave of the Court.
The Tribunal was accordingly requested by this letter of the Liquidator to stay further proceedings before it in Case No. I of 1952.
In view of this intimation, the Tribunal passed an order dated the 20th March, 1953, staying execution, notwithstanding a further application by the appellant dated the 16th March, 1953, to proceed with the execution.
On the 21st March, 1953, the Provisional Liquidator filed an appeal in the Allahabad High Court against the decree of the Tribunal obtained by the appellant against the Bank.
That appeal is said to be still pending.
On the 24th September, 1953, the winding up of the Bank was finally ordered by the Company Judge and the Provisional Liquidator was appointed as the Official Liquidator for the purpose.
607 It is said that as against this order of a single Judge, there is a Bench appeal now pending in the High Court of Punjab.
At this stage the Banking Companies (Amendment) Ordinance, 1953, (Ordinance No. 4 of 1953), was promulgated on the 24th October, 1953.
This was repealed and substituted, on the 30th December, 1953, by the Banking Companies (Amendment) Act, 1953 (LII of 1953).
On the 17th February, 1954, the appellant filed a further application before the Tribunal asking that the execution case filed be fore the Tribunal on the 6th January, 1953, which was stayed in view of the letter of the Liquidator dated the 13th March, 1953, should now be proceeded with having regard to the various reasons set out in that application.
Curiously enough two of the reasons alleged were (1) that section 171 of the Indian Companies Act was overridden and varied by section 45 C of the Banking Companies (Amendment) Ordinance (Act), and (2) that the Tribunal Under the is not a Court and hence the stay under section 171 of the Indian Companies Act or under section 45 C of the Banking Companies Act has no application to proceedings pending before the Tribunal.
The application of the 17th February, 1954, above mentioned also prayed for an order to send the case for execution to the Bombay High Court on the ground that the Bank had property within the local limits of the jurisdiction of the said High Court against which it was intended to seek execution.
On this application, notice was issued to the Official Liquidator to appear and show cause by the 24th April, 1954.
The Liquidator however did not appear.
The Tribunal made an order on the 24th April, 1954, transferring to the Bombay High Court under section 39 of the Code of Civil Procedure the said decree for execution.
On the 8th June, 1954, the appellant filed an application for execution before the Bombay High Court (Application No. 123 of 1954) and asked for attachment and sale of the right, title and interest of the Bank in certain shares and securities belonging to the Bank and lying with the Central Bank of India Ltd., Bombay subject to the charge if 608 any on the said Bank.
The attachment was ordered on the 18th June, 1954 and was affected on or about the 19th June, 1954.
At this stage the Official Liquidator obtained an order on the 26th June, 1954, from the Punjab High Court purporting to be one under section 45 C of the Banking Companies Act, transferring from the Court of the Banaras Tribunal, the proceedings before it for execution of the decree in Case No. 1 of 1952, obtained.
against the Bank by the appellant.
It would appear that the Tribunal, on receipt of this order, informed the High Court by letter dated the 14th July, 1954, that the execution proceedings had already been transferred to the High Court of Bombay and that no proceedings relating to the execution case were at the time pending before it.
Thereafter the Liquidator made an application dated the 28th October, 1954, to the Punjab High Court for setting aside the order of the Bombay High Court dated the 18th June, 1954, directing attachment of the shares and securities be longing to the Bank in the possession of the Central .Bank of India Ltd. Bombay.
The main grounds on which this application was made are (1)That the order of the Tribunal at Banaras in execution Case No. 8 of 1953, transferring the decree for execution to the Bombay High Court more than six months after the passing of the winding up order, without obtaining leave from the Punjab High Court,was null and void.
(2)That the proceedings taken in execution against the Bank in the Bombay High Court were also null and void in view of sections 171 and 232 of the Indian Companies Act.
(3)That in view of the Banking Companies (Amendment) Act, 1953, it is only the Punjab High Court that has exclusive jurisdiction to entertain and decide all claims between the Bank and the appellant and to deal with the execution proceedings initiated by the appellant against the Bank.
(4)That the execution proceeding was in fact transferred by the Punjab High Court to itself by its order dated the 25th June, 1954, and all questions 609 arising therefrom have to be dealt with and disposed of by the Punjab High Court itself.
The appellant contested this application in the Punjab High Court on various grounds.
The main contentions were (1)That the provisions of the Banking Companies Act could not override the provisions of the , and that the proceedings thereunder are not affected by the Banking Companies Act.
(2)That in any case there was no valid order of transfer to the Punjab High Court of the execution proceeding relating to the decree obtained by him against the Bank in the Banaras Tribunal.
These contentions were negatived by the Punjab High Court.
It was held that the provisions of the Banking Companies Act of 1953 had an overriding effect and that exclusive jurisdiction was vested thereby in the appropriate High Court notwithstanding anything in.
It was also held that there was a valid order of transfer to the Punjab High Court, of the execution proceedings taken by the appellant in respect of his decree.
It was therefore held that the order of attachment obtained by the appellant from the Bombay High Court was invalid.
The said order was accordingly set aside.
It is against this order that the present appeal has been brought.
Both the above contentions have been strenuously urged before us on behalf of the appellant and equally strenuously opposed on behalf of the Bank.
The learned Attorney General for the Bank placed reliance on section 232 of the Indian Companies Act at the forefront of his argument and pointed out that under the said section no attachment could have been made without leave of the Court when the Bank was in the process of being wound up by order of the Court.
On the other side it has been suggested that neither section 171 nor section 232 of the Indian Companies Act are applicable to these proceedings in view of the Banking Companies Act as amended in 1953.
This suggestion,proceeds on a misconception and ignores 610 section 2 of the Banking Companies Act which specifically provides that the provisions of the Act shall be in addition to and not in derogation of the Indian Companies Act as expressly provided.
Hence no leave under section 232 of the Indian Companies Act having been obtained, this might have been enough to dispose of the case against the appellant if the order of attachment had been set aside by the Bombay High Court itself, on the application of the Liquidator to it.
Since in this case the order to set aside attachment was passed by the Punjab High Court, the question has to be gone into as to the jurisdiction of that Court to interfere with the order of the Bombay High Court or to declare it to be void.
That jurisdiction can only be supported on the view, that exclusive jurisdiction over the matter was vested in the Punjab High Court, under the Banking Companies Act, and that a valid order of transfer of the execution proceeding to the said Court had been made in exercise of the powers under that Act.
These questions have, therefore, to be dealt with.
On the facts above stated one matter is clear, viz., that the attempt of the appellant is to realise the amount due to him under the decree by getting at the assets of the Bank which is under liquidation ignoring the purported adjustment of the deposit made by the Bank towards its alleged dues from him under his cash credit account.
His proceeding to execute the decree by attachment is in substance an attempt to constitutes himself an independent preferential creditor.
So far as the decree is concerned, we wish to say nothing about its validity or otherwise since the matter is pending in appeal before the Allahabad High Court.
What we are concerned with now is the proceeding in execution of that decree and the appellant 's attempt to get at the assets of the Bank in satisfaction thereof.
There can be no doubt that,, apart from any argument available under the , which will be considered presently, the matters which must necessarily arise in the course of such an execution proceeding are matters which would directly fall 611 within the scope of section 45 B of the Banking Companies Act as amended in 1953 which runs as follows: "The High Court shall, save as otherwise expressly provided in section 45 C, have exclusive jurisdiction to entertain and decide any claim made by or against a banking company which is being wound up (including claims by or against any of its branches in India) or any application made under section 153 of the Indian Companies Act, 1913 (VII of 1913) by or in respect of a banking company or any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of a banking company, whether such claim or question has arisen or arises or such application has been made or is made before or after the date of the order for the winding up of the banking company or before or after the commencement of the Banking Companies (Amendment) Act, 1953".
There has been some faint argument before us that the questions that arise in execution in this case and particularly the question relating to attachment which has been effected by the Bombay High Court, are not questions which fall ' within the scope of section 45 B.
In our opinion this contention is so obviously untenable, in view of the very wide and comprehensive language of the section that, it requires no more than to be mentioned and rejected.
If, therefore, the proceeding to execute the decree obtained by the appellant in this case and the claims and matters which must necessarily arise in the course of that execution fall within the scope of section 45 B, the execution proceeding in this case would prima facie be within the exclusive jurisdiction of the High Court under section 45 B subject to the two questions that have been raised in the case which are (1) whether there is anything in the , which overrides this jurisdiction, and (2) whether in view of the fact that the original execution application to the Tribunal was made before the Banking Companies (Amendment) Ordinance and Act of 1953, came into force.
, there has been any valid order under section 45 C of 612 the Banking Companies Act by the Punjab High Court transferring the pending execution proceeding to it self.
So far as the first of the above questions is concerned, learned counsel for the appellant relies on sections 3 and 28 of the .
Section 28 declares that the civil court which passed the decree as a Tribunal shall be competent to execute it.
Section 3 runs as follows: "3.
Overriding effect of Act, rules and orders:Save as otherwise expressly provided in this Act, the pro visions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any decree or order of a court, or in any contract between the parties".
On the strength of these sections learned counsel for the appellant argues that the jurisdiction, which the Tribunal has under section 28 for executing the decree must prevail over the jurisdiction of the High Court in respect of this matter under section 45 B of the Banking Companies Act.
On the other hand, the respondent relies on section 45 A of the Banking Companies Act, which runs as follows: "The provisions of this Part and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in the Indian Companies Act, 1913 (VII of 1913), or the Code of Civil Procedure, 1908 (Act V of 1908), or the Code of Criminal Procedure, 1898 (Act V of 1808), or any other law for the time being in force or any instrument having effect by virtue of any such law but the provisions of any such law or instrument in so far as the same are not varied by, or inconsistent with, the provisions of this Part or rules made thereunder shall apply to all proceedings under this Part".
Now the question as to which of the provisions of these two Acts has got overriding effect in a given case, where a particular provision of each is equally applicable to the matter is not altogether free from difficulty.
In the present case, prima facie by virtue 613 of section 28 of the the jurisdiction to execute the Tribunal 's decree is in the Tribunal.
But it is equally clear that the jurisdiction to decide any of the claims which must necessarily arise in the execution of the decree is vested in the High Court by virtue of section 45 B of the Banking Companies Act.
Each of the Acts has a specific provision, section 3 in the and section 45 A in the Banking Companies Act, which clearly indicates that the relevant provision, if applicable, would have overriding effect as against all other laws in this behalf.
Each being a special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case.
In support therefore of the overriding effect of the of 1951 as against section 45 B of the Banking Companies Act, learned counsel for the appellant called in aid the rule that a later Act overrides an earlier one.
(See Craies on Statute Law, pages 337 and 338).
He urged that the Banking Companies (Amendment) Act of 1953 should be treated as part of the 1949 Banking Companies Act and hence overridden by the of 1951 and relied on the case in Shamarao V. Parulekar vs The District Magistrate, Thana, Bombay(1) and on the passage therein at page 687 which is as follows: "The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a, part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all".
Now there is no question about the correctness of this dictum.
But it appears to us that it has no application to this case.
It is perfectly true as stated therein that whenever an amended Act has to be (1) (1952) S.O.R. 683.
614 applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it.
This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended 'part or in the amended part.
But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act.
That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication.
the facts of that case the question that was considered arose in the following circumstances.
There was an order of detention under the Preventive Detention Act of 1950.
That Act was due to expire on the 1st April, 1951.
But there were subsequent amendments of the Act which extended the life of the Act up to 1st October, 1952.
The amending Act provided inter alia that detention orders which had been confirmed previously and which were in force immediately before the commencement of the amending Act "shall continue to remain in force for so long as the principal act is in force".
The question for consideration was whether this indicated the original date of expire of the principal Act or the extended date of the principal Act.
The Court had no difficulty in holding that it obviously related to the latter, notwithstanding that the principal Act was defined as meaning "Act of 1950".
It was pointed out that the phrases "principal Act" and "Act of 1950" have to be understood after the amendment as necessarily meaning the 1950 Act as amended, i.e., which was to expire on the 1st October, 1952.
In the present case what we are concerned with is not the meaning of any particular phrase or provision of the Act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the Act.
For such a purpose the amendment cannot obviously be treated as having been part of the original Act itself so as to 615 enable the doctrine to be called in aid that a later Act overrides an earlier Act.
On the other hand, if the rule as to the later Act overriding an earlier Act is to be applied to the present case, it is the Banking Companies (Amendment) Act, 1953,.
that must be treated as the later Act and held to override the provisions of the earlier .
It has been pointed out, however, that, section 13 of the , uses the phrase "notwithstanding anything inconsistent therewith in any other law for the time being in force" and it was suggested that this phrase is wide enough to relate even to a future Act if in operation when the overriding effect has to be determined.
But it is to be noticed that section 45 A of the Banking Companies Act has also exactly the same phrase.
What the connotation of the phrase " 'for the time being" is and which is to prevail when there are two provisions like the above each containing the same phrase, ate questions which are not free from difficulty.
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 underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.
Now so far as the Banking Companies Act is concerned its purpose is clearly, as stated in the heading of Part III A, for speedy disposal of winding up proceedings.
It is a permanent statutory measure which is meant to impart speedy stability to the financial credit structure in the country in so far as it may be effected by banks under liquidation.
It was pointed out in Dhirendra Chandra Pal vs Associated Bank of Tripura Ltd.(1) that the pre existing law relating to the winding up of a company.
involved considerable delay and expense.
This was sought to be obviated so far as Banks are concerned by vesting exclusive jurisdiction in the appropriate High Court in respect of all matters arising in relation to or in the course of (1) 616 winding up of the company and by investing the provisions of the Banking Companies Act with an overriding effect.
This result was brought about first by the Banking Companies (Amendment) Act, 1950 and later by the Banking Companies (Amendment) Act, 1953.
Sections 45 A and 45 B of Part III brought in by the 1950 Act vested exclusive jurisdiction in, the appropriate High Court to decide all claims by or against a Banking Company relating to or arising in the course of winding up.
But sections 45 A and 45 B of the Part III A substituted by 1953 Act are far more comprehensive and vest not.
merely exclusive jurisdiction but specifically provide for the overriding effect of other provisions also.
Now, the is one of the statutory measures meant for relief and rehabilitation of displaced persons.
It is meant for a temporary situation brought about by unprecedented circumstances.
It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose.
It is by and large a measure for the rehabili tation of displaced debtors.
Notwithstanding that both the Acts are important beneficial measures, each in its own way, there are certain relevant differences to be observed.
The first main difference which is noticeable is that the provisions in the are in a large measure enabling and not exclusive.
There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfied with the reliefs which an ordinary civil court can give him in the normal course.
It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal 's jurisdiction comes into operation.
At this point it is necessary to notice the further difference that exists in the between applications by displaced debtors and ap 617 plications by displaced creditors against persons who are not displaced persons.
So far as the applications by displaced debtors are concerned, section 15 in terms provides for certain consequences arising, when the application is made to the Tribunal by a displaced debtor under section 3 or section 5(2), i.e., stay of all pending proceedings, the cessation of effect of any interim orders or attachments, etc.
and a bar to the institution of fresh proceedings and so forth.
But the terms of section 13 relating to the entertainment of an execution proceeding by the said Tribunal on a decree so obtained, do not appear to bring about even the kind of consequences which section 15 contemplates as regards applications by displaced debtors.
Section 13 is, in terms, only an enabling section and section 28 merely says that "it shall be competent for the civil court to execute the decree passed by it as a Tribunal".
They are not couched in terms vesting exclusive jurisdiction in the Tribunal.
Whatever, therefore, may be the inter se, position, in a given case, between the provisions of the Banking Companies Act and the provisions of the , in so far as such provisions relate to displaced debtors, we are unable to find that the jurisdiction so clearly and definitely vested in the High Court by the very specific and comprehensive wording of section 45 B of the Banking Com panies Act with reference to the matters in question, can be said to be overridden or displaced by anything in the , in so far as they relate to displaced creditors.
It is also desirable to notice that so far as a claim of a displaced creditor against a non displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may ' have been time barred), (2) a decree can be obtained on a mere application, i.e., without having to ' incur the necessary expenses byway of court fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has 80 618 jurisdiction over the place where he resides, i.e., a place more convenient 'to him than if be had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises.
There may also be a few other minor facilities.
But what is necessary to notice is that the overriding provision of the Banking Companies Act, so far as a displaced creditor is concerned, is substantially only as regards jurisdiction.
Section 45 A thereof, while providing that the provisions of Part III A and the rules made there under shall have effect notwithstanding anything in consistent therewith in any other law for the time being in force, specifically provides that "the provisions of any such law in so far as the same are not varied by or inconsistent with, the provisions of that part or rules made thereunder, shall apply to all proceedings under that Part".
Therefore, in the present case the overriding effect of section 45 B of the Banking Companies Act deprives him only of the facility of pursuing his execution in the jurisdiction of the Tribunal.
But there is no reason why he should not get the benefit of other provisions, if any, which may give him an advantage and are not inconsistent with any of the other specific provisions of the Banking Companies Act.
Having regard to all the above con siderations and the wide and comprehensive language of sections 45 A and 45 B of the Banking Companies Act, we are clear that a proceeding to execute the decree obtained by the appellant from the Tribunal against the Bank in Case No. I of 1952 and all other incidental matters arising therefrom such as attachment and so forth are matters within the exclusive jurisdiction of the Punjab High Court subject to the provisions of section 45 C of the Banking Companies Act as regards pending matters.
This leads us to the question whether in terms of section 45 C there has been a valid transfer of the execution proceeding to the Punjab High Court.
Before dealing with this question it is necessary to notice the argument that section 45 C of the Banking Companies Act has no application at all to a pro 619 ceeding pending before the Tribunal.
The argument is that section 45 C applies only to a proceeding pending in any other Court immediately before the commencement of the Banking Companies (Amendment) Act.
It is urged that the Tribunal under the is not a Court.
In support thereof the judgment of one of the learned Judges in Parkash Textile Mills Ltd. vs Messrs Muni Lal Chuni Lal(1) has been cited to show that the Tribunal constituted under this Act is not a Court.
The question that arose in that case was a different one, viz., as to whether the Tribunal had the exclusive jurisdiction to determine for itself the preliminary jurisdiction on facts and it is for that purpose the learned Judge attempted to make out that a Tribunal was a body with a limited jurisdiction, which limits were open to be determined by a regular court when challenged.
It is unnecessary for us to consider whether the view taken by the learned Judge was correct.
No such question arises in this case and we are quite clear that the Tribunal which is to exercise the jurisdiction for executing the decree in question is "a Court" within the scope of section 45 C of the Banking Companies Act.
Section 28 of the itself is reasonably clear on that point.
That section runs as follows: "It shall be competent for the civil court which has been specified as the Tribunal for the purposes of this Act to execute any decree or order passed by it as the Tribunal in the same manner as it could have done if it were a decree or order passed by it as a civil court".
It is quite clear on the wording of this section that it is a civil court when it executes the decree, whatever may be its status when it passed the decree as a Tribunal.
There is, therefore, no substance in this argument.
Now coming to the question whether there has been a valid transfer of the execution proceedings to the Punjab High Court, there can be no doubt that the (1) 620 execution proceeding filed by the appellant before the Tribunal on the 6th January, '1953, continued to remain pending by the date when the Banking Companies (Amendment) Act, 1953, came into operation.
This appears from the subsequent applications dated the 16th March, 1953, and the 17th February, 1954, which always relied on the earlier application of the 6th January, 1953, as the main pending application.
This application was, therefore, a pending application for the purposes of section 45 C of the Banking Companies Act.
The jurisdiction of the Punjab High Court with reference to this execution proceeding must depend upon whether or not there was a valid order of transfer of this proceeding to itself under section 45 C.
This section contemplates, in respect of pending proceedings that (a) the Official Liquidator is to make a report to the High Court concerned within the time specified in sub section (2) thereof, (b) the High Court is to consider which out of these pending proceedings it should transfer to itself, and (c) the High Court should pass orders accordingly.
It further provides by sub section (4) thereof that as regards such of the pending proceedings in respect of which no such order of transfer has been made the said proceeding shall continue in the Court in which it is pending.
It is with reference to these provisions that on the 23rd November, 1953, the Official Liquidator appears to have submitted a report to the Punjab High Court, requesting that certain proceedings mentioned in lists A and B attached to the said report should be transferred to the High Court under section 45 C(3).
List A pertains to suits and List B to applications under the Displaced Persons 'Debts Adjustment) Act, 1951.
It is pointed out that list B which shows an application before the Tribunal under section 19 of the , does not show the execution application under section 28 of that Act then pending in the Banaras Tribunal and with which we are concerned.
It is strenuously urged that this shows that there was no application for transfer of this proceeding to the Punjab High Court and that, therefore, there could 621 have been no transfer thereof and that accordingly by virtue of section 45 C(4) of the Banking Companies Act the jurisdiction in respect of the execution proceeding continued to be with the Tribunal.
It is urged that since sub section (4) of section 45 C enjoins that such proceeding "shall be continued" in the Court in which the proceeding was pending, there can be no question of any transfer thereafter.
It is pointed out that the view of the High Court that there has been a valid transfer to itself is based on an order passed on an alleged supplementary report by the Liquidator on the 25th June, 1954, which is beyond the three months ' time provided in section 45 C (2) and that such an.
order of transfer is invalid.
It is also urged that the transfer so made was without notice to the appellant.
That there was in fact an order of transfer made by the Punjab High Court specifically of this execution proceeding with which we are concerned admits of no doubt as a fact.
This is also admitted by the appellant in his application for special leave.
The order itself is not before us nor are the exact circumstances under which this order came to be made, clearly on the record.
So far as one can gather from the papers before us the position seems to be this.
When the appellant filed his application to the Tribunal on the 17th February, 1954 (by which he asked that its order dated the 20th March, 1953, staying execution proceedings should be vacated for reasons shown therein) notice to show cause against it and for appearance therefor on the 24th April, 1954, was sent to the Official Liquidator by the Tribunal.
The Official Liquidator not having appeared on that date, the Tribunal, as already stated, passed the order as prayed for on the 24th April 1954, transferring the execution to the Bombay High Court.
It may be mentioned at this stage that an argument has been advanced that the Liquidator, not having appeared on notice, can no longer challenge the validity of the continuance of the execution proceeding by the Tribunal and of the subsequent attachment by the Bombay High Court.
The question, however, is one 622 of jurisdiction depending on the validity of transfer made by the High Court under statutory power.
The argument is without substance.
To resume the narrative, the Official Liquidator on receiving notice, addressed a letter dated the 19th March, 1954, to the Company Judge of the Punjab High Court mentioning the fact that he, received a notice from the Banaras Tribunal to appear and show cause on the 24th April, 1954.
He mentioned therein his doubt as to the jurisdiction of the Tribupal to entertain the application and requested that in order to avoid inconvenience and expenditure an immediate transfer of the execution case together with the appellant 's application to the Tribunal for vacating the stay order should be made by the High Court in exercise of the powers conferred on it by section 45 C of the Act.
On this the learned Judge appears to have passed an order dated the 22nd March, 1954, issuing notice to the appellant for appearance on the 2nd April, 1954.
This appears to have been adjourned from time to time and it would appear that on the 25th June, 1954, to which date the matter stood adjourned, the Liquidator addressed another letter to the Company Judge, which is referred to in the record as the supplementary report of the Liquidator.
Therein he only narrated the entire history of the suit and of the execution proceeding and the circumstances which rendered it necessary that an order of transfer should be made immediately.
Probably this was meant for opposing any further adjournment.
It appears at any rate that it was on this date that the order of transfer was passed.
All the facts stated above can be gathered from the two letters of the Liquidator dated the 19th March, 1954, and the 25th June, 1954, and a further note of the Liquidator put up to the Company Judge with reference to the letter dated the 14th July, 1954, received from the Tribunal which is all the relevant material included in the paper book before us.
The actual date of the note does not appear from the record.
Unfortunately neither the original order of the Judge made on the report of the Liquidator dated the 23rd November, 1953, nor the order of 623 transfer relating to this particular case, which appears to have been made on the 25th June, 1954, on the letter of the Liquidator dated the 19th March, 1954, are before us.
We do not know the exact terms in which those orders were made and the reason why no specific order of transfer was made on the first report and why an additional order of transfer was made as appears so late as on the 25th June, 1954.
In any case the argument on behalf of the appellant on this part of the case seems to be based on a misapprehension of the facts.
If, as appears, the order of the 25th June, 1954, was made with reference to the letter of the Liquidator dated the 19th March, 1954, a fact which appears ears to be admitted by the appellant in para 16 of his application for leave to appeal to this Court and what is called supplementary report dated the 25th June, 1954, was nothing more than bringing additional facts to the notice of the Court by way of the history of the execution proceeding, there appears to be no foundation in fact for the contention that the order was made on a report filed beyond three months provided under section 45 C(2) of the Banking Companies Act.
Sub section (2) of section 45 C provides that "the Official Liquidator shall, within three months from the date of the winding up order or the commencement of the Banking Companies (Amendment) Act, 1953, whichever is later, or such further time as the High Court may allow, submit to the High Court a report containing a list of all such pending proceedings together with particulars thereof".
The letter of the Official Liquidator dated the 19th March, 1954, is within three months of the commencement of the Banking Companies (Amendment) Act, 1953, which came into force on the 30th December, 1953, and there is nothing in subsection (2) of section 45 C that two or more successive reports may not be made within the prescribed period of three months.
It appears also from the papers above referred to that notice was issued to the appellant with reference to this letter of the 19th March, 1954, of the Liquidator to transfer the execution application to itself.
It appears to us, therefore, 624 from such record as is before us, that the contention of the appellant raising objection to the validity of the order of transfer is untenable on the facts. ' Nor, are we satisfied that even if the facts as to how the order of transfer dated the 25th June, 1954, came to be made are shown to be otherwise than above stated, there is any reason to think that sections 45 C(2), (3) and (4) are to be construed so as to make the power of the Court to transfer dependent on the filing of a report by the Liquidator strictly within three months.
The various sub sections, taken together seem to imply the contrary.
Section 45 C(1) definitely imposes a bar on any pending matter in any other court being proceeded with except in the manner provided therein.
The jurisdiction of that other Court to proceed with a pending proceeding is made to depend on the fact that its pendency is brought to the notice of the appropriate High Court and its decision, express or implied, to leave it out without transferring it to itself.
Having regard to the scheme and policy of sections 45 B and 45 C of the Banking Companies Act, it appears more reasonable to think that in respect of a pending matter which was not in fact brought to the notice of the Court by the Liquidator within the three months, there is nothing to prevent the Court exercising its power of transfer at such time when, it is brought to the notice of the Court.
It is, however, unnecessary to decide that point finally in this case since, to gay the least, all the facts and the requisite records have not been properly placed before us.
We have been asked to send for all the relevant records in order to ascertain the facts correctly or to give an opportunity for the purpose.
We do not think it right to do so in the circumstances of this case.
It is necessary to point out, as admitted by the appellant in his application for special leave that there has been an application to this Court dated the 16th October, 1954, for the grant of special leave specifically as against the order of transfer of the Punjab High Court made on the 25th June, 1954, but that application 'Was rejected.
It 625 has been suggested that while so rejecting, this Court left the matter open.
There is nothing to substantiate it.
Therefore, an argument as to the invalidity of the order of transfer cannot be entertained at this stage.
For all the above reasons we are satisfied that the view taken by the High Court that it bad exclusive jurisdiction in respect of the present matter and that there was a valid transfer to itself by its order dated the 25th June, 1954, is correct.
In the proceedings before the High Court a good deal has been made as to the alleged suppression of .material facts by the appellant from the Bombay High Court, in obtaining the impugned order of attachment from that Court and the learned Judge 's order also indicates that be was to some extent influenced thereby.
It appears to us that the alleged suppression has no bearing on the questions that arose for decision before the learned Judge, on this appli cation.
The learned Attorney General frankly conceded the same.
We have been told that there has been some application for contempt in the Court on the basis of the alleged suppression.
We do not, therefore, wish to say anything relating to that matter which may have any bearing on the result of those proceedings.
In the result this appeal is dismissed with costs.
Appeal dismissed.
| IN-Abs | The appellant, a displaced person, bad a fixed deposit in the Lahore Branch of the respondent Bank which had its head office at Simla, and he also had at the time a cash credit account in the Bank.
As the Bank refused to pay the amount of fixed deposit on its maturity but adjusted it towards part payment of the amount said to be due from him, he filed an application to the Tribunal at Banaras under section 4 of the , claiming the amount of the fixed deposit as a debt due from the Bank.
During the pendency of the application there were proceedings taken for winding up the Bank in the High Court of Punjab.
On the 3rd January 1953 a decree was passed by the Tribunal and the appellant filed an application before it for execution of the decree, which, ultimately, was transferred to the Bombay High Court under the provisions of the Code of Civil Procedure.
The appellant 's application before the Bombay High Court for the attachment of the property belonging to the Bank and situate in Bombay was ordered on the 18th June 1954.
On the 26th June 1954 the Official Liquidator of the Bank obtained an order from the Punjab High Court purporting to be one under section 45 C of the Banking Companies Act, transferring to itself from the Court of the Banaras Tribunal the proceedings before it for execution of the decree obtained against the Bank by the appellant, and subsequently the order of attachment passed by the Bombay High Court was set aside by the High Court of Punjab on the ground that (1) the provisions of the Banking Companies Act as amended in 1953 had an overriding effect, and that exclusive jurisdiction was vested in the Punjab High Court notwithstanding anything in the Displaced Persons (Debts Adjustment) Act, 1951 and (ii) there was a valid order of transfer to the Punjab High Court, of the execution proceedings taken by the appellant in respect of his decree.
The appellant appealed to the Supreme Court.
Held, that (1) in view of the wide and ' comprehensive language of sections 45 A and 45 B of the Banking Companies Act, 1949, as 604 amended in 1953, the proceeding to execute the decree obtained by the appellant from the Tribunal against the Bank and all other incidental matters arising therefrom are within the exclusive jurisdiction of the Punjab High Court; (ii) whatever may be the inter se position between the provisions of the Banking Companies Act and those of the in so far as such provisions relate to displaced debtors, the jurisdiction clearly and definitely vested in the High Court by the very specific and comprehensive wording of section 45 B of the Banking Companies Act cannot be said to be overridden or displaced by anything in the , in so far as they relate to displaced creditors; (iii) the Tribunal which is to exercise the jurisdiction for executing the decree in question is a "court" within the meaning of section 45 C of the Banking Companies Act, whatever may be its status when it passed the decree as a Tribunal; (iv) having regard to the scheme and policy of sections 45 B and 45 0 of the Banking Companies Act, in respect of pending matters which have not been brought to the notice of the Court by the Liquidator within three months, there is nothing to prevent the Court exercising its power of transfer at such time when it is brought to the notice of the Court.
|
tition Nos. 66/1974 & 4146/1978.
(Under Article 32 of the Constitution) V. M. Tarkunde, J. N. Haldar, Rathin Dass and A. K. Sanghi, for the Petitioners in WP 66/74.
Dr. Y. section Chitale, Mukul Mudgal and B. R. Aggarwal for the Petitioners in WP No. 4146/78.
section N. Kackar, Sol.
R. N. Sachthey, E. C. Agarwala and Miss A. Subhashini for RR 1 3 in WP 66 and RR 1 2 in WP 4146.
Ram Panjwani, Raj Panjwani, section K. Bagga and Mrs. 5.
Bagga for R. 4 in WP 4146 and Intervener (Gujjar Mal.).
Ram Panjwani, Bishamber Lal, Raj Panjwani and Vijay Panjwani for the R.6 in WP No. 4146 and R,358 in WP 66.
Yogeshwar Prasad and Mrs. Rani Chhabra for the R. 7 in WP 4146.
A. K Sanghi for the Interveners (Hari Narain and L. section Chakravarty).
The Judgment of Y. V. Chandrachud, C.J., N. L. Untwalia, P. section Kailasam and E. section Venkataramiah, JJ. was delivered by Chandrachud, C.J. D. A. Desai, J. gave a dissenting opinion.
CHANDRACHUD, C. J.
The disputes between promotees and direct recruits in various departments of the Government seem to have no end.
No sooner does one round of litigation come to a decision than is another round started by one party or the other, sometimes alleging, as in these Writ Petitions, that important facts and circumstances were not taken into consideration in the earlier proceedings either because they were suppressed or because, though cited, they were overlooked or misunderstood.
A virtual review is thus asked for, opening flood 823 gates to fresh litigation.
There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force.
Public servants ought not to be driven or required to dissipate their time and energy in court room battles.
Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no n institution can function effectively.
The constitution of Service Tribunals by State Governments with an apex Tribunal at the Centre, which, in the generality of cases, should be the final arbiter of controversies relating to conditions of service, including the vexed question of seniority, may save the courts from the avalanche of writ petitions and appeals in service matter .
The proceedings of such Tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many and displease only a few.
There are always a few whom nothing can please.
The three petitioners in Writ Petition No. 66 of 1974 are all promotees.
Petitioner No. 1, Kamal Kanti Dutta, was appointed as an Inspector of Income tax on December, 7, 1950 and after passing the departmental examination he was promoted an Income tax officer, Class II on June 21, 1954.
On January 1, 1966 he was promoted as Income tax officer, Class I, which post he was holding on the date of the petition, February 8, 1974.
Petitioners 2 and 3, Bikash Mohan Das Gupta and Sushil Ranjan Das, were promoted as Inspectors of Income tax in April, 1955.
The former was promoted as I.T.O., Class II in December, 1957 and as I.T.o., Class I, in May, 1971 while the latter was promoted as I.T.o., Class II, in August, 1973.
Respondents 1 to 5 to the petition are the Union of India, Secretary to the Ministry of Finance, the Central Board of Direct Taxes, Secretary to the Ministry of Home Affairs and the Union Public Service Commission respectively.
Respondents 6 to 357 who were recruited directly as I.T.Os., Class I, were appointed on probation as Class I officers after Petitioner No. 1 was promoted to that cadre on January, 1, 1966.
Respondents 280 to 357 were appointed on probation as I.T.os., Class I, after Petitioner No. 2 was promoted to that cadre in May 1971.
Respondent No. 358, section G. Jaisinghani, who was recruited directly as I.T.O., Class I, in 1951 was holding the rank of Assistant Commissioner of Income tax on the date of the petition.
He was posted at the relevant time as the Deputy Director of Investigation, New Delhi.
Respondent 359, Mohan Chandra Joshi, who was recruited directly as I.T.O., Class L in 1953 was also holding a similar rank and was 824 working as Deputy Secretary, Ministry of Defence, Government of India.
In Writ Petition No. 4146 of 1978 the Petitioner, Hundraj Kanyalal Sajnani, was appointed directly on the recommendation of the Union Public Service Commission as I.T.o., Class II (Trainee) on July 1, 1947.
After successfully completing the period of probation, he passed the departmental examination for I.T.Os.
in July 1950.
In 1959 60 he was promoted as I.T.O., Class I, and was confirmed in that cadre with effect from December 9, 1960.
He was promoted as an Assistant Commissioner of Income tax with effect from December 17, 1969.
Respondents 1 to 3 to that petition are the Union of India, the Chairman of the Central Board of Direct Taxes and the Union Public Service Commission respectively.
Respondents 4 to 8 are B. D. Roy, section G. Jaisinghani, M. C. Joshi, B. section Gupta and M. Jangamayya respectively.
These officers have figured in certain well known decisions of this Court, as a result of which their names have become house hold words in service jurisprudence.
In fact, Shri B. section Gupta figures in two cause titles known as 'the first Gupta case ' and the 'Second Gupta case '.
Respondents 4, 7 and 8 are Assistant Commissioners of Income tax while respondents 5 and 6 are workings Deputy Directors of Investigation.
It will be difficult to appreciate the nature of the relief sought in these Writ Petitions without a proper understanding of the history of the litigation leading to these petitions.
That history is quite checkered.
one of the principal grievances of the petitioners is that some of the previous decisions rendered by this Court are erroneous and that some have not been properly understood and interpreted while framing rules of seniority.
That makes it necessary to refer to the previous proceedings leading to the present controversy.
With a view to improving the income tax administration, the Government of India, in consultation with the Federal Public Service Commission, decided to reconstitute and classify the then existing Income tax Services, Classes I and II.
The scheme of reorganisation of the Services was set out in a letter dated September 29, 1944 of the Government of India, Finance Department (Central Revenues), which was sent to all the Commissioners of Income tax.
The Central Service, Class I was to consist of (1) Commissioners of Income tax, (2) Assistant Commissioners of Income tax, (3) Income tax officers, Grade I and (4) Income tax officers, Grade II.
The Central Service, Class II comprised Income tax officers, Grade III.
Thus Income tax officers, Class I were to be of two grades, Grades I and II, while Income tax 825 Officers, Class II, were to consist of one grade, namely, Grade Ill. A Clauses (a) to (e) of paragraph 2 of the aforesaid letter prescribed modes of recruitment to the various posts in Class I and Class II.
Clause (d) which prescribed the mode of recruitment to the post of Income tax officer, Class I, Grade II, said: Recruitment to Grade II will be made partly by promotion and partly by direct recruitment.
80 per cent of the vacancies arising in this Grade will be filled by direct recruitment via the Indian Audit & Accounts and Allied Service Examination.
The remaining 20 per cent of vacancies will be filled by pro motion on the basis of selection from Grade III (Class II Ser vice), provided that suitable men upto the number required are available for appointment.
Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be filled by direct recruitment via the Indian Audit and Accounts etc.
Services examination.
Rules regulating recruitment to the Income tax officers (Class I, Grade II) Service, "liable to alteration from year to year", were published on May 26, 1945 by a resolution of the Finance Department (Central Revenues).
Rule 3 provided that recruitment to Class I, Grade II Service shall be made (i) by competitive examination held in India in accordance with Part II of the Rules and (ii) by promotion on the basis of selection from Grade III (Class II Service) in accordance with Part III of the Rules.
By rule 4, the Government was to determine, subject to the provisions of rule 3, the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be filled during any particular period, and the number of candidates to be recruited by each method.
Part III of the Rules called 'Recruitment by Promotion ' provided by paragraph 21 that recruitment by promotion shall be made by selection from among Grade I II Income tax officers (Class II Service) after consultation with the Federal Public Service Commission and that no officer shall have any claim to such promotion as of right.
By a letter dated January 24, 1950 the Government of India laid down certain rules of seniority (a) as between direct recruits, (b) as between promotees selected from Class II, and (c) as between direct recruits who completed their probation in a given year and the promotees appointed in the same year to Class I. On October 18, 1951, the Government of India addressed a letter to all the Commissioners of Income tax on the subject Income tax officers, 14 463 SCI/80 826 Grade II (Class I Service) quota of vacancies filled by promotion .
The letter says: The Government of India have had under consideration the question of increasing the proportion of vacancies reserved for promotion from Class II Income tax officers in Class I.
It has been decided in consultation with the Union Public Service Commission and in modification of para 2(d) of the Finance Dept.
(Central Revenues) letter No. 195 Admn.
(IT/39 dated the 29th September, 1944 that for a period of five years in the first instance 66/2 3 % of the vacancies in Class I, Grade II, will be filled by direct recruitment via combined competitive examination and the remaining 33% by promotion on the basis of selection from Grade III (Class II Service).
Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be tilled by direct recruitment.
By a letter dated September S, 1952, the Government of India revised with retrospective effect the rules of seniority which were laid down on January 24, 1950.
Rule l(f)(iii) as framed on January 24, 1950 read thus: The promotees who have been certified by the Commission in any calendar year shall be senior to all direct recruits who complete their probation during that year or after and are confirmed with effect from a date in that year or after.
The rule as revised on September 5, 1952 read thus: Officers promoted in accordance with the recommendation of the Departmental Promotion Committee before the next meeting of the Departmental Promotion Committee shall be senior to all direct recruits appointed on the results of the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion.
Committee met and the three previous years.
Rule l(f)(iv) of the 1952 Rules dealt with a special situation in which an officer initially appointed to Class II service is given seniority in the same manner as a departmental promotee, if subsequent to his passing the departmental examination he is appointed in Class I on the results of the competitive examination.
Rule 4 of Chapter IX of the "Rules of Promotion of the Central Board of Revenue office Procedure Manual states, that the prescribed 827 minimum service for an officer of Class I, Grade II for promotion to A Grade I is 5 years gazetted service including 1 year in Class l, Grade II.
For a promotee from Class II, the minimum period of service for promotion to Class I, Grade I, would be actually 4 years service in Class II and 1 year service in Class I, Grade II.
In 1962, section G. Jaisinghani (who is respondent No. 358 in Writ Petition No. 66 of 1974 and respondent No. S in Writ Petition No. 4146 of 1978) filed Civil Writ No. 189 D of 1962 in the High Court of Punjab under Article 226 of the Constitution, challenging the validity of the seniority rules in regard to Income tax Service, Class I, Grade II as also the actual implementation of the 'quota ' rule, as infringing Articles 14 and 16(1) of the Constitution.
Promotees who were likely to be affected by the decision of the Writ Petition were added as respondents 4 to 126 to that Petition.
Jaisinghani who was recruited directly as an Income tax officer, Class I (Grade II), raised four principal contentions: (i) Rule l(f)(iii) of the seniority rules as framed in 1952 was based upon an unjustifiable classification between direct recruits and promotees after they had entered Class I, Grade II Service.
On the basis of that classification, promotees were given seniority over direct recruits of the same year and with weightage of three previous years.
All officers appointed to Class I, Grade II Service formed one class and after being recruited to that class, no distinction could be made between direct recruits and promotees.
(ii) Rule 1(f)(iv) was discriminatory because though the petitioner, Jaisinghani, qualified in the same competitive examination of 1950 for appointment to Class I, Grade II Service as respondents 4, 5 and 6 to that petition, they were treated as senior to him by the operation of the artificial rule by which they were regarded as "deemed promotees", since they were appointed to Class II, Grade III Service in 1947.
All the four of them were appointed to Class I, Grade II Service in 1951 and therefore the period of service put in by respondents 4, 5 and 6 in Class II, Grade III Service cannot be counted for fixing their seniority vis a vis the petitioner.
(iii) Rule 4 of Chapter IX of the 'Central Board of Revenue office Procedure Manual ' leads to discrimination as between direct recruits and promotees; and that 828 (iv) during the years 1951 to 1956, there was excessive recruitment of 71 promotees, in violation of the quota rule of 2: 1 contained in Government of India 's letter dated October 18, 1951.
The quota fixed by that letter must be deemed to have been fixed in exercise of the statutory power given by rule 4 of the Income tax officers (Class I, Grade II) Service Recruitment Rules published on May 26, 1945.
A full Bench of the Punjab High Court, Circuit Bench, Delhi, rejected the writ petition, holding that the principles for determining seniority between direct recruits and promotees laid down in rules 1(f) (iii) and (iv), 1952 were not discriminatory, that the quota rule announced by the Government of India were merely a policy statement and had no statutory force, that departure from the quota rule did not give rise to any justiciable issue and that the promotion rule governing promotions from Class I, Grade II to Class I, Grade I was not discriminatory and ultra vires of Articles 14 and 16 of the Constitution.
In appeal, a Constitution Bench of this Court held that rules l(f)(iii) and (iv) of the seniority rules framed in 1952 did not violate Articles 14 and 16 since they were based on a reasonable classification and that rule 4 of Chapter IX of the 'Central Board of Revenue office Procedure Manual ' cannot be held to lead to any discrimination as between direct recruits and promotees, since the object of the rule was really to carry out the policy of rule l(f)(iii) of the Rules of Seniority and not allow it to be defeated by the requirement of five years service in Class I, Grade II itself, before a person could be considered for promotion to Class I, Grade I.
On the question of excessive recruitment of promotees from 1951 to 1956 in violation of quota rule, the Court had directed the Secretary of the Finance Ministry, during the hearing of the appeal, to furnish information regarding the number of vacancies which had arisen from year to year from 1945 onwards, the nature of the vacancies permanent or temporary the chain of vacancies and such other details which were relevant to the matters pending before the Court.
In his affidavit dated January 31, 1967 Shri R. C. Dutt, Finance Secretary, said that he was not able to work out, in spite of his best endeavours, the number of vacancies arising in a particular year.
However, a statement, exhibit E. was furnished to the Court showing the number of officers recruited by the two methods of recruitment to Class I Service during the relevant years.
The Court found that it was not clear from Shri Dutt 's affidavit whether the quota rule was followed strictly for the years in question and noted that in the absence of figures of permanent vacancies in Class 1, Grade II, for the relevant years, the Solicitor General was unable to say to what extent 829 there had been deviation from that rule.
Rejecting the submission of the Solicitor General that the quota rule was merely an administrative direction, the Court held that rule 4 of the Income tax officers Class I, Grade II) Service Recruitment Rules was a statutory rule under which a statutory duty was cast on the Government to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recruited by each method; and that, though in the letter of the Government of India dated October 18, 1951 there was no specific reference to rule 4, the quota fixed by that letter must be deemed to have been fixed in exercise of the statutory power given by rule 4.
There was therefore no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure.
The quota rule, according to the Court, was linked up with the seniority rules and unless it was strictly observed in practice it would be difficult to hold that the seniority rule contained in rule l(f)(iii) was not unreasonable and did not offend Article 16 of the Constitution.
The Court expressed its conclusion thus: D We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents ' I to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24(2) Admn.
I.T./51 dated October 18, 1951.
We, however, wish to make it clear that this order will not affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income Tax.
(emphasis supplied).
The Court suggested that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment.
In Writ Petition No. S of 1966 filed by Mohan Chandra Joshi under Article 32 of the Constitution, a similar mandamus was issued by the Court.
Mohan Chandra Joshi, like Jaisinghani, was recruited directly 830 as Income tax officer, Class I, Grade II, with the only difference that he was appointed in 1953 while Jaisinghani was appointed in 1951.
Thus the direct recruits succeeded substantially in their contentions.
the quota rule acquired statutory force, appointments of promotees in excess of the quota became bad and it became obligatory for the Government to prepare a fresh seniority list.
Promotees found to have been appointed in excess of the quota admissible to promotees had naturally to go down lin the final gradation of seniority.
The aforesaid decision was given by this Court on February 2, 1967.
But, in spite of the mandamus issued by it, Government did not prepare a fresh seniority list for over a year, which led to the filing of a contempt petition by Jaisinghani and Joshi.
Those proceedings were dismissed by this Court on November 6, 1968.
In the meanwhile on July 15, 1968, the Government prepared a fresh seniority list and filed it in this Court.
That list failed to satisfy promotees as well as direct recruits.
Two writ petitions were filed in the Delhi High Court to challenge the fresh seniority list: one by B. section Gupta, a promotee of 1962 and the other by M. C. Joshi, a direct recruit who had succeeded in the earlier round of litigation in this Court.
These writ petitions were heard by two separate Benches of the Delhi High Court.
Writ Petition No. 196 of 1970 filed by B. section Gupta was dismissed whereas Writ Petition No. 550 of 1970 filed by M. C. Joshi was substantially allowed.
Setting aside the seniority list, the High Court gave a direction that another seniority list be prepared in the light of its judgment.
The decision of the Delhi High Court in the aforesaid two writ petitions was challenged in this Court in four appeals: one by B. section Gupta against the dismissal of his writ petition and the other three by (i) the Government, (ii) M. C. Joshi and (iii) S promotees.
In all these appeals, the only question or consideration was whether the seniority list prepared on July 15, 1968 was correct and in accordance with the mandamus issued by this Court in Jaisinghani vs Union of India and Ors.(1).
These appeals were heard together and were disposed of by a judgment dated August 16, 1972 which is reported in Bishan Sarup Gupta vs Union of India and Ors.(2).
While preparing the seniority list the Government understood the mandamus issued in Jaisinghani(l) as covering the entire period from 1951 to 1967.
For doing that it could not be blamed, since the mandamus issued in Jaisinghani(1) directed the Government to adjust the 831 seniority of various officers for the period 1951 to 1956 "and onwards", A though the argument regarding excessive recruitment of the promotees was confined to the years 1951 to 1956.
Palekar, J. speaking for the Court in Bishan Sarup Gupta (Supra) observed in the first instance that this Court could not possibly have in mind a seniority list which took in promotees after 1956 and that therefore under the mandamus issued by this Court, appointments of promotees in excess of the quota could only be taken into consideration in relation to the period 1951 to 1956.
The reason for the use of the words "and onwards" was explained to be that Government should be able to push down excess promotions to later years in order that such promotions could be absorbed in the lawful quota available for later years.
C In Bishan Sarup Gupta the Court was called upon to examine the correctness of seven principles enumerated in the Government letter dated July 15, 1968 governing seniority.
The first principle was accepted as good.
The second and the third principles were held to be partially incorrect in so far as they excluded reference to all the promotees of 1952.
The Court held that the promotees of 1952 should be referred to in the seniority list whether they are affected or not, the object being the ascertainment of excess promotions.
The fourth principle set out in the letter of July 15, 1968 which is important for our purpose reads thus: E In view of the difficulty in working out the vacancies arising in each year the total number of direct recruits and promotees in each year have been taken into account for the purpose of implementing the quota rule.
This Court held that the rule dated October 18, 1951 was not concerned with the constitution of the cadre but "was concerned with how permanent vacancies were to be filled" and therefore the promotees would be entitled to 1/3 of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year.
This ratio of 2: 1 between the direct recruits and the promotees could not be made to depend on whether any direct recruits were appointed in any particular year.
It therefore became essential to determine the actual vacancies in the cadre but even in B. section Gupta the Government put forward the plea that it was impossible for them to give the exact figure of vacancies in any particular year.
Counsel 11 who appeared for the promotees in that case filed a chart marked Annexure 1 which, according to him, showed the correct number of 832 vacancies in the particular years.
The Court, however, found it impossible to determine the actual vacancies on the basis of the figures given in that chart.
In the circumstances, the Court considered it reasonable to accept the number of appointments made in the particular years as substantially representing the actual vacancies available for being filled up.
One of the reasons which the Court gave in support of this conclusion was that when the quota rule referred to vacancies, it was implicit that the vacancies are those which the Government wanted to fill up, whatever may be the actual number of vacancies available for being filled up.
Thus, if in the year 1953, 53 posts were filled by direct recruits and 38 by promotees, the total number of vacancies which were intended by the Government to be filled in would be 91.
Promotees would be entitled to hold 1/3 of these namely, 30.
8 promotees therefore could be said to have been appointed in excess of the quota available for promotees.
This was in fact what the Government had done while preparing the fresh seniority list, though it had wrongly calculated the vacancies with effect from the year 1953 instead of doing so w.e.f.
the beginning of the year 1952.
There were no promotions in 1951 and therefore, the question of appointment of promotees in excess of their quota did not arise for that year.
The argument advanced on behalf of the direct recruits that the quota rule should be co related to vacancies in permanent posts only and not to those in temporary posts was rejected by the Court.
The Court upheld the 5th principle under which Class II officers promoted to Class I, Grade II, were allowed weightage under rule 1(f)(iii).
The Court then considered the question whether the quota rule could be applied after the year 1956.
It held that even after 1956, the Government was entitled by reason of rule 4 of the Recruitment Rules of 1945 to follow the quota rule of 1951 as a rough guideline, "without going to the trouble of putting the same on record in so many words".
The Court observed that if the rule is followed as a guideline, a slight deviation from the quota would be permissible but if there was an "enormous deviation", other considerations may arise.
Taking into consideration the relevant circumstances, the Court came to the conclusion that in the normal course the Government was entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 1951.
In regard to the position after the year 1958, the Court came to the conclusion that the quota rule ceased to apply and came to an end on January 16, 1959 when the sanction to upgrade 100 temporary posts in 833 class II, grade III to class I, grade II was given by the President.
The seniority rule then fell with the quota rule.
On these considerations it was held that the seniority list was valid in regard to promotions made upto January 15, 1959 to the extent that it was prepared on the basis of the quota rule dated October 18, 1951 read with the seniority rule 1(f) (iii).
This position made it necessary for the Court to consider as to how the inter seniority between the direct recruits and the promotes was to be fixed after January 16, 1959, if the seniority rule l(f)(iii) ceased to be operative from that date.
Several suggestions were made to the Court with a view to evolving a fair and just seniority rule.
The Court declined to be drawn into any such exercise and preferred to leave it to the Government to devise a fair and just seniority rule, if necessary, in consultation with the U.P.S.C.
As a corollary, the Court set aside the seniority list of July 15, 1968 and directed the Government to prepare a fresh seniority list.
The list for the years 1955 to January 15, 1959 was directed to be prepared in accordance with the quota rule of 1951 read with seniority rule l(f)(iii).
The list to be effective from January 16.
1959 was directed to be prepared in accordance with rules to be made afresh by the Government.
Principles (6) and (7) did not survive for consideration separately in view of the position mentioned above.
E The Court kept the proceedings pending on its file to enable the Government to prepare a fresh seniority list in the light of the directions given by it within six months from the date of the order.
Liberty was given to the parties to apply to the Court after the list was filed.
The judgment in B.S. Gupta (supra) was given on August 16, 1972.
On February 9, 1973, the President made rules called the Income tax (Class 1) Service (Regulation of Seniority) Rules, 1973.
These Rules were made under Article 309 of the Constitution and were given retrospective effect from January 16, 1959.
In pursuance of the liberty reserved to the parties under the judgment in B.S. Gupta, the validity of the new Seniority Rules was challenged by the promotes.
That challenge was considered and repelled by this Court in Bishan Sarup Gupta etc.
vs Union of India & ors.
,(l) the 2nd Gupta case.
Rule 3 of the new Seniority Rules of 1973 reads thus: "3.
Seniority of officers The seniority of the Income tax officers in the Class I service shall be regulated as from the 834 date of commencement of these rules in accordance with the provisions hereinafter contained namely: (i) the seniority among the promotes inter se shall be deter mined in the order of selection for such promotion and the officers promoted as a result of any earlier selection shall rank senior to those selected as a result of any subsequent selection; (ii) the seniority among the direct recruits inter se shall be deter mined by the order of merit in which they are selected for such appointment by the Union Public Service Commission and any person appointed as a result of an earlier select ion shall rank senior to all other persons appointed as a result of any subsequent selection; and (iii) the relative seniority among the promotes and the direct recruits shall be in the ratio of 1: 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely: (a) promote; (b) direct recruit; (c) promote; (d) direct recruit; and so on When the new list of seniority was prepared by the Government in accordance with these rules, the Government had on its hands 73 promotes who, though appointed earlier between 1956 and 1958, had no quota posts for their absorption.
The 73 promotes, described as "spillovers on January 16, 1959" as also those who were promoted subsequently had to be absorbed in the Service, which could only be done by a special rule framed in that behalf.
The method adopted in the preparation of this list was, according to Palekar, J., who spoke again for the Constitution Bench in the 2nd Gupta case, "simple enough", though the wording of the rule "19 not happy".
The simple method adopted by the Government was like this: The seniority list from serial No. 1 to serial No. 485 relating to the period from 1951 to January 16, 1959 was prepared in accordance with the quota rule read with the seniority rule which prevailed until January 16, 1959.
At serial numbers 486 to 1717 are officers who had to be accommodated from January 16, 1959 in accordance with the new seniority rules.
Since under rule 3 (iii), the first post in the roster has to go to a promote and the next to a direct recruit 835 serial No. 486 goes to a promote, serial No. 487 to a direct recruit A. and so on.
Promotes whose ranking is below serial No. 485 are either out of the 73 spillovers as on January 1959, or are those who were appointed later.
Thus, the new seniority rule contains a formula for the absorption of all Promotes with effect from January 16, 1959 in posts allocated to them, it determines their seniority inter se and last but not the least, it determines their seniority qua the direct recruits appointed from 1959.
The Court over ruled the objection of the 73 spillover Promotes that since, in the Ist Gupta case, the Court had directed that they should be absorbed on a "priority basis", all of them should have been shown in the seniority list as having been appointed on January 16, 1959 embolic and the direct recruits for that year should have been shown thereafter.
It was explained that by the use of the expression "priority basis", what was meant by the Court was that the position of the spillover promotes as seniors should not be prejudiced by claims made by later promotes on the ground that since the spillover promotes were recruited in excess of the quota, the later promotes whose promotion did not violate the quota rule had higher rights than those 73.
The principal contention of the promotes in the 2nd GPA case was this: As the quota rule collapsed on January 16, 1959 the spillover promotes as also those who were promoted thereafter must be deemed to have been validly appointed in accordance with rule 4 of the Recruitment Rules of 1945.
Since there was no seniority or quota rule in existence for determining the seniority of promotes Que the direct recruits, the natural seniority linked with the earlier date of appointment must be respected.
lt could not be altered to the detriment of the promotes since to do so would violate Article 16 of the Constitution.
This contention was rejected by the Court on the ground That when the 73 spillover appointments were made, there were no allocated or earmarked posts to which those promotes could have been validly appointed, the ordinary consequence of which would have been their reversion to Class II posts which they originally held.
So long as the quota rule was in existence, appointments in excess of the quota, though invalid when made, were at least liable to be regularized in subsequent years when vacancies were available to the promotes as a consequence of the quota rule.
But once the quota rule ceased to exist on January 16, 1959, any possibility of the excess appointments of the promotes being regularized vanished.
It was in order to overcome this injustice to the promotes, that the new rule was framed by the Government.
The new rule was thus not only the direct outcome of the judgment of the Court in the 1st Gupta case, 836 but it was founded on the very principles on which the Income tax Service had been constituted.
The Court finally said that it had also to be remembered that promotes appointed from January 16, 1959 onwards were appointed on an officiating or ad hoc basis with notice that the question of their seniority was still undecided.
This circumstance, coupled with the absence of clear allocations of posts, made it impossible for the promotes to lay claim to seniority and contend that they were deprived of their natural seniority in violation of Article 16.
Shri V.M. Tarkunde who appears on behalf of the petitioners in Writ Petition No. 66 of 1974 has made a fresh challenge to the new seniority list prepared in pursuance of the rules dated February 9, 1973 the validity of which was upheld by this Court in the 2nd Gupta case (Supra).
According to the learned counsel, the decision in Jaisinghani.
(Supra) suffers from the following three infirmities: (i) It was assumed in that case that the appointments of promotes were in excess of the quota available to them because the relevant files were not made available to the Court, nor indeed was the necessary data placed before the Court, even though during the hearing of the appeal the Court had asked the Secretary of the Finance Ministry to furnish information in that behalf.
In the absence of such information, the Court made an assumption which was unjustified, that the total number of vacancies available for promotes was equal to the total number of appointments actually made.
If, for example, 10 direct recruits and 20 promotes are appointed in a particular year it cannot be assumed either that only 30 vacancies are available for being filled up in that year or that only 30 appointments are intended to be made by the Government during that year.
The proper inference for the Court to draw, in the absence of material which ought to have been produced by the Government, was that if appointments were to be made of direct recruits and promotes in the proportion of 2: 1, and if 20 promotes were in fact appointed, the Government desired to appoint 40 direct recruits but could only appoint 10, probably because of the non availability of suitable candidates for direct recruitment.
(ii) It was wrongly assumed or held that rule 4 of the Income tax officers (Class I. Grade ll) Service Recruitment Rules was a statutory rule.
837 (iii) lt was wrongly assumed that 100 posts in Class 11, Grade III, and 114 posts in the same cadre which were upgraded as Class I, Grade II posts on January 16, 1959 and December 9, 1960 respectively were exclusively allotted to promotes and were in fact filled in by the appointment of promotes.
In regard to the decision in the 2nd Gupta case (Supra) it is contended that the decision suffers from the following infirmities: (i) It was wrongly held therein that the 73 spillover promotes as on January 16, 1959 could not be given priority en bloc, even though it was directed in the judgment in the 1st Gupta Case (supra) that they should be dealt with on a "priority basis".
(ii) It was wrongly held that 214 promotes were appointed in excess of the quota available to the promotes.
(iii) The conclusion that no distinction can be made between promotes and direct recruits once they belong to a com mon cadre was erroneous, as a result of which the promotes were unjustly deprived of their right to weightage.
(iv) The provision in rule 3 (iii) of the new Rules of seniority of 1973 that direct recruits and promotes will be appointed in the ratio of SO: SO cannot work to the advantage of the promotes because the measure of SO percent is fixed by the new rules in relation to the actual appointments made, whereas the old proportion of 2: 1 was in relation to the actual number of vacancies available for being filled in.
Learned counsel has demonstrated with the help of some of the instances in the new seniority list, as to how promotes have been treated unfairly and unjustly in comparison with direct recruits.
One such instance is that a direct recruit, Hrushikesh Mishra, who was appointed on July 3, 1966 is placed at serial No. 1001 while one of the petitioners, Kamal Kanti Dutta, who was appointed six months earlier on January 1, 1966 is placed at serial No. 1318.
Another instance cited is that of a promote, V. R. Hiremath, who was appointed on March 1, 1956 but is placed at serial No. 486, the first 485 officers having been ranked according to the quota rule read with the seniority rule which prevailed till January 16, 1959.
Hiremath, it is contended, not having been appointed in excess of the quota should have been given his seniority, on account of the three years ' weightage, with effect from March 1, 1953.
In the process, he has lost a benefit spread 838 Over not only three but six years, because his ranking has been made according to the new rule in relation to the date January 16, 1959.
These contentions were adopted by Dr. Y.S. Chitale who appears on behalf of the petitioner H.K. Sajnani in Writ Petition No. 4146 of 1978.
It may be mentioned that in Writ Petition No. 66 of 1974 of K.K. Dutta and others which was filed on February 8, 1974 no demand was made for the review of the decisions earlier given by this Court on the points under consideration.
The request for review of those decisions was made for the first time by the petitioners by paragraph 3 of their supplementary affidavit in rejoinder which was filed in this Court in April 1978.
By paragraph 45 of his Writ Petition, which was filed on June 27, 1978 Sajnani did contend that the aforesaid judgments be reviewed since they were wrongly decided.
Sajnani asked by paragraph Sl of his petition, and so did the petitioners in, the companion petitions asked by, their supplementary rejoinder, that the decision of this Court in Union of India vs M. Jangamayya(1) should also be reviewed.
In his writ petition, Sajnani has cited several specific instances in support of his contention that under the new seniority rules, the promotes have been treated with an evil eye and an uneven hand.
His complaint is that direct recruits who are "15 years junior in age and 15 years junior in experience had been placed above him"; and that the seniority list dated April 15, 1978 of Assistant Commissioners of Income tax, which is the basis of further promotion to the post of Commissioner of Income tax, does not include his name at all, though he has been working as an Assistant Commissioner ever since 1969 when he was selected by the competent authority with the concurrence of the U.P.S.C., after putting in 22 years of service as an I.T.O., out of which 10 years ' service was rendered in Class I itself.
Sajnani also prays that the seniority list dated April 15, 1978 for the cadre of Assistant Commissioners be set aside as violating Articles 14 and 16(1) of the Constitution.
In addition to these grounds which are pressed upon us for reviewing our decisions in Jaisinghani, Ist Gupta case, 2nd Gupta case and Jangamayya, (supra) the petitioners have placed strong reliance on the findings of the 49th Report of the Committee on Petitions of the Rajya Sabha, which was presented on January 9, 1976.
A full text of that Report is extracted at pages 242 to 363 of the compilation filed by the writ petitioners in this Court.
It appears from that report that at the sitting of the Rajya Sabha held on the 23rd August, 1974, Shri Kali Mukherjee, M.P., presented 839 a petition signed by Shri R.C. Pandey, General Secretary, All India A Federation of Income tax Gazetted Services Associations, New Delhi, praying for the repeal of the Income tax officers (Class I Service) 4 Regulation of Seniority Rules, 1973) and for the framing of fresh seniority rules in lieu thereof.
The Committee heard the representatives of (i) promotes on whose behalf the petition was presented to The Rajya Sabha; (ii) the Ministry of Finance and (iii) the direct recruits who were represented by the Indian Revenue Service Association.
After going through the evidence, the memoranda and the files supplied by the Ministry of Finance the Committee observed: ". the Department from 1944 till today has been working in a very haphazard, irregular and unscientific way.
They made policies, rules, etc.
and then went on deviating from them to suit certain exigencies.
Instead of meeting the new situation or the demands of the Department in a scientific or rational way, ad hocism prevailed.
This led to litigation for nearly two decades.
Since the year 1944, the Department has made so many commissions and omissions in its long working.
thereby it has provided arguments to both the direct recruits and promotes which have been advocated by them force fully. 'This has created bitterness and a picture of civil war in the Department.
It would facilitate our understanding if we look at the various points, like vacancies, quota, seniority, weightage, confirmations, recruitments or promotions to temporary and permanent vacancies, etc.
in a proper perspective.
" The Committee examined the files produced before it by the Ministry, expressed its sense of "shock" at the plea of the Ministry that files of vital matters were not traceable and concluded that the new seniority rules of 1973 should be scrapped.
The Committee recommended, inter alia,: "The entire concept of a common seniority list should be given up.
The existing common seniority list of 1973 be replaced by two sets of seniority lists consisting of direct recruits and promotes respectively, on the basis of the dates of their appointment.
The integration of the two channels which may be turned into two cadres should not be done at the level of I.T.Os.
but after the level of Assistant Commissioners.
" The Committee hoped that with the separation of the two seniority lists, the controversy of inter se, seniority will be resolved and the hardship caused to the 434 officers promoted between 1956 to 1966 will be relieved.
The Committee made certain calculations according to which, the correct number of spill over promotes as on Jan 840 uary 16, 1959 was 15 and not 73.
Observing in paragraph 7(i) that the Parliament owes responsibility in service matters too and that the executive is answerable to the Parliament for its actions, the Committee concluded its Report with the observation: ". if necessary, a special law could be enacted and in corporated in the Ninth Schedule of the Constitution so that no further scope is left for disputes and litigation and the Department would start functioning as an efficient and well knit unit and fulfil its intended role in combating the evils of black money and tax evasion and ensuring the stability and progress of our country.
" It is not necessary to go into complications arising out of the random placement of statutes, rules and notifications in the 9th Schedule, but we do hope that, some day, the promised millennium will come.
The Solicitor General and the other learned counsel who appear for the respondents resisted with great stoutness the attempt of the petitioners to reopen decisions rendered by this Court in disputes between promotes and direct recruits of the Income tax Service.
The respondents contend that everyone of the arguments now presented before us has been already considered carefully in the earlier decisions and the petitioners ' demand for review is only yet another attempt to retrieve a lost cause.
The learned Solicitor General also pressed upon us the need for treating the matter as closed.
Reviews, he contends, should not be granted save in exceptional circumstances and at any rate, he says, no solution in service matters can ever satisfy both the promotes and direct recruits in an equal measure.
Having considered these rival submissions carefully we are of the opinion that there is no substance in the request made on behalf of the petitioners for a review of the decisions in Jaisinghani, the 1st Gupta case, the 2nd Gupta case and Jangamayya (supra).
Certain historic facts have to be borne in mind while considering the points raised before us.
It is necessary to recall that for nearly a decade after 1950, appointments of promotes were made far in excess of the quota available to them.
So long as the quota rule operated, it was possible to regularize their appointments when posts within their quota became available in later years.
But a somewhat unprecedented ed situation arose by the upgrading of Class II posts to Class I, Grade II, 100 of the month January 16, 1959 and 114 on December 9, 1960.
This massive upgrading of posts brought about a collapse of the quota rule.
Subsequent absorption in posts which become available for being filled up later really means regularization of appointments, which is 841 possible provided there is no excessive deviation from the quota rule.
A We quite appreciate that no blame can be laid at the doors of the promotes on the score that they were appointed in excess of the quota available to them.
Perhaps, their appointments must even have enabled the administration to tide over administrative stalemate.
But the tough problem which the administration has to face is that whereas it is necessary to recognize and protect the claims of promotes who are appointed in excess of their quota, it is equally necessary to ensure that the direct recruits do not suffer an undue set back in service on account of the excessive appointments of promotes.
The conflicting claims of the two components of Service, both having an importance of their own, have therefore to be reconciled.
It was with that object that the rules have been modified from time to time.
The judgments rendered by this Court in matters which the petitioners want to be reopened show, without a shadow of doubt, how every effort was made to ensure that no hardship or injustice is caused to the promotes merely because their appointments exceeded their quota.
It is not correct to say that the judgment in Jaisinghani (supra) was based on a concession or that the Court felt compelled to draw the particular conclusions therein because of the inability or refusal of the Finance Ministry to produce the relevant files.
The Court adopted what it considered in the circumstances to be a satisfactory and scientific method of ascertaining the number of vacancies available for being filled up.
It came to the conclusions that the number; of actual appointments should determine the number of vacancies available which, with great respect, was a perfectly legitimate conclusion to draw.
In the grey area where service rules operate, more than one view is always possible to take without sacrificing either reason or commonsense but the ultimate choice has to be necessarily conditioned by several considerations ensuring justice to as many as possible and injustice to as few.
We also find it impossible to hold that there was any error in the conclusions in Jaisinghani (supra) that rule 4 of the Recruitment Rules was a statutory rule.
Subsequent decisions would show that there was hardly any dispute between the parties, at later stages at any rate, that rule 4 was a statutory rule.
The other objections raised against the judgments in the various cases partake more or less of the same character and must be overruled for similar reasons.
We appreciate that the promotes should not be penalized for the mere reasons that those of them who were appointed after January 16, 1959 were appointed on an officiating or ad hoc basis and had clear notice that the question of their seniority was still undecided.
The 842 circumstances attendant upon their appointments cannot, however, be wholly over looked in determining whether the, constitutional constraints have been over stepped.
In regard to the individual instances cited before us as exemplifying the injustice caused to the Promotes, it is not scare to test the constitutionality of a service rule on the touchstone of fortunes of individuals.
No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service.
The paramount consideration is the reconciliation of conflicting claims of two important constituents of Service, one of which brings fresh blood and the other mature experience.
The counter affidavit dated August 31, 1973, filed in the 2nd Gupta case (supra) by Shri Mehra, Deputy Secretary, Ministry of Finance, shows the fullness with which the Government had consulted all possible interests while framing the impugned rules of seniority.
The gamut of reasonable possibilities is fairly covered by the four alternatives referred to in Shri Mehra 's affidavit.
The inconveniences and disadvantages flowing from the first three alternatives would be far greater than those flowing from the 4th.
That is why the choice ultimately fell on the 4th alternative, under which the seniority between Promotes and direct recruits was fixed alternately on a roster system, vacancies being equally divided between Promotes and direct recruits, for the entire period from 1959 up to date.
Though the promotes submitted in the 2nd Gupta case (supra) that the new seniority rule was unfair to them, they were unable to put forward any rational alternative, a fact which is noted at page 119 of the Report.
That led the Court to remark: "They are indeed pleased with the increase in the promotional chances.
But they are sore that the artificial rule of seniority which gave them weightage, has been removed.
They do not dispute that by the increase in their ratio in Class I service, a larger number of Class II officers will, in course of time get a chance to be appointed by promotion as Assistant Commissioners.
But they are sorry that their chances to be promoted to posts higher than that of the Assistant Commissioner are now retarded by the removal of the weightage.
" This shows how difficult it is to solve the jig saw puzzle of service disputes.
The Report of the 'Committee on Petitions ' of the Rajya Sabha, howsoever sincerely motivated and fully drawn, cannot be given the 843 importance which the promotes seem to attach to it.
It is urged that the findings of the Committee are authentic because the Finance Ministry had made the relevant files available to it.
We do not think that this argument is well founded.
In paragraph 16 of its Report, the Committee does refer to certain files but those files appear to contain some noting in regard to the direct recruitment only.
The Committee has given a table of comparative appointments in paragraph 19 of its Report, but it had to speculate on an important aspect of the matter, as is shown by its own language, that the table shows the number of direct recruits which the Government wanted to take and " on the basis of which the promotes must have been given promotions".
(emphasis supplied).
If indeed the relevant files were produced before the Committee, it would not have expressed its sense of deep shock and resentment at the disappearance of the files.
We share the concern of the Committee which is expressed in paragraph 32 of its Report thus .
"It is strange that many of the files which could probably have thrown light on the question of excess promotion, are reported `missing ' or `not available '.
The conclusion is inescapable that these losses of files are far from being accidental.
We can only conclude that important information was deliberately withheld from the Supreme Court as well as from the Committee.
Had the Committee been allowed access to the file relating to the Seniority Rules framed in 1973, we could have known some more facts".
This shows that the Committee, too? had to grope in the dark and indulge in a certain amount of speculation on matters under its consideration.
In the circumstances, it has done as good a job as a Committee can and we desire to find no fault with its Report.
But we can not accept the submission pressed upon us by the petitioners that the Committee 's Report must displace our judgments.
It shall have been noticed that we have refused to reconsider our decisions not so much because of the view taken in the various cases cited by the learned Solicitor General, like Sajja Singh vs State of Rajasthan,(l) that this Court should not review its decisions too readily, as because, on merits, we see no justification for reconsidering the judgments already rendered by this Court.
No fresh facts are brought to our notice, by way of discovery of new and important evidence, which would justify reconsideration of the decisions already rendered by this Court after the most careful examination of the competing 844 contentions.
The report of the Rajya Sabha Committee on Petitions shows, as already indicated, that the relevant files are still not traceable.
The petitions are accordingly dismissed but there will be no order as to costs.
DESAI, J. I have carefully gone through the Judgment prepared by My Lord the Chief Justice but I regret my inability to agree with the same.
The history, chronology of events, contentions canvassed and the three decisions of this Court disposing of the contentions have been so succinctly drawn up in the main judgment that its repetition would merely be an idle formality.
I would, therefore, straightaway deal with the points raised in these petitions.
The petitioners who are promote Income Tax officers Class I, Grade II, pray for reconsideration of the three decisions specifically S.G. Jaisinghani vs Union of India & O.r.s.
Bishan Satup Gupta vs Union of India & o.r.s. (2) ( '1st Gupta case ' for short) and, Bishan Sarup Gupta etc.
vs Union of India & ors.
(13) ( '2nd Gupta case ' for short), and to the extent the first mentioned case is relied upon in Union of India etc.
vs Malji Jangamayya etc.
,(4) on the following grounds; 1.
The conclusion that rule 4 of the Income Tax officers (Class l, Grade II) Service Recruitment Rules is statutory and, therefore, the quota prescribed by the Government of India for recruitment to Income Tax officers Class I, Grade II in exercise of the power conferred by rule 4 would be statutory, proceeds on an assumption not warranted by the provisions of law bearing on the point and if both rule 4 and the quota presumably prescribed in exercise of the power conferred by rule 4 are not shown to be statutory, the foundation on which the edifice in Jaisinghani 's case rests is knocked out because it can be demonstrably established that neither rule 4 nor the quota prescribed there under was statutory in character but was at best an administrative instruction.
845 2.
After the Court on an interpretation of the quota rule A held that the quota was related to vacancies arising in the grade every year, the conclusion reached did not conform to this finding but accommodated the so called inability (now shown to be factually incorrect) of the Government of India to give information to the Court about the vacancies in the grade every year with the result that the whole calculation of spill over is vitiated.
The mandamus issued in Jaisinghani 's case was minister pretend by the Government because even if the quota was statutory it was operative only between 1951 and 1956 but the Government interpreted the mandamus to be operative beyond 1956 and upto 1967 which misinterpretation has been pointed out in the first Gupta case.
In the 1st Gupta case while holding that the mandamus directing to treat the quota as statutory beyond 1956 was not justified yet till January 16, 1959, the Court itself in , directly accepted the quota rule as a guideline and treated that there was a spill over of 73 promotes.
If rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived its prescribed span of life in 1956 could not be brought in to treat any appointment as invalid on the ground that there was no allocated post for those appointees treated as spill over because under rule 4 itself the Government had power to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method.
The action of the Government in upgrading 214 posts between 1959 and 1962 from Class II, Grade III to Class I. Grade II was not open to question as at that stage there was no quota rule and rule 4 enabled the Government to make recruitment from either of the two sources in exercise of its executive power.
In upholding the seniority rules in 2nd Gupta case the Court introduced quota rule retrospectively by the back door which is impermissible and its operation manifestly establishes its utter unfairness inasmuch as a direct recruit not any where in the Department or may be a student may secure a march over a promote who has been working in Class 1, Grade II.
846 While no doubt this Court has constitutional power to review its decision, it is a power to be sparingly exercised because any such review has the tendency to unsettle questions which may have been finally determined.
In fact, learned Solicitor General appearing for the Union of India warned us that the credibility of this Court is at stake if it goes on re opening and reviewing propositions which have been finally determined by this Court.
Whose credibility is at stake would be presently pointed out because the examination of this ugly aspect could have been spared if such a contention was not canvassed.
Repeatedly the Government of India kept back material from this Court filing affidavit after affidavit showing its inability to provide such important information on which the decision of the Court would turn even though it can now be demonstrably established that such mate rial and information was with the Government.
If the Government of India Had not withheld such material information ' which has been rather adversely commented upon not by the Court but by the Legislature, the credibility of the department would be exposed.
Reference may be made in this connection to the 49th Report of Committee on Petitions presented on January 9, 1976, to Rajya Sabha Secretariat, set up to dispose of a petition filed by one R.C. Pandey, General Secretary, All India Federation of Income Tax Gazetted Services Associations, praying for repeal of the Income Tax officers (Class I Service) (Regulation of Seniority) Rules, 1973, and for the framing of fresh seniority rules in lieu thereof.
While disposing of this petition, the observation pertinent to the point under discussion may be extracted: "The Committee is shocked at the pleas of loss of vital records taken by the administration.
In response to the committee 's requests relating to important files the administration has taken a similar plea.
The Committee asked for a file which could possibly show the correct position on the question whether the 80: 20 quota during the period 1945 50 was really operative.
The file is reported missing.
Another file reported mis sing is that relating to the framing of the recruitment rules, 1945.
The file relating to Shri R.C. Dutt 's affidavit (filed in Jaisinghani 's case) is also not available.
Even the very recent file relating to the framing of Seniority Rules, 1970, is reported as 'not available '.
On our insistence they have produced a thick sheaf of papers said to be 'reconstructed file '.
It is strange that many of the files which could probably have that own light on the question of excess promotion, are reported 'missing ' or 'not available '.
The conclusion is Inescapable that these losses of files are far from being accident.
We can only 847 conclude that important information was deliberately withheld from the Supreme Court as well as from the Committee".
(emphasis supplied) On these observations the credibility submission would not only stand squarely answered, but need not deter us from going into the points made in these petitions.
However, this Court does not lightly undertake review of its decisions, more especially where conflicting claims have been settled by a decision of the Court and the whole gamut may have to be gone through over again on a reconsideration of the decision.
The approach of the Court on a plea of reconsideration has been spelt out in Sajan Singh vs State of Rajasthan,(l) where a plea for reconsideration of the decision of this Court in Sri Sankari Prasad Singh Deo vs Union of India & State of Bihar,(2) was repelled observing as under: "It was, however, urged before us during the course of the hearing of these writ petitions that we should reconsider the matter and review our earlier decision in Sankari Prasad 's case.
It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good.
The doctrine of stare decisions may not strictly apply in this context and no one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare.
Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them".
G Similarly, in the Keshav Mills Co. Ltd. vs Commissioner of Income Tax Bombay North,(3) it was held that while exercising inherent power to reconsider and review its earlier decisions this Court would naturally like to impose certain reasonable limitations and would be reluctant 848 to entertain plea for reconsideration and review of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so.
It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision making is often very difficult and delicate.
In deciding whether a review is necessary when two views are possible it would not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable.
The Court 's discretion should be guided by such consideration whether in the interest of public good or for any other valid or compulsive reasons it is necessary that the earlier decision should be revised.
This view was re affirmed in Manganese Ore (India) Ltd. vs The Regional Assistant Commissioner of Sales Tax, Jabalpur.(l) Bearing these principles in mind, it is necessary to examine whether a case for reconsideration of the three earlier decisions is made out by the petitioners or not.
Jaisinghani 's case proceeds on a concession that rule 4 and the quota prescribed by the Government referable to the power conferred by rule 4 were statutory in character.
This is borne out by the observation of the Court which may be extracted: "It is not disputed that rule 4 of the Income Tax officers, Class I, Grade II Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under ' this Rule to determine the method or methods to be employed for the purpose of filling the vacancies or number of candidates to be recruited by each method".
Income Tax Service was reconstituted on September 29, 1944 The Government of India classified the existing Income Tax Service as Class I and Class II.
The scheme provided for recruitment of Income Tax officers Class I, Grade II partly by promotion and partly by direct recruitment.
The scheme was set out in the Government of India, Finance Department (Central Revenues) letter dated September 29, 1944.
The quota prescribed therein has undergone a revision at a later date.
It thus appears that the rules were pre constitution Rules and, therefore, their source must be traced to the Government of India Act, 1935 ( '1935 Act ' for short).
Section 241 of the. 849 1935 Act made provision for recruitment and conditions of service.
A bare perusal of the section would show that the power to make appointments in the case of service of Federation and posts in connection with the affairs of the Federation was conferred on the Governor General or such person as he may direct.
The power to make rules in this behalf was conferred by sub section
(2) on the Governor General or by some person or persons authorized by the Governor General to Make the rules for the purpose.
On an examination of the rules under discussion no material was placed on record to show that the rules were made either by the Governor General or such person as authorized by him.
As pointed out a little while ago, the rules were made by the Finance Department and no material was placed to show that the person or the persons who made the rules were authorized by the Governor General under section 241(2) of the 1935 Act in this behalf.
The assumption made, therefore, that rule 4 of the Rules was statutory and that the quota prescribed in exercise of the power conferred by rule 4 must be statutory, is ill founded.
This knocks out the entire foundation of the judgment of this Court in Jaisinghani 's case because this Court proceeded to hold that as the quota was statutory any recruitment made in excess of the quota in any given year would be invalid and at best can be regularized by relegating such excess appointments to the quota next year.
If rule 4 and the quota referable to the power conferred by rule 4 were not statutory but were merely executive instructions, its violation would not render any appointment in excess of it invalid, but at best would be irregular and in this case on a plain reading of rule 4 it would not even be irregular.
In P.C. Sethi & Ors.
vs Union of India & Ors., this Court held that in the absence of any statutory rules it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganization of service as long as there is no violation of Articles 14 and 16 of the Constitution.
If the parent rule 4 enables the Government to prescribe method to be employed for the purpose of filling in any particular vacancy {.
Or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method and if the so called quota is not statutory but merely a guideline, the Government whenever making appointment would be acting in exercise of power conferred by rule 4 which leaves it to the discretion of the Government to decide from what source recruitment should be made and what must be the quantum of vacancies that must be filled in at a given point of time and such appointment could not be said Hi to be invalid.
850 Alternatively, even if the assumption made in Jaisinghi 's case that rule 4 and the quota referable to the exercise of power conferred by rule 4 is unquestionable yet when this Court held that the quota is related to the vacancies, the decision proceeding on an incorrect plea that the information about the number of vacancies in a year is not available, is unsustainable for two reasons, namely, (I) that the files are now produced; and (2) in the absence of information about the vacancies available the Court could not have invalidated any appointment on the assumption that appointment from the source of promotes was in excess of the quota.
On a plain reading of rules 3, 4 and S it appears crystal clear that the quota was related to vacancies and at one stage that was accepted.
On this finding unless the fact situation is clearly established showing vacancies year to year it would be impossible to hold that in any year there was in excess in either source.
Suppose there were 90 vacancies in a year and the quota was 66 2/3 for direct recruits and 33 1/3 for promotes, it would be open to the Government to promote 30 persons irrespective of the fact whether 60 direct recruits have become available or not.
The assumption made that the recruitment made in a given year from both the sources would furnish information about the vacancies in a year would lead to a rather unfair conclusion inasmuch as the action of the Government in acting in a certain manner without due regard to the quota rule would work hardship on appointees even though on a correct calculation of vacancies the appointments may be valid and legal.
The mandamus issued in Jaisinghani 's case was as under: "We are accordingly of the opinion that promotes from class II, grade III to class I, grade II service in excess of the prescribed quotas for each of the years 1951 to 1956 and on wards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24(2) Admn.
I.T./51 dated October 18, 1951.
We, however, wish to make it clear that this order will not affect such class II officers who have been appointed permanently as Assistant Commissioners of Income Tax.
But this order will apply to all other officers including those who have been ap 851 pointed Assistant Commissioners of Income Tax provisionally pursuant to the orders of the High Court".
The Government understood the mandamus as covering the whole period from 1951 to 1967.
When this was questioned in the 1st Gupta case, this Court held that the quota rule Proprio vigor operated between 1951 to 1956 and if there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time and they could be regularized by being absorbed in the quota for the later years.
So adjusting the quota at any rate upto 1956, the quota rule on its own strength evaporated because it was to be in operation for a period of five years and no fresh quota rule was issued by the Government.
Therefore, after 1956 rule 4 remained in force in all its rigour and was not hedged in by any quota.
Rule 4 permitted the Government to make recruitment from either source without lettering its discretion by any quota rule which it was not bound to prescribe.
On January 16, 1959, Government in the ministry of Finance informed the commissioners of Income tax that the President had sanctioned the upgrading to class I of 100 temporary Posts of Income Tax officers, Class II.
On December 19, 1960, there was further upgrading of 114 posts from class II to class I. Between 1959 and 1962 these 214 posts were filled in by promotes.
Now, in the Ist Gupta case this court held that even though the quota rule expired in 1956, yet the Government of India adopted it as a guideline.
May be, it may be so.
Does any appointment in breach of the guideline neither statutory nor even having the fragrance of any executive instruction become invalid more so when the Government had power to make appointment from either source uninhibited by any quota rule under rule 4 ? Yet the Court found that between 1956 and 1959 when 100 pasts came to be upgraded there was a spillover of 73 persons and because of the huge departure from guidelines the weightage rule giving seniority to the promotes by 2 3 years was crushed under its own debris.
Again, with respect it must be confessed that rule 4 is overlooked or bypassed when saying that there was a spillover of 73 promotes between 1956 and 1959.
Nor could it be said that the upgrading of 214 posts and filling them up by promotes would be in any way even irregular much less invalid because rule 4 enables Government to draw from either source.
In the 2nd Gupta case in view of the decision in 1st Gupta case a fresh seniority rule was prepared and it was made retroactive from 11 January 16, 1959.
If, the inter alia provides that the relative seniority amongst the promotes and the direct recruits shall be in the ratio of 852 1: 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely: (a) Promote; (b) direct recruit, (c) Promote, (d) direct recruits, and so on.
This method of roster undoubtedly introduces a quota by the back door.
Once a roster is introduced Promote direct recruit, Promote direct recruit etc.
even if some promotes have come in a bulk and if at a later date some direct recruits are appointed in bulk, while preparing roster an earlier date promote will have to yield his place to a later date direct recruit.
Bluntly translated it means that the direct recruit who was never in service when promote was promoted, probably he may be a student.
May be he may not have even passed the competitive examination, yet he may come into the picture and challenge one who has already been serving in the Department for a number of years.
To illustrate, in the new seniority list prepared by the Government pursuant to the order made by this Court in the 1st Gupta case and upheld by this Court in 2nd Gupta case a promote of 1962 will have to yield his place to a direct recruit of 1966.
With utmost hesitation I must say that service jurisprudence hardly permits a situation where a man not in service comes and challenges some thing which has been done much before he came in to service and gets such an advantage which on the face of it appears to be unfair.
But apart from this, even in 1959 there was no quota rule and assuming that the old service rule giving weightage to the promotes crushed under that weight of large number of promotes being promoted, it would not be open to the Government to so prepare a fresh seniority list which cannot be given effect to unless a roster is introduced which introduces quota by the back door and which is so unfair in its operation that promotes of 1962 will have to yield place to direct recruits of 1966.
Now under the old weightage rule promotes were given a weightage for service of 2 3 years over direct recruits because direct recruits were unable to undertake regular assessment work for a period of 2 3 years when they were more or less under training while promotes have been doing this work for a number of years and their experience is rejected in the weightage.
The whole thing now appears in the reverse gear in that an uninitiated direct recruit takes precedence over an experienced promote.
The unfairness of the new rule is writ large on the face of it.
853 This rule violates another important rule well recognised in the service jurisprudence that in the absence of any valid rule of seniority date of continuous officiation provides a valid rule of seniority.
This rule is completely crucified under two unsustainable assumption that a quota rule having guideline sanction is made imperative in character and assumed to be in force between 1956 and 1959, and that even though Government in exercise of power conferred by rule 4 for its own necessity promoted 214 promotees to the upgraded posts yet they must yield place to some future direct recruits who may come to the department at a later date.
This Court sustained the position holding that these were ad hoc appointments, and there were no regular posts for those promotees.
This approach wholly overlooks the effect and the force of rule 4.
Certainty and continuity demand that this Court should not reopen settled decisions or reopen closed questions unless under a compelling necessity.
It may be that the fate of Income Tax officers, promotees and direct recruits, may rest with the three decisions of this Court.
Unfairness to some of them may itself not provide a good and compelling reason for reopening and reconsidering the decisions.
Therefore, if that were the only point for our consideration I would have unhesitatingly agreed with the decision rendered by My Lord the Chief Justice.
But there is a further compelling necessity which impels me to pen these few lines.
Jaisinghani and the two Gupta cases are being quoted times without number before this Court for the principles enunciated therein.
These decisions, therefore, affect subsequent decisions of this Court as well as the High Courts.
And some of the principles enunciated in these three cases stand in sharp contrast to other decisions of this Court and in fact this Court itself felt it necessary to warn that it may become necessary to reconcile these conflicting decisions.
In this connection reference may be made to N.K. Chauhan and ors.
vs State of Gujarat and ors.
where this Court after referring to two sets of decisions charting two different courses, observed as under: "After all, we live in a judicial system where earlier curial wisdom, unless competently over ruled, binds the Court.
The decisions cited before us start with the leading case in Mervyn Coutindo & ors.
vs Collector of Customs, Bombay and close with the last pronouncement in Badami vs State of Mysore and ors.
This time span has seen dicta go zigzag but we see no difficulty 854 in tracing a common thread of reasoning.
However, there are divergencies in the ratiocination between Mervyn Coutindo (supra) and Govind Dattatray Kelkar and ors.
vs Chief Controller of Imports and Exports and ors.
, on the one hand and section G. Jaisinghani vs Union of India (supra) Bishan Sarup Gupta vs Union of India (supra) Union of India and ors.
vs Bishan Sarup Gupta , and A. K. Subraman and ors.
vs Union of India on the other, especially on the rota system and the year being regarded as a unit, that this Court may one day have to harmonize the discordance unless Government wakes up to the need for properly drafting its service rules so as to eliminate litigative waste of its servants ' energies".
It is not for a moment suggested and I say so with utmost respect that the aforementioned three decisions are incorrect.
In the light of the materials now placed especially the files which were withheld from the Court and the Committee the only view that I express is that enough compelling and necessary material has been placed on record making out a strong case for reconsideration of these decisions.
Accordingly, in my view the present two petitions deserve to be placed before a larger Bench to be constituted by the Hon 'ble Chief Justice of India.
ORDER In view of the majority opinion the Writ Petitions are dismissed with no order as to costs.
S.R. Petitions dismissed.
| IN-Abs | With a view to improving the Income tax administration, the Government of India in consultation with the Federal Public Service Commission decided to reconstitute then existing income tax services, Class I and II.
Under the scheme of reorganisation of the services set out in a letter dated September 29, 1944 of the Government of India Finance Department, the central service Class I was to consist of (i) Commissioners of Income Tax (ii) Assistant Commissioners of Income Tax; (iii) Income Tax Officers Grade I and (iv) Income Tax Officers Grade II.
Thus Income Tax Officers Class I were to be of two grades, Grade I and II; while Income Tax Officers Class II were to consist of one grade, namely, Grade III.
Clauses (a) to (e) of paragraph 2 of the letter prescribed the mode of recruitment to the various posts in Class I and Class II.
Under Clause (d) recruitment to Class I Grade II was 20% by promotion from Class II, Grade III and 80% by direct recruitment via Indian Audit and Accounts Service etc.
examination.
Rules regulating recruitment to the Income Tax Officers (Class I, Grade II) service "liable to alteration from year to year" were published on May 26, 1945, by a resolution of the Finance (Central Revenues) Department.
Rule 3 provided that recruitment to Class I, Grade II 's service shall be made (1) by competitive examination held in India in accordance with Part II of the Rules and (ii) by promotion on the basis of selection of Grade III (Class II service, in accordance with Part III of the Rules.
By Rule 4 of the Government was to determine, subject to the provisions of Rule 3, the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may be required to be filled during any particular period, and the number of candidates to be recruited by such method.
Part III of the Rules called (Recruitment by Promotion) provided by paragraph 21 that "recruitment by promotion shall be made by selection from Grade III Income Tax Officers (Class II service) after consultation with the Federal Public Service and that no officer shall have any claim to such promotion as of right".
By a letter dated January 24, 1950 the Government of India laid down certain rules of seniority : (a) as between direct recruits; (b) as between promotees selected from Class II and (c) as between direct recruits who completed their probation in a given year and the promotees appointed in the same year to Class I. 812 On October 18, 1951 the Government of India addressed a letter to all the Commissioners of Income Tax titled "Income Tax Officers, Grade II (Class I service) quota of vacancies filled by promotions" wherein it was outlined that for a period of 5 years in the first instance 66 and 2/3 per cent of the vacancies in Class I, Grade II would be filled by direct recruitment by a combined competitive examination and the remaining 33 and 1/3 per cent on the basis of selection by promotion from Grade III (Class II service).
Any surplus vacancies which could not be filled by promotion for want of suitable candidates would be added to the quota of vacancies to be filled by direct recruitment.
By a letter dated September 5, 1952 the Government of India revised with a retrospective effect the Rules of Seniority which were laid down on January 24, 1950.
Rule 1 (f)(iii) as framed on January 24, 1950 which was to the effect that "the promotees who have been certified by the commission in any calendar year shall be senior to all direct recruits who complete their probation during that year or after and are confirmed with effect from a date in that year or after" was revised on September 5, 1952 as "officers promoted in accordance with the recommendations of the Departmental Promotion Committee before the next sitting of the Departmental Promotion Committee shall be senior to all direct recruits appointed on the results of the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion Committee met during the three previous years".
Rule 1(f)(iv) of the 1952 Rules dealt with a special situation in which an officer initially appointed to Class II service was given seniority in the same manner as a departmental promotee, if subsequent to his passing the departmental examination he was appointed to Class I on the results of the competitive examination.
Rule 4 of Chapter IX of the Rules of Promotion of the Central Board of Revenue Office Procedure Manual states that the prescribed minimum service for an officer of Class I, Grade II for promotion to Grade I is 5 years gazetted service including one year in Class I, Grade II.
For a promotee from Class II the minimum period of service for promotion to Class I, Grade I would be actually 4 years service in Class II and one year service in Class I, Grade II.
In an appeal arising out of Writ Petition No. 189 D of 1962 filed by one section G. Jai Singhani (who is respondent No. 358 in Writ Petition No. 66 of 1974 and respondent No. 5 in Writ Petition No. 4146 of 1978), a constitutional Bench of this Court held : (i) Rules 1(f)(iii) and (iv) of the Seniority Rules framed in 1952 did not violate Articles 14 and 16 since they were based on a reasonable classification; (ii) Rule 4 of Chapter IX of the Central Board of Revenue Office Procedure Manual did not lead to any discrimination as between direct recruits and promotees, since the object of the rule was really to carry out the policy of Rule 1(f)(iii) of the Rules of Seniority and not allow it to be defeated by the recruitment of 5 years ' service in Class I, Grade II itself, before a person could be considered for promotion to Class I, Grade I; (iii) Rule 4 of the Income Tax Officers (Class I, Grade II) Service Recruitment Rules was a statutory rule to which a statutory duty was cast on the Government to determine the method or methods to be employed for the purpose of filling of the vacancies and the number of candidates to be recruited by each method; and that though in the letter of the Government of India dated October 18, 1951 there was no specific reference to Rule 4, the quota fixed by that letter must be deemed to have been fixed in exercise of the statutory power given by Rule 4.
There was, therefore, no discretion left to the Government of 813 India to alter that quota according to the exigencies of the situation or to deviate from the quota in any particular year at its own will and pleasure.
The quota rule, according to the Court, was linked up with the Seniority Rule and unless it was strictly observed in practice it would be difficult to hold that the seniority rule contained in rule l(f)(iii) was not unreasonable and did not offend Article 16 of the Constitution.
The Court suggested that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster n should be maintained indicating the order in which appointments were made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment.
Thus the direct recruits succeeded substantially in their contentions, the quota rule acquired statutory force, appointments of promotees in excess of the quota became bad and it became obligatory for the Government to prepare a fresh seniority list.
Promotees found to have been appointed in excess of the quota admissible to promoteeS had naturally to go down in the final gradation of seniority.
On July 15, 1968 the Government prepared a fresh seniority list and filed it in the Supreme Court.
That list failed to satisfy promotees as well as direct recruits.
Whether this seniority list was collect and in accordance with the mandamus which was issued by this Court in section G. Jai Singhani`s case; , came up for consideration in four appeals which were disposed of by a common judgment dated August 16, 1972 reported as Bishan Sarup Gupta vs Union of India (first Gupta 's case) in The Court was also called upon to examine the correctness of seven principles enumerated in the Government letter dated July 15, 1968 governing seniority.
The first principle was accepted as good.
The second and the third principles were held to be partially incorrect in so for as they excluded reference to all the promotees of 1952.
The Court held that the promotees of 1952 should be referred to in the seniority list whether they are affected or not, the object being the ascertainment of excess promotions.
This Court further held that the rule dated October 18, 1951 was not concerned with the Constitution of the cadre but "was concerned with how permanent vacancies were to be filled" and, therefore, the promotees would be entitled to 1/3 of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year.
This ratio of 2 :1 between the direct recruits and the promotees could not be made to depend on whether any direct recruits were appointed in any particular year.
It, therefore, became essential to determine the actual vacancies in the cadre but the Government put forward the plea even in this case as in Jai Singhani 's that it was impossible for them to give the exact figure of vacancies in any particular year.
According to the Court, when the quota rule referred to vacancies it was implicit that the vacancies are those which the Government wanted to fill up whatever may be the actual number of vacancies available for being filled up.
Any number of posts among the promotees more than 1/3 of the total number of appointments in the particular year was considered to be in excess of the quota available for promotees.
The Court rejected the argument that the quota rule which is co related to vacancies of permanent posts only and not to those in temporary posts.
While upholding the weightage allowed under Rule I (f) (iii) to Class II officers promoted to Class l, Grade II, the Court also held that even after 1956, the Government was entitled by reason of Rule 4 of the Recruitment Rules of 1945 to follow the quota rule of 1951 as a rough guideline, "without going through the trouble of putting the same on record in so many words" and 814 that in the normal course the Government was entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 1951.
In regard to the position after year 1958 the Court came to the conclusion that the quota rule ceased to apply and came to an end on January 16, 1959, when the sanction to upgrade 100 temporary posts in Class II, Grade III to Class I, Grade II was given by the President.
The seniority rule then fell with quota rule.
On these considerations the Court held that the seniority list.
was valid in regard to promotions made up to January 15, 1959 to the. extent that it was prepared on the basis of the quota rule dated October 18,1951 read with Seniority Rule l(f)(iii).
As a corollary, the Court set aside the seniority list of July 15, 1968 and directed the Government to prepare a fresh seniority list.
The List for the years 1955 to January 15, 1959 was directed to be prepared in accordance with the quota rule of 1951 read with Seniority Rule l(f) (iii).
The List to be effective from January ]6, 1959 was directed to be prepared in accordance with the rules to be made afresh by the Government.
On February 9, 1973 the President made rules called the Income Tax (CIass I) Service (Regulation of Seniority) Rules 1973 under Article 309 of the Constitution giving retrospective effect from January 16, 1969.
In pursuance of the liberty reserved to the parties under the Judgment in the first Gupta 's case the validity of the new seniority rules was challenged by the promotees once again.
The challenge was considered and repelled by the Court in Bishan Swarup Gupta etc.
vs Union of India and Ors.[1975] 1 S.C.R. 104, second Gupta 's case.
, When the new list of seniority was prepared by the Government, in accordance with these rules, the Government had on its hand 73 promotees who though appointed earlier between 1956 and 1958 had no quota post, for their absorption.
The 73 promotees described as "spill overs on January 15, 1959", as also those who were promoted subsequently had to be absorbed in the Service, which could only be done by a special rule framed in that behalf.
The new seniority rule contained a formula for the absorption OF all promotees with effect from January 16, 1959 in posts allocated to them, it determined their seniority inter se and last but not the least it determined their seniority qua the direct recruits appointed from 1959.
The Court overruled the objection of the '73 ' spill over promotees that since in the first Gupta 's case the Court had directed that they should be absorbed on a "priority basis".
all of them should have been shown in the seniority list as having been pointed on January 16, 1959 en bloc and the direct recruits for that year should have been shown thereafter.
It was explained that by use of the expression "priority basis" what was meant by the Court was that the position or the spill over promotees as seniors should not be prejudiced by claims made by later promotees on the ground that since the spill over promotees were recruited in excess of the quota, the later promotees whose promotion did not violate the quota rule had higher rights than those 73.
The Court further held that, v he the 73 spill over appointments were made, there were no allocated or earmarked posts to which those promotees could have been validly appointed.
the ordinary consequence of which would have been their revision to Class II posts which they originally held.
So long as the quota rule was in existence appointments in excess of the quota, though invalid when made, were atleast liable to be regularised in subsequent years when vacancies were available.
to the promotees as a consequence of the quota rule But.
Once the quota rule ceased to exist on January 16, 1959, any possibility of the excess appointments of the promotees being regularised vanished.
It was in order 815 to overcome this injustice to the promotees, that the new rule was framed by the Government.
The new rule was thus not only the direct outcome of the judgment or the Court in the Ist Gupta case, but it was followed on the very principles on which the Income tax Service had been constituted.
The Court finally said that it had also to be remembered that promoteeS appointed from January 16, 1959 onwards were appointed on an officiating or ad hoc basis with notice that the question of their seniority was still undecided.
This circumstance coupled with the absence of clear allocation of posts, made it impossible for the promotees to lay claim to seniority and contend that they were deprived of their natural seniority in violation of Article 16.
The petitioners who were promotee Income Tax officers Class I, Grade II prayed for reconsideration of these three decisions section G. Jai Singhani vs Union of India and Anr. ; ; Bishan Swarup Gupta vs Union of India and Ors.(First Gupta 's case), ; Bishan Swarup Gupta etc.
vs Union of India and ors.
(Second Guptas case) ; and to the extent section G. Jai Singhani 's case is relied upon in Union of India vs Malji Jangamayya etc.
; , On the following grounds: 1.
The Conclusion that Rule 4 of the Income Tax officers (Class l.
Grade II) Service Recruitment Rules is statutory and, therefore, the quota prescribed by the Government of India for recruitment to Income Tax officers Class I, Grade II in exercise of the power conferred by Rule 4 would be statutory, proceeds on an assumption not warranted by the provisions of law bearing on the point and if both Rule 4 and the quota presumably prescribed in exercise of the power conferred by Rule 4 are not shown to be statutory; the foundation of which the edifice in section G. Jai Singhani 's case rests is knocked down because it can be demonstrably established that neither rule 4 nor the quota, prescribed thereunder was statuary in character but was at best an administrative instruction.
After the Court on an interpretation of the quota rule held that the quota was related to vacancies arising in the grade every year, the conclusion reached did not conform to this finding but accommodated the so called inability (now shown to be factually incorrect) of the Government of India to give information to the Court about the vacancies in the grade every year with the result that the whole calculation of spill over is vitiated.
The mandamus issued in Jai Singhani 's case was misinterpreted by the Government because even if the quota was statutory it was operative only between 1951 and 1956 but the Government interpreted the mandamus to be operative beyond 1956 and upto 1967 which misinterpretation has been pointed out in the first Gupta 's case.
In the first Gupta 's case while holding that the mandamus directing, to treat the quota statutory beyond.
1956 was not justified yet till January 16.
1959, the Court itself indirectly accepted the quota rule as a guideline and treated that there was a spill over of 73 promotees.
If Rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived its prescribed span of life in 1956 could not be brought in to treat any appointment as invalid on the ground that there was no allocated post for those appointees treated as spill over because under Rule 4 itself the Government had power to determine the method or methods to be employed for the purpose of 816 filling in particular vacancies or such vacancies as may be required to be filled in during any particular period and the number of candidates to he recruited by each method.
The action of the Government of upgrading 214 posts between 1959 and 1962 from Class II, Grade II to Class I, Grade II was not open to question as at that stage there was no quota rule and Rule 4 enabled the Government to make recruitment from either of the two sources in exercise of its executive power.
In regard to the second Gupta 's case the Court introduced quota rule retrospectively by the back door which is impermissible and its operation manifestly establishes its utter unfairness inasmuch as a direct recruit nor any where in the department or may be a student may secure a march over a promotee which has been working in Class I, Grade II.
Dismissing the petitions the Court, ^ HELD: Per Chandrachud, C.J. (On behalf of N. L .
Untawalia, P. S Kailasam, E. section Venkataramaiah, JJ.
and himself).
(Majority view) i. A consideration of certain historic facts in this case makes it clear that there is no substance in the request made for a review of the decisions in Jai Singhani vs Union of India and Ors., ; ; Bishan Swarup Gupta vs Union of India and ors.
(Ist Gupta 's case) [1975] supplementary S.C.R. 491; Bishan Swarup Gupta vs Union of India & Ors.; Second Gupta 's case [1975] 1 S.C.R. 104 and Union of India vs Malji Jangamayya[1977] 2 S.C.R. 28.
[840 E F] For nearly a. decade after 1950, appointments of promotees were made far in excess of the quota available to them.
So long as the quota rule operated.
it was possible to regularise their appointments when posts within their quota became available in later years.
But a somewhat unprecedented situation arose by the upgrading of Class II posts to Class I grade II 100 of them on January 16, 1959 and 114 on December 9, 1960.
This massive upgrading of posts brought about a collapse of the quota rule.
Subsequent absorption in posts which became available for being filled up later really means regularisation of appointments, which is possible provided there is no excessive deviation from the quota rule.
[840 G H, 841 A] It is true that no blame can be laid at the doors of the promotees on the score that they were appointed in excess of tho quota available to them.
Perhaps, their appointments must even have enabled the administration to tide over administrative stale mate.
But the tough problem which the administration has to face is that whereas it is necessary to recognise and protect the claims of promotees who were appointed in excess of their quota, is equally necessary to ensure that the direct recruits do not suffer an nude set back in service on account of the appointments of promotees.
The conflicting claims of the two components of Service, both having an importance of their own, have therefore to be reconciled.
It was with that object that the rules have been modified from time to time.
The judgments rendered by this Court in the aforesaid four cases show, without a shadow doubt, how every effort was made to ensure that no hardship or injustice is caused to the promotees merely because their appointments exceeded their quota.
[841 A C] 2.
It is not correct to say that the judgment in Jai Singhani was based on a concession or that the Court felt compelled to draw the particular conclusions 817 therein because of the inability or refusal of the Finance Ministry to produce A the relevant files.
The Court adopted what it considered in the circumstances to be a satisfactory and scientific method of ascertaining the number of vacancies available for being file up.
It came to the conclusion that the number of actual appointments should determine the number of vacancies available which was a perfectly legitimate conclusion to draw.
In the grey area where service rules operate, more than one view is always possible to take without sacrificing either reason or commonsense but the ultimate choice has to be necessarily conditioned by several considerations ensuring justice to as many as possible and injustice to as few.
There was no error in the conclusion in Jai Singhanni that Rule 4 of the Recruitment Rules was a statutory rule Subsequent decisions would show that there was hardly any dispute between the parties, at later stages at any rate, that Rule 4 was a statutory rule.
[841 D G] 3.
No doubt, the promotees should not be penalised for the mere reason that those of them who were appointed after January 16, 1959 were appointed on an officiating or ad hoc basis and had clear notice that the question of their seniority was still undecided.
The circumstances attendant upon their appointments cannot, however, be wholly overlooked in determining whether the constitutional constraints have been over stepped.
[841 H, 842 A] 4.
It is not safe to test the constitutionality of a service rule on the touch stone of fortunes of individuals.
No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service.
The paramount consideration is the reconciliation of conflicting claims of two important constituents of Service, one of which brings fresh blood and the other mature experience.
[842 A C] 5.
Though the promotees submitted in the Second Gupta case that the new seniority rule was unfair to them, they were unable to put forward any rational alternative.
On the contrary the counter affidavit dated August 31, 1973 file in the Second Gupta case by Shri Mehra., the Deputy Secretary Finance, shows the fullness with which the Government had consulted all possible interests while framing the impugned rules of seniority.
The gamut of reasonable possibilities is fairly covered by the four alternatives referred to in Shri Mehra 's affidavit.
The inconveniences and disadvantages flowing from the first three alternatives would be far greater than those flowing from the fourth.
That is why the choice ultimately fell on the fourth alternative under which the seniority between promotees and direct recruits was filed alternately on a roster system, vacancies being equally divided between promotees and direct recruits, for the entire period from 1959 up to date.
The observation of the Court in the Second Gupta 's case at page 119 shows how difficult it is to solve the jig saw puzzle of service disputes.
[842 C Hl G 6.
The report of the 'Committee on petitions ' of the Rajya Sabha, howsoever, sincerely motivated and fully drawn cannot be given the importance which the promotees seem to attach to it.
In paragraph 16 of its Report the Committee does refer to certain files but those files appear to contain some notions in regard to the direct recruitment only.
The Committee has given a table of comparative appointments in paragraph 19 of its Report but it had to speculate on an important aspect of the matter, as is shown by its own language, that the table shows the member of direct recruits which the Government wanted to take and "on the basis of which the promotees must have been given promo 818 tions".
If indeed the relevant files were produced before the Committee, it would not have expressed its sense of deep shock and resentment at the disappearance of the files.
Further para 32 of the Report shows that the Committee had to grope in the dark and indulge in a certain amount of speculation on matters under its consideration.
In the circumstances it has done as good a job as a Committee can and no fault need to found with it.
But nevertheless the said Committee 's report cannot displace the Courts judgments.
[842 H, &43 A C] Even on merits there is no justification for considering the judgments already rendered by this Court inasmuch as no fresh facts were brought to notice by way of discovery of new and important evidence which would justify reconsideration of the decisions already rendered by this Court after the most careful examination of the competing contentions.
The report of the Rajya Sabha Committee on petitions shows that the relevant files are still not traceable.
[843 E F, G H, 844 A] Per Desai, J. (contra ) 1.
While, no doubt, the Supreme Court has constitutional rower lo review its decision, it is a power to be sparingly exercised because any such review has the tendency to unsettle questions which may have been finally determined.
The Supreme Court does not lightly undertake review of its decisions more especially where conflicting claims have been settled by the decision of this Court and the whole gamut may have to be gone through over again on a reconsideration of the decision.
While exercising inherent power to reconsideration and review its earlier decision, the Supreme Court would naturally like to, impose certain reasonable limitations and would be reluctant to entertain plea for reconsideration and review all its earlier decisions unless it is satisfied that there are compelling and substantial reasons to do so.
It is general judicial experience that in manners of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonable possible views, the process of decision making is often very difficult and delicate.
[846 A B, 847 C, G H. 848 A B] In deciding whether a review is necessary when two views are possible it would not necessarily be an adequate reason for such review and revision to hold that though the earlier view is reasonably possible view the alternative view which is pressed on the subsequent occasion is more reasonable.
The Court 's discretion should be guided by such consideration whether in the interest of public good or for any other valid or compulsive reason it is necessary that the: earlier decision should be revised.
[848 B C] Sajjan Singh vs State of Rajasthan, [1965] 1 S.C.R. 931; Keshav Mills Co. Ltd. vs commissioner of Income Tax, Bombay North, & 921; Manganese Ore (India) Ltd. vs The Regional Assistant Commissioner of Sales Tax, Jabalpur, ; applied, 2.
Jai Singhani case proceeds on a concession that Rule 4 and the quota prescribed by the Government referable to the power conferred by Rule 4 were statutory in character.
[848 D E] Income tax service was reconstituted on September 29, 1974.
The Government of India classified the existing income tax service as Class I and Class II.
819 The scheme provided for recruitment of income tax officers Class I grade II partly by promotion and partly by direct recruitment.
The scheme was set out in the Government of India Finance Department (Central Revenues) letter dated September 29, 1944.
The quota prescribed therein has undergone a revision at a later date.
The rules being Pre constitution Rules, their source must be traced to the Government of India Act, 1935.
Section 241 of the 1935 Act made provision for recruitment and conditions of service.
Section 241 makes it clear that the power to make appointments in the case of service of Federation and posts in connection with the affairs of the Federation was conferred on the Governor General or such person as he may direct.
The power to make rules in this behalf was conferred by sub section ' ' on the Governor General or by some person or persons authorised by the Governor General to make the rules fol the purpose.
But, the rules were not made either by the Governor General or such person authorised by him. 'The rules were made by the Finance Department and no material was placed to show that the persons or the persons who made the rules were authorised by the Governor General, under Section 241(2) of the 1935 Act in this behalf.
The assumption made therefore, that Rule 4 of the Rules are statutory and that the quota prescribed in exercise of the power conferred by Rule 4 must be statutory is ill founded This knocks out the entire foundation of the judgment of this Court in Jai Singhani 's case because this Court proceeded to hold that as the quota was statutory, any recruitment made in excess of the quota in any given year would be invalid and at best can be regularised by relegating such excess appointment to the quota next year.
If Rule 4 and the quota referable to the power conferred by Rule 4 were not statutory but were merely execute instructions, its violation would not render any appointment in excess of it invalid but at best would be irregular and in this case on a plain reading of Rule 4 it would not even be irregular.
[848 G H, 849 A E] 3.
In P. C. Sethi & Ors.
vs Union of India & Ors.
this Court held that in the absence of any statutory rules it was open to the, Government in exercise of its executive power to issue administrative instructions with regard to constitution and recognition of service as long as there is no violation of Articles 14 and 16 of the constitution.
If the present Rule 4 enables the Government to prescribe method to be employed for the purpose of filling, in any particular vacancy or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method arid if the so called quota is not statutory but merely a guideline, the Government whenever making appointments would be acting in exercise of power conferred by Rule 4 which leaves it to the discretion, of the Government to decide from what Source recruitment should be made and what must be the quantum of vacancies that must be filled in at a given point of time and such appointment could not be said to be invalid.
[849 E H] Alternatively.
even if the assumption made in Jai Singhani 's case that Rule 4 and the quota referable to the exercise of power conferred by Rule 4 is unquestionable yet when this Could held that the quota is related to the vacancies, the decision proceeding on an incorrect plea that the information about the number of vacancies in a year is not available, is unsustainable for two reasons, namely,(1) that the files are now produced; (2) in the absence of information about the vacancies available the Court could not have invalidated any appointment on the assumption that appointment from the source of promotees was in excess of the quota.
[850 A B] 820 on a plain levelling of Rules 3,, 4 and 5, it is clear that the, quota was related to vacancies and at one stage that was accepted.
On this finding unless the fact situation is clearly established showing vacancies year to year it would be impossible to hold that in any year there was excess in either source.
Suppose there were 90 vacancies in a year and the quota was 66 2/3 for direct recruits all 33 1/3 for promotees it would be open to the Government to promote 30 persons irrespective of the fact whether 60 direct recruits have become available or not.
The assumption made that the recruitment made in a given year from both the sources would furnish information about the vacancies in a year would lead to a rather unfair conclusion inasmuch as the action of the Government in acting in a certain manner without due regard to the quota rule would work hardship on appointees even though on a correct calculation of vacancies the appointments may be valid and legal.
[850 C E] 4 The Government understood the mandamus issued in Jai Singhani 's case as covering, the whole period from 1951 to 1967.
When this was questioned in the First Gupta 's case this Court held that the quota rule proprio vigme operated between 1951 to 1956 and if there were promotions in any year in excess of the quota.
those promotions were merely invalid for that year but they were not invalid for all time and they could be regularised by being absorbed in the quota for the later years.
So adjusting the quota at any rate np to 1956, the quota rule on its own strength evaporated because it was to be in operation for a period of five years and no fresh quota rule was issued by the Government.
Therefore, after 1956 Rule 4 remained in force in ' all its r ignore and was not hedged in by any quota.
Rule 4 permitted the Government to make recruitment from either source without fettering its discretion by any quota rule which it was not bound to prescribe.
On January 16, 1959 Government hl the Ministry of Finance informed the Commissioner of Income tax that the resident had sanctioned the upgrading to Class I of one hundred temporary posts of Income Tax officers Class II.
On December 19, 1960 there was further upgrading of 114 posts from Class II to Class I. Between 1959 and 1962 these 214 posts were filled in by promotees.
Now in the First Gupta 's case, this Court held even though the quota expired in 1956 yet the Government of India adopted it as a guideline.
May be it may be so.
But, it cannot be said that.
any appointment in breach of the guideline neither statutory nor even having the fragrance of any executive instruction becomes invalid more so, when the Government had power to make appointment from either source uninhibited by any quota rule under Rule 4.
Yet the Court found that between 1956 and 1959 when one hundred posts came to be upgraded there was a spill over of 73 persons and because of the huge departure from guidelines the weightage rule giving seniority to the promotees by 2 to 3 years was crushed under its own debris.
Again, Rule 4 is overlooked or by passed when saying that.
there was a spill over of 73 promotees between 1956 and 1959, nor could it be said that the upgrading of 214 posts and filling them up by promotees would be in any way even irregular much less invalid because Rule t enables the Government to draw from either source.
[851 A G] 5.
In the Second Gupta 's case in view of the decision in the First Gupta 's case, a fresh seniority rule was prepared and it was made retroactive from January 16, 1959.
lt, inter alia, provides that the relative seniority amongst the promotees and the direct recruits shall be in the ratio of 1: 1 and the same shall be so determined and regulated in accordance with a roster main 821 tained for this purpose which shall follow the following sequence, namely, promotee; direct recruit, promotee; direct recruit etc.
This method of roster undoubtedly introduces a quota by the back door.
Once a roster is introduced promotee direct recruit, promotee direct recruit etc.
even if some promotees have come in a bulk and if at a later date some direct recruits are appointed in bulk while preparing roster an earlier date promotee will have to yield his place to a later date direct recruit.
Bluntly translated it means that the direct recruit who was never in service when promotee was promoted probably he may be a student, he may not have even passed the competitive examination, yet he may come into the picture challenge one who has already been serving in the department for a number of years.
To illustrate in the new seniority list prepared by the Government pursuant to the order made by this Court in the First Gupta 's case and upheld by this Court in the Second Gupta 's case a promotee of 1962 will have to yield his place to a direct recruit of 1966.
[851 G H, 852 A D] C 6.
Service jurisprudence hardly permits a situation where a man not in service comes and challenges something which has been done much before he came into service and gets such an advantage which on the face of it appear to be unfair.
But apart from this, even in 1959 there was no quota rule and assuming that the old service rule giving weightage to the promotees crushed under weight of large number of promotees being promoted it would not be open to the Government to so prepare a fresh seniority list which cannot be given effect to unless a roster is introduced which introduces quota by the back door and which is so unfair in its operation that promotees of 1962 will have to yield place to direct recruits of 1966.
Under the old weightage rule promotees were given weightage for service of 2 to 3 years over direct recruits because direct recruits were unable to undertake regular assessment work for a period of 2 to 3 years when they were more or less under training while promotees have been doing this work for a number of years and whose experience is reflected in the weightage.
The whole thing now appears to be in the reverse gear in that an uninitiated direct recruit takes precedence over an experienced promotee.
The unfairness of the new rule is writ large on the face of the record.
[852 E H] 7.
The fresh seniority rule violates another important rule well recognised principle in the service jurisprudence that in the absence of any valid rule of seniority date of continuous officiation provides a valid rule of seniority.
This rule is completely crucified upon two unsustainable assumptions that a quota rule having guideline sanction is made imperative in character and assumed to be in force between 1956 and 1959, and that even though Government in exercise of power conferred by Rule 4 for its own necessity promoted 214 promotees to the upgraded post, yet they must yield to some future direct recruits who may come to the department at a later date.
This Court sustained the decision holding that these were ad hoc appointments and there are no regular posts for these promotees.
This approach wholly overlooks the fact and the force of Rule 4.
[853 A C] 8.
Certainty and continuity demand that this Court should not reopen settled decisions or reopen closed questions unless under compelling necessity.
It may he that the fact of Income Tax officers promotees and direct recruits may rest with the three decisions of this Court.
Unfairness to some of them H may itself not provide a good and compelling reason for reopening and reconsidering the decisions.
[853 C D] 822 Jai Singhani and the Two Gupta cases are being quoted, times without number before this Court for the principles enunciated therein.
These decisions, therefore, affected subsequent decisions of this Court as well as the High courts and some of the principles enunciated in these three cases stand in sharp contrast to other decisions of this Court and in fact this Court itself felt it necessary to warn that it may become necessary to reconcile these conflicting decisions.
The three decisions are incorrect in the light of the materials now placed, especially the files which were withheld from the Court and the Committee.
A strong case has been made out for reconsideration of these decisions [853 E F, 854 C D] N. D. Chauhan & Ors.
vs State of Rajasthan & Ors.
; and 1053 referred to.
|
Civil Appeal Nos.
2361 2364 of 1972.
Appeals by special leave from the Judgment and Order dated 17 5 72 of the Allahabad High Court in Sales Tax Ref.
Nos. 693 to 696/70.
section C. Manchanda, Shiv Pujan Singh and M. V. Goswami for the Appellant.
(In all the appeals) V. section Desai and Rameshwar Nath for the Respondent.
The following Judgments were delivered: UNTWALIA, J. The Commissioner of Sales Tax, Lucknow has filed these four appeals by special leave against the judgment of the Allahabad High Court given in four sales tax references under the U.P. Sales Tax Act, 1948, hereinafter referred to as the Act.
595 The assessee respondent owns some tea gardens in the State of U.P.
The tea leaves grown by the respondent in his gardens are sold in the market after being processed and packed.
The stand taken on his behalf before the taxing authorities was that the tea leaves sold by the respondent are agricultural produce grown by himself and, therefore, the sales were not exigible to sales tax.
The contention of the assessee was not accepted and the final Revising Authority made four references in respect of the four periods to the High Court on the following question of law: "Whether on the facts and circumstances of this case the article ceased to be an agricultural produce and whether the tea produced by the assessee would be exigible to sales tax?" The High Court has answered the reference in favour of the assessee and against the revenue.
Hence these appeals by the department.
Under section 3, the charging section, of the Act it was the turn over for each assessment year determined in accordance with the various provisions of the Act and the Rules framed thereunder, which was chargeable to sales tax.
The definition of 'turnover ' given in section 2(i) of the Act at the relevant time stood as follows: " "Turnover" means the aggregate amount for which goods are supplied or distributed by way of sale(or are sold), or the aggregate amount for which goods are bought, whichever is greater by a dealer, either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration: Provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, or poultry or dairy products from fowls or animals kept by him shall be excluded from his turnover.
" The above proviso was meant to exempt an agriculturist or a horticulturist from the charge of sales tax in respect of his agricultural or horticultural produce grown by himself in his land in which he has an interest of the kind mentioned in the proviso.
The short question which falls for our determination, therefore, is whether the assessee 's transactions of sale came within the ambit of the proviso.
Indisputably and undoubtedly the assessee was an agriculturist, the 596 tea leaves grown by him in his land were agricultural produce, and he had sold them after processing and packing.
In other words the assessee made them marketable and fit for consumption by the consumers and then sold them.
If the tea leaves so sold substantially retained the character of being an agricultural produce, it is plain that the assessee 's sales will not be exigible to sales tax.
If, on the other hand, the leaves had undergone such vital changes by processing that they lost their character of being an agricultural produce and became a different commodity then the sales made by assessee were exigible to sales tax.
The High Court has extracted the primary findings of fact recorded by the Revising Authority in its revisional order.
As is well known tea leaves are plucked from tea plants as green tea leaves.
The tea leaves so plucked are not fit for consumption and are not sold in the open market.
They are often purchased by big tea concerns from the owners of the gardens and after processing and packing them they (the concerns) sell them in the market.
Since in their cases the proviso will not apply the sales will be exigible to sales tax.
But when the producer himself does the same or similar kind of job, then the question arises whether it can be justifiably said that he also cannot take advantage of the proviso? The primary facts as extracted by the High Court from the order of the Revising Authority are the following: (1) "The tea leaves were first of all subjected to withering in shadow in rooms on a wooden floor for about 14 hours." (2) "then they were crushed by hand or foot and were then roasted for about 15 minutes." (3) "Later they were roasted on mats for about 15 minutes." (4) And then they were "covered by wet sheets for generating fermentation.
During this process the colour of leaves was changed from green to yellowish." (5) "the leaves were then subjected to grading with sieves of various sizes.
Fanning machines are also used in completing the grading process." (6) "The produce was then finally roasted with charcoal for obtaining suitable flavour and colour.
" 597 (7) "It is this final product which was eventually sold by the assessees.
" The question for consideration is whether on the findings aforesaid it can be justifiably held in law that the leaves lost their character of being an agricultural produce and became something different.
It should be remembered that almost every kind of agricultural produce has to undergo some kind of processing or treatment by the agriculturist himself in his farm or elsewhere in order to bring them to a condition of non perishability and to make them transportable and marketable.
Some minimal process is necessary to be applied to many varieties of agricultural produce.
As for example, when wheat stalks are cut from the farm, threshing and winnowing have to be done.
The product so obtained has to be dried for a few days.
The husk and dust have to be separated.
Thereafter packing the wheat in bags or other containers it is taken to the markets for sale.
One can never suggest that such a wheat product becomes a commodity different from the one which was produced in the process of agriculture.
To pursue that example further, if the agriculturist who produces the wheat has a flour mill and crushes the wheat produced by him in that mill and then if the flour so produced is sold by him one can never reasonably suggest that the flour sold by him is an agricultural produce, because in that event, the manufacturing process goes beyond the limit of making the agricultural produce fit for marketing as such and turns it into a different commodity altogether i.e. flour.
But there may be some other kinds of agricultural produce which required some more processing to make it marketable.
In the case of such a commodity what one has to judge is to find out whether in relation to that agricultural produce the process applied was minimal or was it so cumbersome and long drawn that either in common parlance, or in the market, or even otherwise, any body would not treat the produce as an agricultural produce.
The mere fact that in the case of a particular product the process is a bit longer or even a bit complicated will not rob the produce of its character of being an agricultural produce.
Largely the inference to be drawn from the primary facts of processing, one may say, will be an inference of fact.
But it is not wholly so.
In a given case it will be a mixed question of fact and law.
If wrong tests are applied in drawing the inference that the agricultural produce has lost its character of being so, then it will be a question of law and the High Court will have jurisdiction in an appropriate reference, as in the present case it had, to decide whether the case came under the proviso to section 2(i) of the Act.
598 Unlike many agricultural products tea leaves are not marketable in the market fresh from the tea gardens.
No body eats tea leaves.
It is meant to be boiled for extracting juice out of it to make tea liquor.
Tea leaves are, therefore, only fit for marketing when by a minimal process they are made fit for human consumption.
Of course, the processing may stop at a particular point in order to produce inferior quality of tea and a bit more may be necessary to be done in order to make it a bit superior.
But that by itself will not substantially change the character of the tea leaves, still they will be known as tea leaves and sold as such in the market.
In my opinion all the six processes enumerated above from the primary findings of fact recorded in the order of the Revising Authority were necessary for the purpose of saving the tea leaves from perishing, making them fit for transporting and marketing them.
The process applied was minimal.
Withering, crushing and roasting the tea leaves will be surely necessary for preserving them.
The process of fermentation or final roasting with charcoal for obtaining suitable flavour or colour and also the process of grading them with seives were all within the region of minimal process and at no point of time it crossed that limit and robbed the tea leaves, the agricultural produce, of their character of being and continuing as such substantially.
In my opinion, therefore, the view expressed by the High Court is quite justified and sustainable in law.
In Volume 21 of Encyclopaedia Britannica (1968 edition) under the head 'Tea ' are dealt with at page 739 the processes of cultivation and manufacture of tea.
Under the sub head 'Cultivation ' it is found stated: "Tea leaves are plucked either by hand or with special shears.
In the tropical areas of southern India, Ceylon, and Indonesia, harvest continues throughout the year, but in the subtropical regions of northern India and China and in Japan and Formosa, the harvests are seasonal.
The flavour and quality of the tea leaves vary with the climate, soil, age of the leaf, time of harvest (even from season to season), and method of preparation.
" Then comes the sub head 'Manufacture ' which enumerates the categories of three classes of teas and then it is mentioned: "Most stages of processing are generally common to the three types, of tea.
First, the fresh leaves, are withered by exposure to the sun or by heating in trays until pliable (usually 18 24 hours).
Next the leaves are rolled by hand 599 or machine in order to break the leaf cells and liberate the juices and enzymes.
This rolling process may last up to three hours.
Finally, the leaves are completely dried either by further exposure to the sun, over fires, or in a current of hot air, usually for 30 40 minutes.
" In making black tea, the leaves, after being rolled, are fermented in baskets or on glass shelves or cement floors under damp cloths.
"The process of fermentation, or oxidation, reduces the astringency of the leaf and changes its colour and flavour.
" About green leaves it is mentioned "Green tea is made by steaming without fermentation in a perforated cylinder or boiler, thus retaining some of the green colour.
The leaves are lightly rolled before drying.
" It would thus be seen that the tea leaves as plucked have got to pass through stages of processing of one kind or the other in order to make them fit for human consumption, as in the case of paddy and many other commodities dehusking in the case of former and some other kind of process in regard to the latter has got to be done in order to make them marketable and fit for consumption.
There are two decisions of the Madras High Court in The State of Madras vs R. Saravana Pillai(1) and N. Deviah Gowder vs Commercial Tax Officer, Coimbatore(2) where a similar question arose with respect to arecanuts.
At page 544 of the first case which was followed in the second occurs a passage which may be usefully quoted here: "As we have pointed out, it was common ground that there is no market in Coimbatore or elsewhere for arecanuts as they are when plucked from the trees, and it should be remembered they are gathered when they are still unripe.
The proviso to section 2(i) of the Act is obviously conceived in the interests of agriculturists.
It excludes from any tax liability under the Act sale of agricultural and horticultural produce, the primary condition to be satisfied being that it must be produce of the land which either belongs to the seller or of the land in which he has an interest as specified by section 2(i).
To restrict that concession to sale of arecanuts, for instance, only if those arecanuts are sold in the state in which they are immediately on being gathered from the trees, would render the statutory exclusion meaningless.
" I approve of this decision.
600 There are two decisions of the Bombay High Court given in relation to the question of sugarcane being converted into jaggery.
They are: R. B. N. section Borawake vs The State of Bombay(1) and Commissioner of Income Tax, Poona vs H.G. Date.(2) In the former case it was observed at page 11: "It is true that gur cannot be regarded as an agricultural produce grown on land.
But if gur is prepared out of the agricultural produce which is grown on land, in the absence of any indication to the contrary suggesting that the agricultural produce must be sold in the form in which it is grown, we will be justified in holding that an agriculturist who is exclusively selling agricultural produce grown on the land either in the form in which it is grown or in the form in which it is converted for the purpose of transportation or preventing deterioration is within the exception provided by section 2(6).
In the present case, with a view to prevent deterioration and for the purpose of facilitating transportation the assessee converted the sugar cane grown by him into gur and sold it.
" It appears to me that this case has gone a bit too far and on an appropriate occasion it may require further consideration.
Nonetheless, in the instant case one can safely conclude, as I have done, that with a view to prevent deterioration and for the purpose of facilitating transport and making it marketable the assessee himself did some processing to the plucked tea leaves and hence the High Court was right in holding that such sales were not exigible to sales tax.
Similar or identical principles have been applied by other High Courts also in respect of different commodities such as rubber, sole crepe, casuarina, pig bristles etc.
The cases are Deputy Commissioner of Agricultural Income Tax and Sales Tax, South Zone vs Sherneilly Rubber & Cardamom Estates Ltd. & Others(3).
Deputy Commissioner of Agricultural Income Tax and Sales Tax, Quilon vs Travancore Rubber and Tea Co., Ltd.;(4) Commissioner of Income Tax vs Woodland Estates Ltd.;(5) Rayavarapu Mrityanjaya Rao vs 601 The State of Andhra Pradesh(1) and Commissioner of Sales Tax, U.P., Lucknow vs Harbilas Rai and Sons.
(2) Broadly speaking these cases have been decided on application of the correct principles of law.
Reliance on behalf of the Revenue was placed upon a few cases.
None of them supports the department 's contention.
I may notice only two or three of them.
In Killing Valley Tea Company, Ltd. vs Secretary to State(3) the question for consideration related to the tax liability of the Killing Valley Tea Company under the Income Tax Act, 1918.
If the whole of its income was derived from agriculture, the assessee was not liable to pay income tax.
If, however, the activities of the Company, which produced income were attributable partly to agriculture and partly to its manufacturing activities, then the whole of the amount could not have been taxed under the Income Tax Act.
The stand of the Company was "the actual leaf of the tea plant, without the addition thereto of the processes above described, is of no value as a market commodity.
" On behalf of the Revenue it was contended "that the manufacturing processes carried out in a modern tea factory, with scientific appliances and up to date machinery, are different from those ordinarily employed by a cultivator to render the produce raised by him fit to be taken to market.
" The High Court held "that the process in its entirety cannot be appropriately described as agriculture.
The earlier part of the operation when the tea bush is planted and the young green leaf is selected and plucked may well be deemed to be agriculture.
But the latter part of the process is really manufacture of tea, and cannot, without violence to language, be described as agriculture.
The green leaf is not marketable commodity for immediate use as an article of food, but it is a marketable commodity to be manufactured by people who possess the requisite machinery into tea fit for human consumption.
" After referring to some authoritative books on Tea, the view expressed by the High Court was "that the entire process is a combination of agriculture and manufacture." Hence only a part of the income was held to be taxable.
In the instant case the problem is quite distinct and different.
Here we are concerned with the question whether the commodity which the assessee sold as tea was his agricultural produce or not.
He had not sold his tea leaves from his gardens to any manufacturing tea 602 company.
He had himself applied some indigenous and crude manufacturing process in order to enable him to sell his tea in the market.
In such a situation I have no difficulty in holding that the sale was of his agricultural produce.
In The State of Madras vs Swasthik Tobacco Factory(1) the question before this Court was whether the respondent firm which purchased raw tobacco and converted it by a manufacturing process into chewing tobacco and sold it in small paper packets was entitled to deduction of excise duty paid by it on the raw tobacco from the gross turnover of sales of chewing tobacco under rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.
It would be found mentioned at page 318: "Both the advocates argued, on the basis of the factual position, that the packets of chewing tobacco were goods different from tobacco from which the said goods were manufactured.
" On that footing, by interpretation of the rule it was held that only excise duty paid on the goods sold by the assessee is deductible from the gross turnover, and not the excise duty paid on raw tobacco.
This case was followed by the Supreme Court in The State of Madras vs Bell Mark Tobacco Co.(2) In the instant case I have held that the commodity which was sold was not different from the commodity which was produced in agriculture.
The view expressed by the Allahabad High Court in the judgment under appeal which is reported in D. section Bist & Sons, Nainital vs Commissioner of Sales Tax, U.P.(3) is on the lines of the preponderance of views expressed by different High Courts in relation to different commodities.
I approve of the case and dismiss these appeals with costs hearing fee one set only.
PATHAK, J. I agree that the appeals should be dismissed.
But I should like to say a few words in regard to Killing Valley Tea Company, Ltd. vs Secretary to State.(4) That was a case where the Killing Valley Tea Company, Ltd. had a tea plantation and after selecting and plucking the young green leaf from the tea bush by hand it was put through a process of drying and rolling.
The Income Tax Department alleged that the process actually applied to the dry leaf was a manufacturing process carried out in a modern tea factory with scientific appliances and the latest machinery.
The 603 Calcutta High Court, on a consideration of the respective cases of the parties, observed that the entire process could not be described as agriculture, and that the process applied to the tea leaf after it had been plucked was a manufacturing process.
It observed that the green tea leaf was a marketable commodity to be manufactured by people who possessed the requisite machinery into tea fit for human consumption.
It was of the opinion that while the process of selecting and plucking the tea leaf from the tea shrubs could be deemed to be agriculture, the subsequent process which included drying and rolling of the leaf was a manufacturing process.
The High Court drew a distinction between the two processes for the purpose of apportioning the income between agricultural income and non agricultural income.
The question before us is whether after the tea leaf had been put through the process of withering, crushing, roasting and fermentation it continued to be agricultural produce.
If the Calcutta High Court can be said to have laid down that as a result of those processes the tea leaf ceased to be agricultural produce, I am unable to agree with it.
To my mind, the tea leaf remained what it always was.
It was tea leaf when selected and plucked.
and it continued to be tea leaf when after the process of withering, crushing and roasting it was sold in the market.
The process applied was intended to bring out its potential qualities of flavour and colour.
The potential inhered in the tea leaf from the outset when still a leaf on the tea bush.
The potential surfaced in the tea leaf when the mechanical processes of withering, crushing and roasting, fermenting by covering with wet sheets and roasting again were applied.
The tea leaf was made fit for human consumption by subjecting it to those processes.
At no stage.
did it change its essential substance.
It remained a tea leaf throughout.
In its basic nature, it continued to be agricultural produce.
The appeals fail and are dismissed with costs.
Costs are awarded as one set only.
P.B.R. Appeals dismissed.
| IN-Abs | The proviso to section 2(i) of the U.P. Sales Tax Act, 1948 excludes from the term "turnover" proceeds of sale of agricultural or horticultural produce grown by a person on any land in which he has interest.
The assessee, who was an agriculturist, owned tea gardens in the State.
After being plucked from tea shrubs tea leaves are withered in shade in rooms, crushed by hand or foot, roasted for 15 minutes, then covered by wet sheets for the purpose of generating fermentation, graded and finally roasted again with charcoal for obtaining flavour and colour.
The final product is sold in the market.
Before the Sales Tax Authorities the assessee contended that tea leaves sold by him were agricultural produce grown by him on his own land and that, therefore, the sale of tea effected by him was exempt from sales tax under the proviso to section 2(i) of the Act.
The Sales Tax Authorities rejected the assessee 's contention.
The High Court answered the reference in favour of the assessee and against the revenue.
Dismissing the appeal, ^ HELD: (per Untwalia J.): The High Court was right in holding that sales of tea leaves were not exigible to sales tax.
The commodity which was sold was not different from the commodity which was produced in agriculture and, therefore, the proviso to section 2(i) is attracted.
Almost every kind of agricultural produce has to undergo some kind of processing or treatment by the agriculturist himself either on the farm or elsewhere in order to make it non perishable, transportable and marketable.
Some minimal process is necessary to be applied to many varieties of agricultural produce.
The test in these cases is to see whether in relation to that agricultural produce the process applied was minimal or was so cumbersome and long drawn out that either in common parlance or in the market or even otherwise no one would treat the produce as an agricultural produce.
The mere fact that in the case of a particular product the process is a bit longer or even a bit complicated would not rob the produce of its character of being an agricultural produce.
[597 B C; F G] 2.
All the processes enumerated by the Revising Authority were necessary for the purpose of saving the tea leaves from perishing, making them fit for transporting and marketing.
The processes applied were all within the region of minimal processes and at no point of time they crossed that limit and robbed the leaves of their character of being and continuing to be agricultural produce.
[598 C E] 594 Vol.
21 Encyclopaedia Britannica (1968 edition), referred to.
The State of Madras vs Swasthik Tobacco Factory 17 S.T.C., 316, The State of Madras vs Bell Mark Tobacco Co. 19 S.T.C., 129 referred to.
The State of Madras vs R. Saravana Pillai 7 S.T.C., 541, Deputy Commissioner of Agricultural Income Tax and Sales Tax, Sough Zone vs Sherneilly Rubber & Cardamom Estates Ltd. & others.
12 S.T.C. 519, Commissioner of Income Tax vs Woodland Estates Ltd. Rayavarapu Mrityanjaya Rao vs The State of Andhra Pradesh 20 S.T.C., 417, Commissioner of Sales Tax, U.P., Lucknow vs Harbilas Rai and Sons, 21 S.T.C., 17 approved.
Killing Valley Tea Company Ltd. vs Secretary to State A.I.R. 1921 Calcutta, 40 distinguished.
(Pathak, J. concurring).
In Killing Valley Tea Co. Ltd. vs Secretary to State A.I.R. 1921 Calcutta, 40 the Calcutta High Court was of opinion that while process of selecting and plucking tea leaves from the tea shrubs could be deemed to be agriculture, the subsequent process which included drying and rolling of the leaf was a manufacturing process.
If the Calcutta High Court could be said to have laid down that as a result of those processes the tea leaf ceased to be agricultural produce, it is not correct.
The tea leaf remained what it always was.
It was tea leaf when selected and plucked and it continued to be tea leaf when after the process of withering, crushing and roasting, it was sold in the market.
The process applied was intended to bring out its potential qualities of flavour and colour.
The potential inhered in the tea leaf from the outset when still a leaf on the tea bush.
The potential surfaced in the tea leaf when the mechanical processes of withering, crushing and roasting, fermenting by covering with wet sheets and roasting again were applied.
At no stag, did it change its essential substance.
It remained tea leaf throughout.
In its basic nature it continued to be agricultural produce.
[603 B C]
|
tition Nos. 393 & 549 of 1980.
(Under Article 32 of the Constitution) section Markendaya (Amicus Curiae) for the Petitioner.
M. N. Abdul Khader and Miss A. Subhashini for the Respondents.
KRISHNA IYER J. Is a prison term in Tihar Jail a post graduate course in crime? Such is the poignant issue that emerges from the facts of this case. 'The fundamental human right is not to a legal system that is infallible but to one that is fair ' these great words of Lord Diplock in Maharaj vs Attorney General of Trinidad and Tobago (No.2) trigger our jurisdiction to ensure a fair legal deal to the prisoner whose petition to this Court makes frightening exposures about the insiders of Delhi 's Central Jail.
Kaushik, a 'lifer ' (to use jail jargon), now lodged in the Tihar, Central Jail, has moved this quasi habeas corpus petition wherein he bitterly complains with facts and figures, of the terror and horror, physical and psychic, let loose on him and other jail mates by a crypto criminal combination of senior officials and superior prisoners, thereby making the prison life within that walled world such a trauma and torment the law never meant under the sentence suffered at the hands of the court.
Prison torture is not beyond the reach of this Court in its constitutional jurisdiction and so we appointed Shri Subodh Markandeya as amicus curiae and directed the Superintendent of the Jail to make available for him facilities to meet the prisoner Kaushik and to present, after a brief fact finding enquiry, the facts necessary for taking further action, if any.
Shri Markandeya has, with a gush of gusto, executed his work of assisting this Court and made a report, and we record our appreciation therefor.
What makes law a force is a lawyer with a cause.
932 The Delhi Administration has responded through counsel and traversed the grounds in the petition but Shri Abdul Khader, appearing for the State, has fairly agreed that the Superintendent of the Central jail, far from fighting shy of a probe into the prison management and the shocking aspersions cast on it would welcome a judicial investigation where he could prove his innocence of the foul charges levelled.
Were there a modicum of truth in the disclosures made of vice and violence, overt and covert, in the goings on in Tihar such an institutional outrage would make our constitutional culture blush and our judicial punishment 'guilty ' procedure.
And on the materials placed before us there is ground enough to exercise our exceptional but undoubted jurisdiction to ensure some minimum of social hygiene and banishment of licentious excesses lest the sentence of court be frustrated in its dual ends of deterrence and rehabilitation by prison pathology.
Briefly, the petitioner alleges that his life in jail is subjected to intimidation by overbearing 'toughs ' inside, that he is forced to be party to misappropriation of jail funds by and bribery of officers, that homosexual and sexual indulgence with the connivance of officials are going on, that smuggling in and out is frequent and drug racket common, that alcoholic and violent misconduct by gangs like those involved in Bank Robbery and other notorious cases are a menace to quieter prisoners and the whole goal of reformation of sentences is defeated by this supercrime syndrome.
Maybe, like Oscar Wilde, the petitioner, in flinging allegations, considers that "moderation is a fatal thing.
Nothing succeeds like excess".
Making a large margin for unveracious dilution, still if a fragment of truth survives something is rotten in the state of Denmark '.
This Courts ' writ must remove from Tihar face such indelible stain and incurable wound.
When police and prison torture is escalating in our human rights era, courts owe a duty to society not to ignore such a dangerous reality.
"At this time the lack of law and order is especially of prime concern.
Our courts must bear their share of blame and shame for this condition".
Under our Constitution, deprivation of personal liberty as penal policy is purposive and the Penal Code itself is valid because the imprisonment of the criminal is reasonable, not arbitrary, and is sanctioned as a measure of social defence and individual rehabilitation.
A court sentence does not deprive the prisoner of his fundamental rights as a Constitution Bench., in Sunil Batra 's case recently expounded.
933 To reform and deter the criminal and to work out that process geared to social defence, the convict is cast into prison not to make him more hardened, more brutal, more cunning and dangerous to society.
This raison d 'etre of penological institutions in our Gandhian country, with humanism as basic to the constitutional scheme, cannot be written off without peril.
And so it is that, after reading the fearful circumstances revealed in this case we focussed sharply, right at the outset, the grave issue;, Is a prison term in Tihar Jail a post graduate training in tough crime? Is an invisible 'carser ' mafia in defacto management of this penal institution? Should every sentencing judge, high and low, hang his helpless head in frustration and humiliation because institutional aberrations and personnel perversions have sullied and stultified the justice of his sentence? We have been told by counsel for the State that several hundreds of VIPs have (ceremonially) visited and, of course, complimented the jail management.
These conducted tours cannot, in themselves, contradict the contention that this campus of correction has degenerated into a human zoo.
We keep an open mind and examine the facts but must confess that the Tihar Jail has come up for unhappy judicial notice too often in the past.
We must also stress that the human rights of common prisoners are at a discount and, in our Socialist Republic, moneyed 'B ' class convicts operate to oppress the humbler inmates.
Can there be inequality in prison too on the score of social and financial status? Bank robbers in 'B ' class because they are rich by robbery and nameless little man in 'C ' class because they are only common Indians! Article 14 is suffocated if this classification is permitted, and yet that according to rule itself, is prevalent as this Court has even in earlier cases pointed out.
This Court must act, will act, to restore the rule of law and respect the residual fundamental rights of any harassed petitioner.
We are aware that general charges and sweeping complaints may tarnish innocent officers.
We do not intend to find fault with any until proof is forthcoming.
We are conscious that correctional orientation and cautious humanization have changed the attitudes of many jail officials.
To blame them is beyond our purpose or power but to protect the caged humans from torture, gross or subtle, beyond what the law permits is our function, indeed, our duty.
From this perspective we may rapidly survey the circumstances and mould the reliefs.
Prison Jurisprudence, developed through case law and derived from constitutional law, already exists.
As a jurisdictional matter and background setter we may briefly refer to some of these aspects 934 before we discuss the controversial questions.
In the Sunil Batra Case the Constitution Bench brushed aside the 'hands off prisons ' doctrine, upheld the fundamental rights of prisoners, though circumscribed severely by the reality of lawful custody.
Desai, J., speaking for three of his colleagues and broadly concurring with the fourth clarified two positions (a) that fundamental rights did not forsake prisoners, and (b) that the penological purpose of sentence was, importantly, reformatory, even though deterrent too.
In a later case, Sunil Batra vs Delhi Administration (supra) another bench explained: The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration.
In a few cases, this validation of judicial invigilation of prisoners ' condition has been voiced by this Court and finally reinforced by the Constitution Bench in Batra (supra).
The Court need not adopt a "hands off" attitude . in regard to the problem of prison administration.
It is all the more so because a convict is in prison under the order and direction of the Court.
Under the caption "Retention of Authority over Prisoner by Sentencing Judge" (Krantz notes).
As noted by Judge Lay in a Judicial Mandate, Trial Magazine (Nov. Dec. 1971) at p. 15 It should be the responsibility of the court in imposing the sentence to set forth as it would in any equitable decree, the end to be achieved and the specifics necessary to achieve that purpose.
If then, we are to have accountability in the execution of the sentence, courts must make clear what is intended in the imposition of the sentence.
Every sentence should be couched in terms similar to a mandatory injunction.
In this manner, the penology system is to be held to account if the government does not faithfully execute the order.
In other words, the sentencing court should be required to retain jurisdiction to ensure that the prison system responds to the purposes of the sentence.
If it does not, the sentencing court could arguably have the authority to demand compliance with 935 the sentence or even order the prisoner released for non compliance.
Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods, 'right, just and fair '.
A long discussion covering American rulings, U.N. specifications of the Standard Minimum Rules for Prisons and the implications of articles 21, 19 and 14 read in the light of Maneka Gandhi 's case led this Court in Sunil Batra (supra) to accent on the habilitative value contained in Rule 58.
of the International Standard Minimum Rules: The purpose and justification of sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime.
This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law abiding and self supporting life.
The action oriented conclusion in that judgment, which bind the State, need re emphasis since die hard, practices persist.
We repeat some of them here : Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations.
This has roots in the visitorial and supervisory judicial role.
The lawyers so designated shall be bound to make periodical visits and records and report to the concerned court results which have relevance to legal grievances.
Within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made.
Access to such boxes shall be afforded to all prisoners.
District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action.
In appropriate cases reports shall be made 936 to the High Court for the latter to initiate, it found necessary, habeas action.
XX XX XX No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action.
XX XX XX The State shall take early steps to prepare in Hindi a Prisoner 's Handbook and circulate copies to bring legal awareness home to the inmates.
Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellow ship which will ease tensions.
A prisoners ' wall paper, which will freely ventilate grievances will also reduce stress.
All these are implementary of s.61 of the Prisons Act.
XX XX XX The prisoners ' rights shall be protected by the court by its writ jurisdiction plus contempt power.
To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the Court such as for e.g. Free Legal Aid (Supreme Court) Society.
The District Bar shall, we recommend, keep a cell for prisoner relief.
How far have these directives been implemented, especially to the extent they affect the present petitioner? We will examine it presently, but before that, some materials about this jail and its way of life is needed to appreciate where the truth lies, as between assertions and denials.
In the 2nd Sunil Batra case the Superintendent of the Tihar Jail testified: A number of prisoners in the Tihar Jail are habitual offenders, professional criminals who have been inmates of the Jail from time to time.
It has been noticed that these types of prisoners have been able to develop a certain rapport with some 937 of the lower staff in the jail namely Head Warders, Warders etc.
and obtain certain facilities illegally including smuggling of number of items e.g. drugs etc.
for their use.
It may also submitted that to check smuggling of narcotic drugs against prisoners who indulge in such activities 30 cases of narcotic offences were got registered against the prisoners with the Janakpuri Police Station during this year.
It may also be mentioned that due to paucity of accommodation, the said jail is occupied by double the number of prisoners than it is otherwise authorised.
In that very case, the Court had occasion to observe, on the materials present there: "Since many officers busy themselves with production of prisoners in court, the case of the Superintendent is that the other prisoners "try to do mischief, make thefts of other prisoners who go to work, smuggle things and even resort to assaults.
" The crowning piece is that the jail officials themselves are allegedly in league with the criminals in the cells.
That is, there is a large network of criminals, officials and non officials in the house of corrections Drug racket, alcoholism, smuggling, violence, theft, unconstitutional punishment by way of solitary cellular life and transfer to other jails are not uncommon.
" In that case, Dr. Chitale, who appeared for the prisoner, brought to our notice a literary work written by Shri Kuldip Nayar "In Jail" where the author has recorded : ". one could get as much money as one wanted from outside against a price.
There was a money order and mail service that perhaps was more dependable than what the postal department could offer.
For instance, when a prisoner in my ward wanted two hundred rupees, he sent a note through a warder to his people in old Delhi and in less than twenty four hours he had the money.
He paid sixty six rupees as collecting charges thirty three per cent was the prescribed "money order charges.". .Dharma Teja, the shipping magnate who served his sentence in Tihar, for instance, had thousands of rupees delivered to him, we were told.
And if one could pay the jail functionaries one could have all the comforts one sought.
Teja had all the comforts he had an air cooler in his cell, a radio cum record player set and even the facility of using the 938 phone.
Haridas Mundhra, a business man who was convicted of fraud, was another rich man who spent some time in Tihar.
Not only did he have all the facilities, but he could also go out of the jail whenever he liked, at times he would be out for several days and travel even up to Calcutta.
All this, of course, cost a lot of money.
An even richer prisoner was Ram Kishan Dalmia; he spent most of his jail term in hospital.
He was known for his generosity to jail authorities, and one doctor received a car as a gift.
But more than businessmen it was the smugglers jailed in Tihar who were lavish spenders.
Their food came from Moti Mahal and their whisky from Connaught Place.
They had not only wine but also women. "Babu ji, not tarts but real society girls," one warder said.
The women would be brought in when "the sahiblog" went home for lunch, and their empty offices became "recreation rooms".
Corruption in jail was so well organised and so systematic that everything went like clockwork once the price had been paid.
Jail employees at almost all levels were involved, and everyone 's share was fixed.
There was never a dispute; there has to be the proverbial honour among thieves.
" This backdrop to the Tihar lifestyle is disturbing enough.
(Have other States their Tihars?) The writ jurisdiction of this Court must be equal to the needs of human rights and human wrongs.
Relying upon legal literature in the American jurisdiction especially the crystalised statement in American jurisprudence, this Court has laid down : The writ is not and never has been a static, narrow formalistic remedy.
Its scope has grown to achieve its purpose the production of individuals against erosion of the right to be free from wrongful restraints on their liberty.
Jural perspectives, thus set, make the Court an activist instrument of Jail Justice.
We proceed on this basis to a consideration of the issues raised before us.
But to clothe these issues with flesh and blood and to make abstract poignancies into concrete problems, we may excerpt at random some of the allegations made by the petitioner, perhaps, by mixing fiction with fact.
Even after making a liberal allowance for adulteration and distortion, the miasmatic residue presses upon our judicial conscience to use the court processes and restore basic humanism inside this penal institution where sentences, punitively 939 sent by court, are subjects to unbearable tensions and torments on their physical and moral fibre, thanks to the prison milieu being what it is.
The petitioner states that he had sent to one of the Judges of this Court complaints about "atrociously unwholesome".
treatment in the jail, on September 21, 22 and 24, 1979.
He alleges that he had lodged a complaint against the Superintendent with the vigilance Department of the Delhi State.
His further version is better projected by quoting a few paragraphs from his own petition: That the Superintendent and Deputy Superintendent, under a severe threat of dire consequences and infliction of punitive torture, pressured the petitioner into signing an affidavit, denying having lodged any such complaints in the Supreme Court, the Delhi Administration and the Vigilance Department.
That, judging from the incidents of corruption, torture and drug distribution, there can be no two opinions about the Superintendent and Deputy Superintendent, brought from the adjoining province of Haryana, performing only in a manner of predators.
Torture and drug distribution are merely the means to corruption to achieve their ultimate end.
That there is a foreign convict confined in the Tihar Jail, along with a woman, who he claims to be his wife.
They are both wanted by the Interpol.
This man 's criminal biography has been published in two books, written by foreign authors, wherein the criminal exploits of this criminal are admitted facts.
He performs in the Tihar Jail as though he is the virtual administrator thereof.
He retains a portable tape recorder, strapped of his calf, wherein he has filled incriminating evidence against the Superintendent and the Deputy Superintendent.
By virtue of this black mailing hold upon them he enjoys the following privileges: (a) Free movements all over the jail compound from his own place of confinement in Ward 2.
(b) At least a dozen visits are made by him daily to the B class Ward 14.
Here he holds periodic conferences to plan his furtive strategy in company with three intimate associates all co accused in the six lacs Bank Van Robbery Case.
(c) The petitioner has himself seen the tape recorder kept hidden by him and his B class criminal associates.
940 (d) This foreigner is especially encouraged and protected by the Superintendent and Deputy Superintendent.
He can be seen visiting these officers and holding private conferences in the private retiring rooms at the back of their offices almost daily.
(e) So much so, that the Deputy Superintendent even allows this foreign convict to consummate sexual intercourse in his private back room from time to time the Deputy Superintendent performing as though he were this foreign convict 's pimp.
(f) Naturally, for conceding such and many more extra facilities, both the Superintendent and Deputy Superintendent charge heavy amounts from his foreign convict, who has now struck rich after the publication of his two books. 'B ' Class status for prisoners is, going by averments in the petition, a pampering process much abused by officials and, in a 'class ' culture, obnoxious to the Constitution.
Equality before the law cannot co exist with affluent black guards being looked after with luxury and solicitude and lawly indigents being treated as pariahs inside the prison.
There is reference in the petition to the three dangerous criminals involved in a big Bank Van Robbery Case being lodged in Ward 14 as 'B ' Class VIPs, who have, on top of other advantages, certain facilities like being.
"Specially allowed the privilege of having two young and handsome habitual drug addicts locked in his cell at night, to serve him as passive agents for the appeasement of his homosexual lust, (e) has been provided with a TV set in his cell exclusively for his and his associates ' entertainment, (f) smuggled in alcohol is being regularly consumed by the so locked together several prisoners in his cell, being rich, it is these so locked together associates who finance the drug and alcohol racket.
Another shocking allegation of corruption is that even from sentences undergoing rigorous imprisonment money is collected by high officials "for allotting hard labour (of soft types ?) in the course of serving rigorous imprisonment and placing the convicts in the general barracks or private cells.
" The petitioner further complains of having been physically assaulted and the averments relating to it run thus: 941 That the agents appointed by the Superintendent and Dy.
Superintendent to sell narcotics in the Tihar Jail, (written complaint to this effect lodged with the Superintendent, who passed the matter on far enquiry to the Dy.
Superintendent, who in turn took no disciplinary action) physically assaulted the petitioner on December 25, 1979 and January 6 and February 7, 1980.
However, no action has so far been taken and the culprits, being the agents of the Superintendent and Dy.
Superintendent were skilfully shielded.
In fact, the matter was deliberately suppressed because of the involved personal financial interests of the officers.
Apart from these statements there are serious charges of misappropriation, corruption, bribery and the like and the artful stratagem adopted in that behalf.
Shri Markandeya contended that there was truth in the allegation that mandrex, charas and opium are freely available, thereby trying to establish that the sub culture in the Central Jail, far from being reformatory is de formatory of the morals of the prisoners.
Indeed, many more things are mentioned in support of the petition, including newspaper reports, of the vices of the jail.
But we are/not concerned in these proceedings with a general enquiry into the jail affairs and, therefore, confine ourselves to what has bearing on the ill treatment of the petitioner.
It is basic fairness that we should not come to any conclusion without remembering the fact that detailed counter affidavits have been filed on behalf of the Superintendent and the Dy.
Superintendent with supportive materials calculated to exonerate them.
Even so it is fairly clear that many vices, including drug rackets, occasional violence, smuggling and trafficking in many other impermissible things, have a hospitable home in this penitentiary.
The Administration has conscientious responsibility for the decency and dignity, for correctional obligations and social hygiene inside prison houses and the time is long overdue for a thorough overhaul of the prison management in Tihar.
In an earlier judgment, late in 1979 (W.P. 1009 of 1979), the Supreme Court had, in the strongest terms, stressed the imperative and urgent need for carrying out certain reforms and added the imprimatur of the court 's authority for certain directives contained in Sunil Batra 's case.
Shri Markandeya complained that the injunctions of this Court have not been carried out while a contrary version is given by the Superintendent.
While we express our consternation at the deterioration of the conditions in Tihar Jail despite its being in the capital city of the country, we are disturbed that no major measure of reform has yet taken place in the prison order or, 942 for that matter, in the prison manual.
Such indifference cannot deter the writ of this court running into the prison and compelling compliance, however tough the resistance, however high the officials.
Natural justice and the limitations of court time persuade us to avoid a detailed investigation into the charges and the defences, by us directly.
We, therefore, adopt the alternative and more feasible method of directing a judicial enquiry by the District & Sessions Judge of Delhi who is a member of the Board of Visitors and whose responsibilities in this behalf have been outlined by us in both the Sunil Batra cases.
The petition contains specific grievances of physical assault and psychic torture, of tense atmosphere and delinquent pressure for which some 'B ' class prisoners and superior officers are responsible.
This matter has to be investigated.
Furthermore, in the Sunil Batra case (Supra), precisely to obviate the pernicious potential of prison torture, remedial mechanics had been worked out, formulated and translated into mandates.
Whether these have been complied with, and if not, why not, require to be enquired into.
When this Court issues a writ recusant parties will have to pay the penalty for noncompliance.
This means, the violations and violators will have to be identified after due investigation.
Having regard to all these instructions we make the following directions: (1) The District and Sessions Judge, Delhi, will, within three months from today, hold an open enquiry within the jail premises, into the allegations contained in the petition of the prisoner Kaushik and in the report submitted to this Court by Advocate, Shri Subodh Markandeya.
(2) He will further enquire, with specific reference to the charges of personal assault and compulsion for collaboration in canteen swindle and otherwise made by the prisoner against the Superintendent and the Dy.
Superintendent.
(3) He will go into the question of the directives issued in the concluding portion of Sunil Batra 's case (supra) with a view to ascertain whether these directions have been substantially complied with and to the extent there is shortfall or default whether there is any reasonable explanation therefor.
(4) Being a Visitor of the jail, it is part of his visitorial functions for the Sessions Judge to acquaint himself with the condition of tension, vice and violence and prisoners ' grievances.
He will take this opportunity to enquire into those aspects also with a view to suggest remedial action.
943 The result of this investigation will be crystalised in the shape of findings, followed by specific instructions with a view to see that the petitioner and others like him are not burdened by additional acerbities and harsher pressures than a legal sentence of rigorous imprisonment geared to reformation and intended for deterrence necessarily implied.
The Sessions Judge will also give a specific time to the jail authorities for carrying out his directives, and after the period for compliance is over, will make a fresh visit to verify whether those mandates have been fulfilled.
In the event of non fulfilment, a report will be made to this Court before September 30, 1980 whereupon appropriate action to enforce compliance will be taken by this Court in its jurisdiction.
We may make it perfectly clear that the Sessions Judge will allow any person or official who wants to make any representations to him in the course of his enquiry to meet him publicly or in camera, but outsiders and strangers will not be allowed except Shri Subodh Markandeya or Government 's Counsel.
Of course, it will be open to the Judge if he considers that such a step will advance the interests of justice to allow any other public organisation or legal aid society.
The sessions judge, whom we have charged with the responsibility for enquiry, will make constructive suggestions to protect prisoners ' rights and to promote prisoners ' habilitation and thus disprove Oscar Wilde: This two I know and wise it were If each could know the same That every prison that men build is built with bricks of shame, And bound with bars lest Christ should see How men their brothers main.
* * * * * The wilest deeds like poison weeds Blowm well in prison air: It is only what is good in Man ' That wastes and withers there.
(The Ballad of Reading Gaol) In this context, the focus of the Sessions Judge should not be solely upon the warden and warders of the jail, but also on the medical officers, whose connivance may, perhaps, explain how drugs like mandraix are officially indented.
944 Our immediate concern is to protect the petitioner and others of his ill from physical assaults by fellow prisoner or warders, from moral stress by being forced to assist in falsification and manipulation for canteen sales misappropriation, from discrimination in being subjected to hard labour of a harsh type if he does not oblige the 'B ' class 'bosses ' or senior officer 's, from pressure against transmitting grievances to the Sessions Judge through the Grievance Box or directly to this Court by post.
But remedial perspectives and procedures, to be successful, must be holistic, collective and not individualistic.
So, the human canvas has to be spread wider, the diagnosis has to be deeper and the recipe must senitize the environ.
The crisis in our prisons, the collapse of values in these campuses, the inner tension 'red in tooth and claw ', the corruption that makes for sensual indulgences, the barbarities that harden the convicts and never heal them all these processes can be reviewed and humanization resorted if only if, our philosophy towards crime and punishment change.
If vengeance is the spirit of punishment, violence will be the prison way of life.
That is why Karl Menninger in his "The Crime of Punishment" exposes this folly: . .Punishment is in part an attitude, a philosophy.
It is the deliberate infliction of pain in addition to or in lieu of penalty . .What is gained for anybody when a man who has forged a check for sixty dollars is sentenced to the penitentiary for thirty years. .The judge 's rationalization was that the man had offended in this way twice before (!) and had served shorter sentence without reforming: . .This is not penalization.
This is not correction.
This is not public protection.
This is not reformation.
It is sadistic persecution of the helpless at public expense, justified by the punishment principle.
From this new angle, the hospital setting approach to prisons Gandhiji advocated, the therapeutic touch penologists argue for and the raising of the level of consciousness, institutional and individual, of officials and prisoners all these woven into a composite strategy may well be the highway to higher awareness and socialisation of feeling inside correctional homes.
This technology takes us to method like transcendental meditation, self expression through work, facilities for studies and artistic development.
The warden 's drill the warder 's billy or the VIP 's 'good chit ' cannot work magic.
Shri Markandeya 's further report substantiates the thesis we have set out that prison violence and escalating criminality directly 945 flow from the anti rehabilitative strategies and counter productive life style prevalent in the Tihar.
The VIP criminals in league with other prison toughs are alleged to have organised the beating up of one prisoner.
The part of the prison officials may or may not be direct, but is surely vicarious.
Not until a transformation in the awareness of the top brass, not until new techniques of instilling dignity and mutual respect among the prisoners, not until a hospital setting and curative techniques pervade the staff and the inmates, can there be any human right conscious reformation in the Tihar prison.
All that we need say is that in the enquiry that we have directed the Sessions Judge to hold this perspective will inform his interrogations and investigations.
We have drawn the broad lines indicative of the direction of correction and leave it at that.
The fundamental fact of prison reforms comes from our constitutional recognition that every prisoner is a person and personhood holds the human potential which, if unfolded, makes a robber a Valmiki and a sinner a saint.
S.R. Petition allowed.
| IN-Abs | Kaushik, a lifer lodged in Tihar Jail moved a quasi habeas corpus petition bitterly complaining with facts and figures, of the terror and horror, physical, and psychic, let loose on him and other jail mates by a crypto criminal combination of senior officials and superior prisoners, thereby making the prison life within that walled world such a trauma and torment the law never meant under the sentence suffered at the hands of the Court.
Briefly, the petitioner alleged that his life in jail is subjected to intimidation by overbearing 'toughs ' inside, that he is forced to be party to misappropriation of jail funds by and bribery of officers, that homosexual and sexual indolence with the connivance of officials are going on, that smuggling in and out is frequent and drug racket common, that alcoholic and violent misconduct by gangs like those involved in Bank Robbery and other notorious cases are a menace to quieter prisoners and the whole goal of reformation of sentences is defeated by this supercrime syndrome.
On this the Court appointed Sri Subodh Markedneya as amicus curiae to inquire into the allegations and submit a report.
The respondent Delhi Administration transversed the grounds in the petition.
Allowing the petitions, the Court ^ HELD: 1.
Prison torture is not beyond the reach of the Supreme Court in its constitutional jurisdiction.
[931 F] Were there a modicum of truth in the disclosures made of vice and violence, overt and covert, in the goings on in Tihar such an institutional outrage would make our constitutional culture blush and our judicial punishment 'guilty ' procedure.
And on the materials placed before the Court there is ground enough to exercise our exceptional but undoubted jurisdiction to ensure some minimum of social hygiene and banishment of licentious excesses lest the sentence of court be frustrated in its dual ends of deterrence and rehabilitation by prison pathology.
[932 B C] 2.
When police and prison torture is escalating in our human rights era, courts owe a duty to society not to ignore such a dangerous reality.
Under our Constitution, deprivation of personal liberty as penal policy is purposive and the Penal Code itself is valid because the imprisonment of the criminal is reasonable, not arbitrary, and is sanctioned as a measure of social defence and individual rehabilitation.
A court sentence does not deprive the prisoner of his fundamental rights.
To reform and deter the criminal and to work out that process geared to social defence, the convict is cast into prison not to make him more hardened, more brutal, more cunning and dangerous to society.
This 930 raison d 'etre of penological institutions in our Gandhian country, with humanism as basic to the constitutional scheme, cannot be written off without peril.
A Prison term in Tihar Jail is not a post graduate training in tough crime.
No sentencing judge, high and low should hang his helpless head in frustration and humiliation because institutional alternations and personnel perversions have sullied and stultified the justice of his sentence.
[932 F H, 933 A, B, C] Sunil Batra vs State (Delhi Administration), ; ; referred to.
The human rights of common prisoners are at a discount and, in our Socialist Republic moneyed 'B ' class convicts operate to oppress the humbler inmates.
There cannot be inequality in prison too on the score of social and financial status.
Bank robbers in 'B ' class because they are rich by robbery and nameless little men in 'C ' class because they are only common Indians! Article 14 is suffocated if this classification is permitted, and yet that, according to rule itself, is prevalent.
Therefore, the Supreme Court must act, will act, to restore the rule of the law and respect of the residual fundamental rights of any harassed petitioner.
[933 D F].
The writ jurisdiction of the Supreme Court must be equal to the needs of human rights and human wrongs.
In Sunil Batra (1) vs Delhi Administration, [1979] 1 S.C.R. 393, this Court held that fundamental rights did not forsake prisoners and that the penological purpose of sentence was importantly, reformatory even though deterrent too.
In the second Sunil Batra 's case after a long discussion covering.
American Rulings U.N. specifications of the Standard Minimum Rules for prisons and the implications of Articles 21, 19 and 14 read in the light of Maneka Gandhi 's case, [1978] 1 S.C.C. 248, this Court accented on the habilitative value contained in Rule 58 of the International Standard Minimum Rules.
Jural justice thus set make the Court an activist instrument of jail Justice.
[934 A B, 935 A B, 938 G] 5.
In the instant case, even after making a liberal allowance for adulteration and distortion, the miasmatic process and restore basic humanism inside this penal institution where sentences, punitively sent by court, are subjected to unbearable tensions and torments on their physical and moral fibre, thanks to the prison milieu being what it is.
[938 G H, 939 A] 'B ' class status for prisoners is going by averments in the petition, a pampering process much abused by officials and, in a 'class ' culture, obnoxious to the Constitution.
Equality before the law cannot co exist with affluent blackguards being looked after with luxury and solicitude and lawly indigents being treated as pariahs inside the prison.
There is reference in the petition to the three dangerous criminals involved in a big Bank Van Robbery Case being lodged in Ward 14 as 'B ' Class VIPs, who have, on top of other advantages, certain facilities.
It is fairly clear that many vices, including drug rackets, occasional violence, smuggling and trafficking in many other impermissible things, have hospitable home in this penitentiary.
The Administration has conscientious responsibility for the decency and dignity, for correctional obligations and social hygiene inside prison houses and the time is long overdue for a thorough overhaul of the prison management in Tihar.
[940 C E, 941 E F].
The crisis in our prisons, the collapse of values in these campuses, the inner tension 'red in tooth and class ' the corruption that makes for sensual indul 931 gences, the barbarities that harden the convicts and never heal them all these processes can be reviewed and humanization resorted if, only if, our philosophy towards crime and punishment change.
If vengeance is the spirit of punishment violence will be the prison way of life.
[944 C D] [The Court, keeping in view the principle of natural justice and the limitation of Court time directed a judicial enquiry by the District and Sessions Judge of Delhi who is a member of the Board of Visitors stressing the points to be covered in particular.]
|
Civil Appeal No. 1058 of 1970.
From the Judgment and Decree dated 25 4 1969 of the Gujarat High Court in Appeal No. 22/61.
section N. Kackar, K. J. John and Sri Narain for the Appellant.
section T. Desai, H. section Parihar and I. N. Shroff for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
This appeal by certificate under Article 133(1) (a) of the Constitution is by the original plaintiff State Bank of Saurashtra ( 'the Bank ' for short) whose suit for recovery of Rs. 76,368 04 P. from the legal representative of the deceased principal debtor Harilal Parmanaddas Adatia and his surety original defendant 2 Chitranjan Rangnath Raja.
( 'Surety ' for short) was decreed by the trial court both against the legal representative of the principal debtor and the surety but on appeal by the surety, was dismissed by the High Court only against the surety.
Harilal Parmananddas Adatia, hereinafter referred to as 'principal debtor ', approached the Manager of the Bagasra Branch of State Bank of Saurashtra seeking facility for cash credit upto Rs. 75,000/ .
He submitted proposal form Ext.
66 on September 10,1957, offering to give security for the cash credit by pledge of groundnut oil tins as also a personal guarantee of defendant 2 Chitranjan Rangnath Raja.
919 After obtaining the approval of the General Manager of the Bank cash credit facility to the extent of Rs. 75,000/ was sanctioned against the pledge of approved goods under the lock and key of the Bank and on personal guarantee of the surety.
The principal debtor executed a demand promissory note, Ext.
81 in favour of the Bank on September 16, 1957, and on the same day the principal debtor also executed a demand promissory note, Ext. 30, in favour of the surety which the surety endorsed in favour of the Bank. 'Along with the two demand promissory notes, simultaneously the surety executed a letter of guarantee Ext.
31 in favour of the Bankand ' the principal debtor executed a bond Ext.
83 in favour of the Bank.
The principal debtor also passed letter of continuity of the bond and the promissory note Ext.
Thereafter the principal debtor enjoyed the cash credit facility by borrowing various amounts.
By the end of February 1959 the principal debtor owed Rs. 76,368.04 P. in this account to the Bank.
Principal debtor died in November 1957.
The Bank wrote to the surety letter Ext.32 dated December 24,1957, calling upon him to pay the outstanding balance of Rs. 70,879/ in cash credit account of principal debtor as in the circumstances mentioned in the letter the balance was required to be recovered from the surety.
Some correspondence ensued thereafter between the Bank and the surety and ultimately the Bank filed the suit for recovery of Rs. 76,368.04 P. against defendant 1, the legal representative of principal debtor and defendant 2, the surety.
Defendant 1 contested the suit, inter alia, contending that the court had no jurisdiction to hear the suit and he had no knowledge about the suit transaction.
The allegation of fraud made against him in the plaint was denied.
He also denied his liability for the claim of the Bank as heir and legal representative of deceased principal debtor.
Defendant 2, the surety, contested the suit as per written statement Ext.
7, inter alia, contending that the Bank had agreed to grant cash credit facility to deceased principal debtor on the security of goods by way of pledge and that though the goods were to be kept in the godown in the compound of Vijay Oil Mills Pvt. Ltd., but the godown was to be kept under the lock and key of the Bank.
It was also contended that the principal debtor would provide such quantity of goods as would provide full cover to the outstanding balance in the cash credit account and the Bank was to be responsible for the safe custody and keeping of the pledged goods.
It was also contended that the principal debtor had all throughout pledged sufficient quantity of goods to provide full cover for the Bank 's claim but the Bank either wrongfully lost the goods or was negligent in retaining the goods within 920 its custody or the Bank wrongfully parted with the goods without the consent of the surety and, therefore, the surety was discharged.
The trial Court found that there was negligence on the part of the Bank with regard to the safe custody of the pledged oil tins but as the contract of guarantee entered into by the surety with the Bank was independent of the pledge of goods given by the principal debtor, the surety is not discharged from his liability under the guarantee.
So observing the trial court decreed the suit.
On appeal by the surety, the High Court held that the two promissory notes, one executed by the principal debtor in favour of the Bank, Ext. 81, and another by the principal debtor in favour of the surety and endorsed by the surety to the Bank, Ext.30, and the letter of guarantee Ext. 31 executed by surety in favour of the Bank as also the bond executed by the principal debtor in favour of the Bank Ext.
83 and the letter of continuity Ext.
82 executed by the principal debtor in favour of the Bank, all on September 16, 1957, constituted one composite transaction and they evidence that the principal debtor had offered two securities, one the pledge of oil tins and another personal guarantee of the surety.
The High Court further held that the Bank was utterly negligent and had not exercised such care as a prudent man would in the circumstances of the case which resulted in the loss of security, namely, pledged oil tins and, therefore, in view of combined operation of sections 139 and 141 of the Indian Contract Act, ( 'Act ' for short), the surety is discharged.
Accordingly, the appeal of the surety was allowed and the suit against him was dismissed.
Hence this appeal by the plaintiff Bank.
Uncontroverted facts concurrently found and not sought to be reviewed in this appeal are that the principal debtor as per his application Ext.
65 sought cash credit facility to the extent of Rs. 75,000/ pursuant to which the Bagasra Branch of the Bank submitted a proposal Ext.
66 seeking permission of the General manager of the Bank to extend the facility.
The General Manager of the Bank sanctioned advance, inter alia, on the following terms: "A cash credit limit of Rs.75,000/ (Rupees Seventy five thousand only) is hereby sanctioned against pledge of approved goods under Bank 's lock and key and on the personal guarantee of Shri C. R. Raja, Junagadh.
Noted that the Bank 's godown keeper already posted at Amrali would look after the goods pledged by the above party also.
921 All other terms as proposed." (underlining ours).
Accordingly, on the strength of two pronotes Exts. 30 and 81 and on the strength of letter of guarantee Ext.31 and the bond Ext.83 cash credit facility was extended to the principal debtor.
The pledged goods were kept in the godown in the compound of Vijay oil Mills under the lock and key of the Bank and the Bank had appointed a Godown keeper to look after the goods pledged by the principal debtor.
Two promissory notes Exts.
30 and 81 and letter of guarantee Ext.
31 and the bond executed by the principal debtor Ext.
83 all of September 16, 1957, constituted one transaction.
The High Court held that the surety had agreed to become surety, on the principal debtor pledging oil tins as and by way of security for the advance and, therefore, two securities were offered, namely, pledge of goods and the personal guarantee of the surety.
The High Court also found that 5,000 tins of oil had come to be transferred by Vijay oil Mills in the name of the deceased principal debtor and they were treated as pledged with the Bank as security for cash credit facility.
It is concurrently found that the Bank was utterly negligent with regard to the safe keeping and handling of pledged oil tins and the security of pledged oil tins was lost on account of the negligence of the Bank.
Disagreeing with the trial court the High Court held that the pledge and the personal guarantee were not two independent transactions but they formed part and parcel of one composite transaction.
The High Court, therefore, held that the creditor having lost one security, namely, the pledged goods, the surety was discharged to the extent of the value of security and that as in this case the entire security was lost, the surety was wholly discharged.
Only contention canvassed in this appeal is that in view of clauses 5,7 and 13 of letter of guarantee Ext.31 even if it is found as a fact that negligence of the creditor Bank was responsible for the loss of security of pledged oil tins, yet the surety would not be discharged.
Before we refer to clauses 5, 7 and 13, it is necessary to notice section 141 of the Indian Contract Act under which the surety claims the relief of discharge.
Section 141 reads as under: "141.A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and if the creditor loses, or, without the consent of the surety, parts with such security, the surety is discharged to the extent of the value of the security.
" 922 In order to attract section 141 it must be shown that the creditor had taken more than one security from the principal debtor at the time when the contract of guarantee was entered into and irrespective of the fact whether the surety knew of such other security offered by the principal debtor, if the creditor loses or without the consent of the surety parts with the other security the surety would be discharged to the extent of the value of the security.
In the instant case as found by the High Court and not controverted, the principal debtor had offered two securities, (i) the pledge of goods, (ii) personal guarantee of the surety.
Verily, the General Manager of the Bank accepted the proposal for cash credit facility on the specific condition that the principal debtor shall offer two securities, one the pledge of goods to be kept under the lock and key of the Bank to be supervised by the Bank 's employee, and secondly, the personal guarantee of the surety.
The surety himself agreed to give personal guarantee on the specific understanding and with the full knowledge of the Bank that the principal debtor was offering another security, namely, pledge of goods.
The surety contracted on the good faith of the principal contract when entering into contract of guarantee in which case he is deemed so to contract that both the securities would be available to the creditor (see Sanderson vs Aston) If the two promissory notes Exts.
81 and 30 coupled with the letter of guarantee Ext.
31 executed by the surety and the bond Ext.
83 executed by the principal debtor at one sitting on September 16, 1957, evidence one composite transaction, it is an inescapable conclusion that the principal debtor offered two securities, one the pledge of goods and the other the personal guarantee of the surety.
The surety in good faith contracted to offer personal guarantee on the clear understanding that the principal debtor has offered security by way of pledge of goods and the goods were to be in the custody of the creditor Bank.
On this conclusion section 141 of the Act will be indubitably attracted.
Section 141 comprehends a situation where the debtor has offered more than one security one of which is the personal guarantee of the surety.
Even if the surety of personal guarantee is not aware of any other security offered by the principal debtor yet once the right of the surety against the principal debtor is impaired by any action or inaction, which implies negligence appearing from lack of supervision undertaken in the contract, the surety would be discharged under the combined operation of sections 139 and 141 of the Act.
In any event, if the creditor loses or without the consent of the surety parts with the security, the surety is discharged to the extent of the security lost as provided by section 141.
923 In Halsbury 's Laws of England, 4th Edn., Vol. 20, para 280, p. 52, the statement of law bearing on this point reads as under: "280.Effect of loss of securities.
On paying the guaranteed debt the surety is entitled to have all securities held by the creditor for the debt handed over to him by the creditor in exactly the same state and condition in which they were originally provided whether they were in existence at the date of the contract of suretyship or came into existence subsequently.
Consequently, any act of the creditor interfering with or impairing that right will, to the extent, at all events, of any loss inflicted, relieve the surety from liability, and, if it has the effect of altering or purporting to alter the contract of suretyship, discharge him altogether.
Thus, where there is a mortgage security given in respect of a debt which is subsequently guaranteed, the creditor must hold the security for the benefit of surety, so that, on paying the debt, the surety may obtain a transfer of mortgage in its original unimpaired condition.
If the creditor does not fulfil his duty in this respect the surety is discharged.
" This statement of law is reflected in ss.140 and 141 of the Act.
In State of Madhya Pradesh vs Kaluram the facts were that one Kaluram had executed a surety bond undertaking to discharge the liability arising out of any act or omission or negligence or default of a forest contractor whose bid was accepted at an auction held for sale of felled trees and who was required to pay the bid amount in four instalments.
The forest contract rules provided for preventing the contractor from removing the forest goods in case he made default in payment of the instalments due.
The authorities responsible for supervising the contract allowed the contractor to remove the felled trees without making the subsequent payments.
Subsequently the State of Madhya Pradesh initiated proceedings to recover the balance of the amount through surety Kaluram.
The surety Kaluram contended before this Court that because the State had lost or parted with the security, namely, forest produce, he stood discharged.
Upholding this contention this Court quoted Wulff and Billing vs Jay, wherein Hannen, J., stated the law as under: ".
I take it to be established that the defendant became surety upon the faith of there being some real and substantial 924 security pledged, as well as his own credit, to the plaintiff, and he was entitled, therefore, to the benefit of that real and substantial security in the event of his being called on to fulfil his duty as a surety, and to pay the debt for which he had so become surety.
He will, however, be discharged from his liability as surety if the creditors have put it out of their power to hand over to the surety the means of recouping himself by the security given by the principal.
That doctrine is very clearly expressed in the note in kees vs Barrington 2 White & Tudor 's L.C. 4th Edn.
at p. 1002 As a surety on payment of the debt, is entitled to all the securities of the creditor, whether he is aware of their existence or not, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession or power, loses them or permits them to get into the possession of the debtor, or does not make them effectual by giving proper notice, the surety to the extent of such security will be discharged.
A surety, moreover, will be released if the creditor, by reason of what he has done, cannot, on payment by the surety, give him the securities in exactly the same condition as they formerly stood in his hands.
" This Court concluded that subject to certain variations section 141 of the Indian Contract Act incorporates the English law relating to discharge from liability of a surety where the creditor parts with or losses to security held by it.
Mr. Kackar, however, contended that in view of clauses 5, 7 and 13 of the letter of guarantee, Ext. 31, even if it is held proved that security of pledged goods was lost on account of the negligence of the creditor Bank, yet the surety would not be discharged from the obligation undertaken under the letter of guarantee.
Clauses 5, 7 and 13 may be extracted: "5.
You shall in any case, be at liberty and without my/our further assent or knowledge, at any time, to grant to the customer or any person liable with or for his, whether as guarantor or otherwise, any time or indulgence and to determine, enlarge or vary its credit and to vary exchange or take other securities or release any other securities held or to be held by you for or on account of the moneys intended to be hereby secured or any part thereof or to renew any bills, notes or other negotiable security and to compound or make any other arrangements with the customer or any 925 person so liable with or for the customer as you may think fit without discharging or in any manner affecting my/our liability under this guarantee." "7.
To the extent that you may obtain satisfaction of the whole of your claim against the customer, I/we agree that you may enforce and recover upon this guarantee the full amount hereby guaranteed and interest thereon notwithstanding any such proof or composition as aforesaid, and notwithstanding any other guarantee, security or remedy, guarantees, securities or remedies which you may hold or be entitled to in respect of the sum intended to be hereby secured or any part thereof, and notwithstanding any charges or interest which may be debited in your account current with the customer, or in any other account upon which the customer may be liable." "13.
Should the customer be a limited company, corporate or an incorporate body, committee, firm, partnership, trustees or debtors on a joint account, the provisions hereinbefore contained shall be construed and take effect where necessary as if the words importing the singular number included also the plural number.
This my/our guarantee shall then remain effective notwithstanding any death, retirement, change, accession or addition as fully as if the person or persons constituting or trading or acting as, such body, committee, firm, partnership, trustees, or debtors on joint account, at the date of the customer 's default or at and time previously, was or were the same as the date hereof.
And further you may recover against me/us to the extent here in before mentioned notwithstanding that any security given or to be given to you may be void, defective, or informal, or notwithstanding that the customer being a limited company, corporate or unincorporated body or committee, may exceed its borrowing powers or that the borrowing from you may have been ultra vires.
" Clause 5 confers right upon the creditor Bank to grant any time or indulgence in payment of the debt or to determine, enlarge or vary its credit and to vary, exchange or take other securities or release any other securities held by the Bank but such an act on the part of the Bank would not have the effect of discharging the surety or in any manner affecting his liability under the letter of guarantee.
We fail to see how 926 clause 5 can help the creditor Bank in any manner.
It is not a case of granting time or indulgence to the principal debtor or variation of the credit or taking one set of security in substitution of some other security or release of any security.
Release of security implies a volitional act on the part of the Bank.
Loss on account of negligence cannot be equated with release.
Therefore, clause 5 would not assist the Bank in this case.
Clause 7 provides for non discharge of surety even if the creditor Bank enters into a composition with the principal debtor and that the surety would nonetheless be liable even if the Bank has guarantee, security or remedy, guarantees, securities or remedies from the principal debtor.
Upon a true construction of clause 7, the expression 'any other guarantee, security or remedy ' therein mentioned must be security other than the pledged goods.
In an almost identical situation with regard to an identical clauses in Amrit Lal Goverdhan Lalan vs State Bank of Travancore and Ors, this Court after referring to clause 5 in the letter of guarantee which is in pari materia with clause 7 of the letter of guarantee under discussion, held as under: "On behalf of the respondent Bank reference was made to cl. 5 of exhibit P 4 which has already been quoted.
It was contended that on account of this clause in exhibit P 4 the appellant has opted out of the benefit of section 141 of the Indian Contract Act.
We are unable to accept the argument put forward by the Attorney General on behalf of the respondent Bank.
In our opinion, the expression "any security" in cl. 5 of exhibit P 4 should be properly construed as "any security other than the pledge of goods mentioned in the primary agreement, exhibit P 1 between the Bank and the firm.
" We consider that there is nothing in cl. 5 of Ex.
P 4 to indicate that the appellant is not entitled to invoke the provisions of section 141 of the Indian Contract Act.
" Therefore, cl. 7 is of no assistance to the Bank.
A bare perusal of clause 13 would show that it provides for continuing the guarantee where the principal debtor is an association of persons and for continuance of the guarantee in the event of death, retirement, etc.
of one of such association of persons or the guarantee remaining intact and effective and legally enforceable irrespective of some defect arising from the internal management of such association of person.
We fail to see how it can render any assistance to the Bank.
927 First security, namely, the pledged goods are lost to the Bank and the concurrent finding again incontrovertible is that the pledged goods were lost on account of the negligence of the creditor Bank.
Whole of the security was lost and, therefore the surety would be discharged in entirety because it is crystal clear that the principal debtor had agreed and had in fact pledged 5,000 tins of oil which even if sold at the then current market price would have satisfied the Bank 's entire claim.
Accordingly, the surety would be discharged in entirety.
It is difficult to entertain a contention that section 141 would not be attracted and the surety would not be discharged even if it is found that a creditor has taken more than one security on the basis of which advance was made and the surety gave personal guarantee on the good faith of other security being offered by the principal debtor which itself may be a consideration for the surety offering his personal guarantee and the creditor by its own negligence lost one of the securities.
Acceptance of such a contention would tantamount to putting a premium on the negligence of the creditor to the detriment of the surety who is usually described as a preferred debtor.
Should a Court by its construction of such letter of guarantee enable the creditor to act negligently and yet be not in any manner accountable ? Was the guarantee a guarantee against proper performance of the contract evidencing advance of loan and methods of its repayment, or a guarantee covering Bank 's utter disregard of its responsibility or to use the words of the High Court, the Bank 's utter negligence in failing to exercise the care of a prudent man which one would expect in management of one 's own affairs ? The appeal accordingly fails and is dismissed with costs.
The respondent surety has made an application that in compliance with the decree made by the trial court he had paid the entire amount and he should not be exposed to second round of litigation for restitution of the amount and that this Court should give a direction to the Bank as part of this judgment that the amount be returned with interest at current rate to the respondent surety.
By section 144 of the Code of Civil Procedure, 1908 as it stood prior to amendment by the Code of Civil Procedure (Amendment) Act, 1976, the jurisdiction to grant restitution was conferred upon the 'Court of first instance '.
Since the amendment the expression the Court of first instance ' has been substituted by 'the Court which passed the decree or order '.
An explanation has been added to section 144 by the 928 Amendment Act of 1976, the relevant portion of which reads as under: "Explanation For the purposes of sub section (1) the expression "Court which passed the decree or order" shall be deemed to include (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance.
" In the instant case the appellant was the plaintiff and its suit was decreed by the trial court, i.e. the Court of Civil Judge, Senior Division, Gondal, on November 18, 1960.
The present appellant by its letter dated February 14, 1961, demanded from the surety a sum of Rs. 84,828.07P. inclusive of costs and interest on the principal amount decreed.
The surety respondent I in this Court paid the appellant Rs. 84,828.07P. on April 3, 1961.
In the appeal by the surety the High Court reversed the decree and dismissed the suit against the surety.
Accordingly, the surety is entitled to restitution.
The limited question is whether this Court can grant restitution.
Prior to Amendment Act, 1976, an application for restitution under section 144 in all cases had to be made to the Court of first instance.
Ever since the amendment the substituted expression 'the Court which passed the decree or order ' would as per clause(a) of the explanation, mean the Court of first instance because the expression 'the Court which passed the decree or order ' has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance.
The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e. the Court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction.
In such a situation clause (a) of the explanation would be attracted and an application for restitution will have to be made to the Court of first instance, i.e. the Court of Civil Judge, Senior Division, Gondal.
It is nowhere suggested that such a Court does not exist.
Therefore, it would not be proper for this Court to direct restitution.
However, there will be no justification for the appellant Bank to withhold the amount which was collected from the surety on a mere demand.
Therefore, an application for restitution made by the surety would not lie to this Court and it would stand disposed of accordingly.
S.R. Appeal dismissed.
| IN-Abs | The appellant bank allowed a cash credit facility limited to Rs. 75,000/ to the principal debtor Harilal Parmananddas Adatia on his pledging 5,000 tins of groundnut oil under the lock and key of the Bank and on personal guarantee of the surety, respondent No. 2.
The principal debtor executed a demand promissory note Ext.
81 in favour of the Bank on September 16, 1957, and on the same day the principal debtor also executed a demand promissory note, Ext, 30, in favour of the surety which the surety endorsed in favour of the Bank.
Along with the two demand promissory notes, simultaneously the surety executed a letter of guarantee Ext.
31 in favour of the Bank and the principal debtor executed a bond Ext.
83 in favour of the Bank.
The principal debtor also passed letter of continuity of the bond and the promissory note Ext.
Thereafter the principal debtor enjoyed the cash credit facility by borrowing various amounts.
By the end of February 1959 the principal debtor owed Rs. 76,368.04 P in this account to the Bank.
Principal debtor died in November 1959.
The Bank wrote to the surety letter Ext.
32 dated December 24, 1959, calling upon him to pay the outstanding balance of Rs. 70,879/ in cash credit account of principal debtor as in the circumstances mentioned in the letter the balance was required to be recovered from the surety.
Some correspondence ensued thereafter between the Bank and the surety and ultimately the Bank filed the suit for recovery of Rs. 76,368.04 P. against defendant 1, the legal representative of principal debtor and defendant 2, the surety.
The trial court round that there was negligence on the part of the Bank with regard to the safe custody of the pledged oil tins but as the contract of guarantee entered into by the surety with the Bank was independent of the pledge of goods given by the principal debtor, the surety is not discharged from his liability under the guarantee.
So observing the trial court decreed the suit.
The surety paid the entire amount demanded and appealed to the High Court.
The High Court held that the two promissory notes, one executed by the principal debtor in favour of the Bank Ext.
81, and another by the principal debtor in favour of the surety and endorsed by the surety to the Bank, Ext. 30, and the letter of guarantee Ext.
31 executed by the surety in favour of the Bank as also the bond executed by the principal debtor in favour of the Bank Ext.
83 916 and the letter of continuity Ext.
82 executed by the principal debtor in favour of the Bank, all on September 16, 1957, constituted one composite transaction and they evidenced that the principal debtor had offered two securities, one the pledge of oil tins and another personal guarantee of the surety.
The High Court further held that the Bank was utterly negligent and had not exercised such care as a prudent man would in the circumstances of the case which resulted in the loss of security, namely, pledged oil tins and, therefore, in view of combined operation of sections 139 and 141 of the Indian Contract Act, the surety is discharged.
Accordingly, the appeal of the surety was allowed and the suit against him was dismissed.
Hence this appeal by plaintiff Bank.
Dismissing the appeal by certificate, the Court, ^ HELD: 1.
In order to attract section 141 of the Contract Act, it must be shown that the creditor had taken more than one security from the principal debtor at the time when the contract of guarantee was entered into and irrespective of the fact whether the surety knew of such other security offered by the principal debtor, if the creditor loses or without the consent of the surety parts with the other security the surety would be discharged to the extent of the value of the security.
In the instant case as found by the High Court and not controverted, the principal debtor had offered two securities, (i) the pledge of goods, (ii) personal guarantee of the surety.
Verily, the General Manager of the Bank accepted the proposal for cash credit facility on the specific condition that the principal debtor shall offer two securities, one the pledge of goods to be kept under the lock and key of the Bank to be supervised by the Bank 's employee, and secondly, the personal guarantee of the surety.
The surety himself agreed to give personal guarantee of the specific understanding and with the full knowledge of the Bank that the principal debtor was offering another security, namely, pledge of goods.
The surety contracted on the good faith of the principal contract when entering into contract of guarantee in which case he is deemed so to contract that both the securities would be available to the creditor.
If the two promissory notes Exts.
81 and 30 coupled with the letter of guarantee Ext.
31 executed by the surety and the bond Ext.
83 executed by the principal debtor at one sitting on September 16, 1957, evidence one composite transaction, it is an inescapable conclusion that the principal debtor offered two securities, one the pledge of goods and the other the personal guarantee of the surety.
The surety in good faith contracted to offer personal guarantee on the clear understanding that the principal debtor has offered security by way of pledge of goods and the goods were to be in the custody of the creditor Bank.
On this conclusion section 141 of the Act will be indubitably attracted.
[922 A F] Sanderson vs Aston, [1873] L R. at 76, quoted with approval.
Section 141 comprehends a situation where the debtor has offered more than one security one of which is the personal guarantee of the surety.
Even if the surety of personal guarantee is not aware of any other security offered by the principal debtor yet once the right of the surety against the principal debtor is impaired by any action or inaction, which implies negligence appearing from lack of supervision undertaken in the contract, the surety would be discharged under the combined operation of sections 139 and 141 of the Act.
In any event, if the creditor loses or without the consent of the surety parts with the security, the surety is discharged to the extent of the security lost as provided by section 141.
[922 F H] State of Madhya Pradesh vs Kaluram, ; , followed.
917 Wulff and Billing vs Jay, , quoted with approval.
In the instant case, clauses 5, 7 and 13 of the letter of guarantee, Ext.
31 would be of no assistance to the Bank.
[926 B, G, H] (a) Clause 5 confers right upon the creditor Bank to grant any time or indulgence in payment of the debt or to determine, enlarge or vary its credit and to vary, exchange or take other securities or release any other securities held by the Bank but such an act on the part of the Bank would not have the effect of discharging the surety or in any manner affecting his liability under the letter of guarantee.
It is not a case of granting time or indulgence to the principal debtor or variation of the credit or taking one set of security in substitution of some other security or release of any security.
Release of security implies a volitional act on the part of the Bank.
Loss on account of negligence cannot be equated with release.
[925 G H. 926 A B] (b) Clause 7 provides for non discharge of surety even if the creditor Bank enters into a composition with the principal debtor and that the surety would nonetheless be liable even if the Bank has other guarantee, security or remedy guarantees, securities or remedies from the principal debtor.
Upon a true construction of clause 7, the expression 'any other guarantee, security or remedy ' therein mentioned must be security other than the pledged goods.
[926 B C] Amrit Lal Goverdhan Lal and ors.
vs State Bank of Travancore and ors.
; , @ 731, followed.
(c) Clause 13 provides for continuing the guarantee where the principal debtor is an association of persons and for continuance of the guarantee in the event of death, retirement etc.
of one of such association of persons or the guarantee remaining intact and effective and legally enforceable irrespective of some defect arising from the internal management of such association of persons.
First Security, namely, the pledged goods are lost to the Bank and the concurrent finding again incontrovertible is that the pledged goods were lost on account of the negligence of the creditor Bank.
Whole of the security was lost and, therefore, the surety would be discharge in entirety because it is crystal clear that the principal debtor had agreed and had in fact pledged 5,000 tins of oil which even if sold at the then current market price would have satisfied the Bank 's entire claim.
Accordingly, the surety would be discharged in entirety.
[926 G H, 927 A B] 4.
Accepting a contention that section 141 would not be attracted and the surety would not be discharged even if it is found that a creditor has taken more than one security on the basis of which advance was made and the surety gave personal guarantee on the good faith of other security being offered by the principal debtor which itself may be a consideration for the surety offering his personal guarantee and the creditor by its own negligence lost one of the securities, would tantamount to putting a premium on the negligence of the creditor to the detriment of the surety who is usually described as a 'preferred debtor '.
A Court should not by its construction of such letter of guarantee enable the creditor to act negligently and yet be not in any manner accountable.
[927 B E] 5.
By section 144 of Civil Procedure Code 1908, as amended by the Amendment Act, 1976, the jurisdiction to grant restitution is conferred upon "the Court which passed the decree or order".
By an explanation added to section 144 by the Amendment Act of 1976, the expression "Court which passed the decree or 918 order" shall be deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance.
[927 G H, 928 A] In the instant case (i) the appellant was the plaintiff and its suit was decreed by the trial Court, i.e. the Court of Civil Judge, Senior Division, Gondal, on November 18, 1960.
The present appellant by its letter dated February 14, 1961, demanded from the surety a sum of Rs. 84,828.07 P. inclusive of costs and interests on the principal amount decreed.
The surety respondent 1 in this Court paid the appellant Rs. 84,828.07 P.
On April 3, 1961.
In the appeal by the surety the High Court reversed the decree and dismissed the suit against the surety.
Accordingly, the surety is entitled to restitution; and (ii) the present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e. the Court of first instance, and this decree has been reversed by the trial Court in exercise of its appellate jurisdiction.
In such a situation clause (a) of the explanation would be attracted and an application for restitution will have to be made to the Court of first instance, i.e. the Court of Civil Judge, Senior Division, Gondal.
It is nowhere suggested that such a Court does not exist.
Therefore, it would not be proper for this Court to direct restitution.
However, there will be no justification for the appellant Bank to withhold the amount which was collected from the surety on a mere demand.
Therefore, an application for restitution made by the surety would not lie to this Court [928 B D, F H].
|
Civil Appeals Nos.
1303 of 1972 and 1538 of 1971.
Appeals by Special Leave from the Judgment and Orders dated 13 4 1971 of the Assam and Nagaland High Court in Civil Rule No. 368/68 and 174/68.
M. N. Phadke and section N. Choudhary for the appellant in CA.
No. 1538 and Respondent in CA No. 1303/72.
P. R. Mridul and K. P. Gupta for Respondent No. 1 in CA 1538 and Appellant in CA No. 1303/72.
The Judgment of the Court was delivered by KRISHNA IYER, J.
These two appeals, turning on the validity of the retrenchment of 23 workmen way back in 1966, are amenable to common disposal.
Mr. Phadke, appearing for the Management, argued straight to the point; so did Shri Mridul, with the result that we could get the hang of the case without much wrestling with time or getting paper logged.
Since, in substance, we are inclined to leave undisturbed the Award of the Industrial Tribunal, affirmed, as it were, by the High Court, both these appeals will be given short shrift with brief reasons.
968 The facts, to the extent necessary to appreciate the issues canvassed, are brief.
The Management of a tea plantation by name Jorehaut Tea Co., Ltd., retrenched 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of s.25F of the Industrial Disputes Act (for short, the Act) and in the order of 'last come, first go ', while the services of the other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of section 25G of the Act, i.e. out of turn.
The dispute that was raised was decided by the Tribunal which upheld the validity of the retrenchment of the 16 but set aside the termination of the other 7.
Consequently it directed their reinstatement with some back wages.
The Award granted the following relief: In respect of the workmen, viz., Sri Bhogeswar Saikia Sri Nandeswar Bora, Sri Gunai Bora, Sri Premodhar Sarma, Sri Alimuddin Ahmed, Sri Deven Sarma and Shri Harlal Biswas whose retrenchment has been found to be not justified they are entitled to reinstatement with continuity of service.
These workmen have not come forward to say that they remained unemployed from the date of their retrenchment.
In the circumstances of the case, I think they may be given wages at half the rate from the date of retrenchment till the date of publication of the award in the Gazette.
We may first dispose of the workers ' appeal.
In all, 23 persons were retrenched.
In respect of 16 the rule of 'last come, first go ' was applied.
Thus homage was paid to s.25G of the Act.
But then, the workmen in their appeal, contended before us that section 25F had been breached and, therefore, the termination was bad in law.
The Management 's case is that, as a fact, all or most of them had been reinstated when fresh vacancies had arisen, although neither party is able to assert with certainty this case of reinstatement.
That apart, if there be non compliance with s.25F, the law is plain that the retrenchment is bad.
However, when probed further as to how s.25F had been violated, Shri Mridul argued that the amount paid by way of retrenchment compensation envisaged in s.25F fell short of what was legally due and hence there was non compliance.
Under more searching interrogation, Shri Mridul stated that the compensation had been computed on the basis of wages previously paid and in derogation of the Wage Board Award which had been implemented by the Management with effect from 1 4 1966.
The retrenchment was on November 5, 1966, i.e. months after April 1, 1966.
Therefore, the revised pay scales as per the Wage Board Award should have been adopted in calculating the retrenchment compensation.
This spinal flaw rendered 969 the tender of compensation insufficient and, therefore, the retrenchment itself was invalid.
Maybe, there is apparent force in this contention.
But Shri Phadke countered it by saying that it was not open to the workmen to spring a surprise on the Management especially when the question was one of fact.
He urged that before the Tribunal no plea based on the Wage Board Award was made and it was quite possible that the Management would have adequately met the contention if such a plea had been raised.
The fact is that before the Tribunal the contention pressed before us was neither pleaded nor proved.
There is no hint of it in the Award.
In the High Court this new plea based on the facts was not permitted.
Had there been some foundation laid at least in the written statement of the workmen, we might have been inclined to explore the tenability of the plea, especially because there is no dispute about the Wage Board Award and the fact that it had been given effect to from 1 4 1966 and the further fact that in the retrenchment notice the wages were not calculated according to the Wage Board 's Award.
It must be remembered, however, that the Wage Board 's Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment.
In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court, dismiss the appeal.
But the 16 workmen, being eligible admittedly for the Wage Board scale, will be paid the difference for the period between 1 4 1966 to 5 11 1966.
Now, we will take up the merits of the Management 's appeal which relates to the retrenchment of seven workmen.
Admittedly, the rule in s.25G of the Act, which postulates that ordinarily the 'last come, first go ' will be the methodology of retrenchment, has not been complied with provided we treat all the workmen in the category as one group.
It makes for better appreciation of the point if we read section 25G at this stage: Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
The key note thought of the provision, even on a bare reading, is evident.
The rule is that the employer shall retrench the workman who came last, first, popularly known as 'last come first go '.
Of 970 course it is not an inflexible rule and extra ordinary situations may justify variations.
For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched.
There must be a valid reason for this deviation, and obviously, the burden is on the Management to substantiate the special ground for departure from the rule.
Shri Phadke brought to our notice the decision in M/s Om Oil & Oilseeds Exchange Ltd., Delhi vs Their Workmen to make out that it was not a universal principle which could not be departed from by the Management that the last should go first.
The Management had a discretion provided it acted bona fide and on good grounds.
Shah, J. in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by mala fides or induced by unfair labour practice merely because of a departure or deviation, further observed that the Tribunal had to determine in each case whether the Management had acted fairly and not with ulterior motive.
The crucial consideration next mentioned by the learned Judge is that the Management 's decision to depart from the rule must be for valid and justifiable reasons, in which case "the senior employee may be retrenched before his junior in employment.
" Surely, valid and justifiable reasons are for the Management to make out, and if made out, section 25G will be vindicated and not violated.
Indeed, that very decision stresses the necessity for valid and good ground for varying the ordinary rule of 'last come first go '.
There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance with section 25G grade wise.
Absence of mala fides by itself is no absolution from the rule in section 25G.
Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first go ' principle.
It must be remembered that the above provision which we have quoted insists on the rule being applied category wise.
That is to say, those who fall in the same category shall suffer retrenchment only in accordance with the principle of last come first go.
The short point raised is that the seven workmen are not in the same category.
The finding of the Tribunal, concurred in by the High Court is that they fell in the same category.
We quote the award: "It will be seen that when there is no trade test or anything to mark efficiency, there is no basis for placing the workmen in different grades and when all the workmen of the same category are to do the same work inasmuch as by the management 's own evidence there is no gradewise allo 971 cation of duty within the same category.
Although in the evidence the Management wanted to justify their departure from the principle of 'last come first go ' there is nothing to show that such a reason was recorded for deviating from the principle.
In the circumstances of the case it cannot be said that the management 's selection of persons to be retrenched leaving the juniormost in some category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at the time of retrenchment.
Further it will be also noticed that although there is classification of workmen into grades (?) within the category, there is nothing to distinguish one workman of one grade from another workman of another Grade inasmuch as there is no allocation of duties amongst the workmen of different Grades in the category.
" The seniority list is the same, which is a telling circumstance to show that they fell in the same category.
Grading for purposes of scales of pay and like considerations will not create new categorisation.
It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories.
This fallacy has been rightly negatived by a detailed discussion in the Award.
The High Court has avoided the pitfall and we decline to accept the submission.
The result is that the Award must hold good in regard to the illegally retrenched seven workmen.
What remains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these seven workmen are to be reinstated is no longer in existence.
Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law.
He, therefore, pleads for moulding the relief less harshly.
We cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble.
The Award had given convincing reasons for reinstatement and even reduced the back wages to half.
Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance.
The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicial process.
972 Misplaced sympathy is mirage justice.
We cannot agree.
Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.
So we direct that half the back wages between the date of retrenchment and the publication of the Award shall be paid, as directed in the Award itself.
For the post Award period, full wages will be paid until the High Court 's judgment on 13 4 71 and thereafter 75% of the wages will be paid until 30 4 1980.
Counsel contends that the Workshop is not in existence now and reinstatement is physically impossible.
Sri Mridul, for the workmen, states that a just solution by the court in the given circumstances is acceptable.
We direct that, in lieu of reinstatement, one year 's wages calculated on the scale sanctioned by the Wage Board recommendations for each such workman be paid.
All the sums, if not paid before 15 5 80, shall carry 12% interest.
And upto 15 5 80 they shall carry 9% interest in supersession of the interim order dated 5 5 72.
Rough and ready justice, for want of full information, is not satisfactory but cannot be helped.
We dismiss the workmen 's appeal.
No costs.
We dismiss the Management 's appeal, subject to the above directions, with costs quantified at Rs. 5,000/ .
section R. Appeals dismissed.
| IN-Abs | The Management Tea Co. Ltd. appellant in C. A. 1538/71 retrenched on November 5, 1966, 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of section 25F of the Industrial Disputes Act based on wages obtaining prior to Wage Board Award, which came into force on 1 4 66 retroactively and in the order of 'last come, first go ', while the services of other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of Section 25G of the Act, i.e. out of turn.
The dispute that was raised was decided by the Tribunal which upheld the validity of the retrenchment of the 16, but set aside the termination of the other seven.
The High Court agreed with the Tribunal 's Award and hence the appeals both by the workmen and the management after obtaining special leave.
Dismissing both the appeals, the Court ^ HELD: 1.
The plea that the amount paid by way of retrenchment compensation envisaged in Section 25F of the Industrial Disputes Act, not having been computed as per the revised pay scales as per the Wage Board Award, fell short of what was legally due and hence there was non compliance is not tenable because before the Tribunal this contention was neither pleaded nor proved.
There was no hint of it in the Award.
In the High Court this new plea based on the facts was not permitted.
Further the Wage Boards ' Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment.
In the absence of any basis for this new plea Supreme Court cannot reopen an ancient matter of 1966.
But the 16 Workmen, being admittedly eligible for the Wage Board scale, would be paid the difference for the period between 1 4 66 to 5 11 66.
[969 A E] 2.
Section 25G of the Industrial Disputes Act postulates that ordinarily the 'last come, first go ' will be the methodology of retrenchment.
Of course, it is not an inflexible rule and extra ordinary situations may justify variations.
There must be valid reason for this decision, and, obviously, the burden is on the Management to substantiate the special ground for departure from the rule.
Surely, valid and justifiable reasons are for the management to make our, and if made out, section 25G will be vindicated and not violated, varying the ordinary rule of 'last come first go. ' There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance 967 with section 25G grade wise.
Absence of mala fides by itself is no absolution from the rule in s.25G.
Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first go ' principle.
The above rule can be applied category wise.
That is to say those who fell in the same category shall suffer retrenchment only in accordance with the principle of last come first go.
[969 E, H, 970 A, B, D F] M/s. Om Oil & Oil Seeds Exchange Ltd., Delhi vs Their Workmen, , followed.
Grading for purposes of scales of pay and like considerations will not create new categorisation.
It is a confusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories.
In the instant case, the seniority List is the same which is a telling circumstance to show that they fell in the same category.
[971 C E] 4.
Supreme Court cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble.
The Award had given convincing reasons for reinstatement and even reduced the back wages to half.
Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance.
The logistics of litigation for indigent workmen is a burden the management tried to use by a covert blackmail through the judicial process.
Misplaced sympathy is a mirage justice.
[971 G H, 972 A B]
|
Civil Appeals Nos. 2224, 2225 and 2226 of 1979.
Appeals by Special Leave from the Judgment and Order dated 22 5 1979 of the Delhi High Court in Civil Writ Nos. 111, 551 and 284 of 1979.
V.M. Tarkunde, A. K. Sen, G. L. Sanghi, B. P. Maheshwari and section K. Bhattacharya for the Appellants in C.A.s. 2224, 2225, 2226/79.
P. R. Mridul, Vimal Shanker, K. R. R. Pillai, P. N. Wadhera and Aruneshwar Gupta for Respondent No. 1 in CA 2224/79.
D. D. Chawla, Vineet Kumar and R. section Sihota for Respondent Nos.
1 3 in CA 2225/79.
B. D. Sharma and Aloka Bhattacharya for Respondent No. 1 in CA 2226/79.
950 The Judgment of the Court was delivered by UNTWALIA J.
These three appeals by the Bar Council of Delhi and the Bar Council of India are from the common judgment of the Delhi High Court allowing three writ petitions filed by the first respondent in each appeal and others seeking the setting aside of the election of the Bar Council of Delhi held in the year 1978.
As the points involved in them are identical they are all being disposed of by this common judgment.
We shall proceed to state the facts from the records of Civil Appeal No. 2224 of 1979 in which respondent No. 1 is Shri Surjeet Singh Bhangul.
He was a voter as also a candidate for the election wherein he lost.
In the writ petition giving rise to Civil Appeal 2225 of 1979 there were three petitioners two were candidates but Shri D. R. Thakur was an advocate whose name was not included in the electoral roll although his name occurs in the State roll of Advocates.
Shri A. section Randhawa, respondent No. 1 in Civil Appeal 2226 of 1979 was a person whose name occurred both in the State roll of Advocates as also in the electoral roll.
But he was not a candidate.
Surjeet Singh was an advocate who was a member of the Delhi Bar Council before the impugned election.
A proviso was added to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 in the year 1978.
In accordance with that proviso a copy of the declaration form was sent on 14th June, 1978 to the advocates whose names found place in the State roll of Advocates asking them to return the declaration form duly filled up and signed within the specified period.
A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc.
The last extended date for the submission of the declaration forms was 14th September 1978 and the electoral roll was finally published on the 16th September 1978 excluding the names of about 2,000 advocates who had failed to submit such declaration forms.
On the basis of the electoral roll so prepared, according to the programme of election, the election of members to the Bar Council of Delhi was held on the 17th November 1978.
The total number of advocates on the Advocates roll was 5,000 and odd out of which the names of about 3,000 and odd only were included in the electoral roll in accordance with the proviso to Rule 3(j) of the Election Rules of the Bar Council of Delhi.
The results of the election were declared on the 19th November, 1978.
The names of the 15 persons who were declared elected were published in the Gazette on the 22nd November, 1978.
Thereafter on the 24th of January 1979 the writ petition was filed in the High Court challenging the whole election by attacking the validity of the proviso to Rule 3(j).
951 Apart from the successful candidates the writ petitions were mainly and vigorously contested by the two Bar Councils, namely, the Bar Council of Delhi and the Bar Council of India.
The latter seems to have taken keen interest in the matter of contesting the writ petitions because the impugned proviso to Rule 3(j) was introduced in the Election Rules with the approval of the Bar Council of India in accordance with the requirement of sub section
(3) of Section 15 of the .
The High Court has taken the view: (1) "Lastly, the irresistible conclusion, therefore, is that so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on the Electoral Roll are concerned only the Bar Council of India has the competence to make the rules under Section 3 (4) and Section 49 (1) (a) and the State Bar Council has no power at all to make a rule on this subject." (2) The plea of estoppel raised against Surjeet Singh was rejected.
(3) "Rank injustice has been done to the petitioner because more than 2,000 advocates were wrongfully disqualified from being brought on the Electoral Roll.
This has materially affected the result of the election." (4) "For the reasons stated above, we hold that Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, is in excess of the rules making power of the Bar Council of Delhi.
Since the action taken by the Bar Council of Delhi to disqualify more than 2,000 advocates because of their non compliance with the proviso to Rule 3(j) has resulted in great prejudice to the petitioner who can justly claim that the bringing on the Electoral Roll of more than 2000 advocates would have made a considerable difference to his own election and to the election as a whole, we are constrained to set aside the election to the Bar Council of Delhi held on 17th November 1978.
" M/s V. M. Tarkunde, A. K. Sen and G. L. Sanghi appearing for the appellants, broadly speaking, made the following submissions: (1) That the impugned proviso of Delhi Bar Council Election Rules was valid as it was within the competence of the Delhi Bar Council to add such a proviso in the Rules under its rule making power with the approval of the Bar Council of India.
In any event the ap 952 proval had the effect of making it a rule made by the Bar Council of India.
(2) The electoral roll prepared by the Bar Council of Delhi could not be challenged in a writ petition.
The preparation of the electoral roll is final and any wrong exclusion or inclusion of name from or in the electoral roll is beyond the pale of challenge in a writ petition.
(3) That it was not shown that the result of the election has been materially affected due to the non inclusion of the names of about 2,000 advocates from the electoral roll.
There was neither any pleading to this effect nor was any material placed before the High Court in support of this assertion.
(4) That Surjeet Singh and others like him who had taken part in the election and were defeated were estopped from challenging the election as they could not approbate and reprobate at the same time.
They were guilty of laches also as they could have challenged in the High Court the validity of the impugned proviso before the election was actually held.
(5) That there is a specific remedy provided in the Delhi Bar Council Election Rules for challenging any election to the Bar Council and hence in view of the adequate remedy being available the election could not be challenged by a writ petition.
M/s. P. R. Mridul and F. section Nariman appearing for the contesting respondents combated all the submissions made on behalf of the appellants and supported the judgment of the High Court.
We find no substance in any of the points urged on behalf of the appellants.
We are, by and large, in agreement with the decision of the High Court on each and every point.
We proceed to briefly state our reasons for the same.
Section 4 of the provides for persons who may be admitted as advocates on a State roll.
Clause (e) of sub section
(1) says that the person must fulfil such other conditions as may be specified in the rules made by the State Bar Council under Chapter III of the Act which concerns the admission and enrollment of advocates.
Under the Rules so framed a person desirous of being enrolled as an advocate has to apply in the prescribed form furnishing all the details of his qualifications to be enrolled as an advocate.
In item 3 of the application the applicant declares "I declare that upon admission I pro 953 pose to practise within the State of Delhi.
" At the end of the application form certain undertakings are given by the applicant.
Clause (c) of the undertaking runs thus: "I hereby declare and undertake that (iv) I intend to practise ordinarily and regularly within the jurisdiction of the Bar Council of Delhi.
(v) I shall inform the Bar Council of any change of address of my residence or place of practice for the proper maintenance of the roll and voters ' list." According to the case of the Delhi Bar Council many advocates after having been enrolled and put on the State roll of advocates of Delhi break the said undertaking.
They do not ordinarily and regularly practise within the jurisdiction of the Bar Council of Delhi nor do they inform any change of address for the proper maintenance of the roll and the voters ' list.
It is a pertinent matter no doubt.
It is the duty of the Bar Council to obtain information as to whether any person put on the roll of State advocates ceased ordinarily and regularly to practise within the jurisdiction of the Bar Council of Delhi, if so, to take steps for removal of his name from the State rolls.
That would automatically, as we shall presently show, debar the person concerned to be put on the electoral roll.
But no provision in the or any rule was brought to our notice enabling the Delhi Bar Council to remove the name of a person from the State roll if he has broken the undertaking aforesaid.
Section 26A of the merely says "A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.
" In para 2 of the affidavit of Shri D. Gupta, Advocate it is stated: "It is the experience of this Council that most of the advocates who are elevated to the Bench or those who join subordinate judiciary or family or other business or employment, seldom care to notify this Council to get their licence revoked or suspended, nor do the advocates shifting their place of practice from Delhi to elsewhere, care to notify this Council in that respect, although the undertakings at internal page 8 of the Enrollment form of this Council obliges them to do so.
" It may be so but the lacunae in this regard have got to be removed by amending the or by properly framing the rules in that 954 respect.
We are definitely of the opinion that so long the existing rules framed by the Bar Council of India remained in vogue all persons whose names are on the State roll are entitled proprio vigore to be put on the electoral roll.
Rule 1 occurring in Chapter I of of the Bar Council of India Rules says: "1.
Every advocate whose name is on the Electoral Roll of the State Council shall be entitled to vote at an election.
" Rule 2 provides: "2.
Subject to the provisions of Rule 3, the name of every advocate entered in the State Roll shall be entered in the electoral roll of the State Council.
" Exceptions to Rule 2 are to be found embodied in Rule 3 which runs thus: "3.
The name of an advocate appearing in the State Roll shall not be entered in the Electoral Roll, if on information obtained by the State Council: (a) his name has any time been removed; (b) he has been suspended from practice, provided that this disqualification shall operate only for a period of five years from the date of the expiry of the period of suspension; (c) he is an undischarged insolvent; (d) he has been found guilty of an election offence in regard to an election to the State Council by an Election Tribunal, provided however that such disqualification shall not operate beyond the election next following after such finding has been made; (e) he is convicted by a competent court for an offence involving moral turpitude, provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release; (f) he is in full time service or is in such part time business or other vocation not permitted in the case of practising advocates by the rules either of the State Council concerned or of the Council; (g) he has intimated voluntary suspension of practice and has not given intimation of resumption of practice.
" None of the clauses in Rule 3 covers a clause of the kind found in the proviso to Rule 3(j) of the Delhi Bar Council Election Rules.
955 Rule 3 of Delhi Bar Council Election Rules is headed 'Interpretation".
Clause (j) of the said Rules says: ""Electoral Roll" means and includes the roll containing the names of the advocates prepared in accordance with the rules of the Bar Council of India in Part III, Chapter I." The impugned proviso added to clause (j) in the year 1978 runs thus: "Provided that the Electoral Roll shall not include the name of such advocate who fails to file in the office of the Bar Council, on or before such date (not being earlier than 30 days of the date of notification) as may be notified by the Bar Council in such manner as may be considered proper by it from time to time, or within 45 days of the putting up of the preliminary Electoral Roll under Rule 4(1) of Chapter I of Part III of the Bar Council of India Rules, a declaration containing the name, address and number of the advocate on the State Roll and to the effect that: (a) He is an advocate ordinarily practising in the Union Territory of Delhi and that his principal place of practice is within Union Territory of Delhi; (b) He is not an undischarged insolvent; (c) He has never been convicted by any court for an offence involving moral turpitude; or A period of two years has elapsed since his release after being convicted of an offence involving moral turpitude; (In case of conviction particulars of such conviction should be given) (d) He is not in full time service or business or in any such part time business or other vocation as is not permitted in the case of practising advocates by the rules of the Bar Council; and (e) He has not been suspended from practice; and on the failure to file the declaration or on filing of incomplete or incorrect declaration in any respect, it shall be presumed that the name of such advocate is not to be entered on the Electoral Roll in accordance with Rule 3 of Chapter I of Part III of the Bar Council of India Rules.
" 956 In these appeals we are not concerned with the propriety or legality of asking such a declaration from a person belonging to the noble profession.
We shall proceed on the assumption that such an information could be asked for from a person concerned whose name is on the State roll of Advocates.
On the furnishing of such information the name of the advocate concerned could not be included in the electoral roll only if on the basis of that information one or more clauses of Rule 3 of the Bar Council of India Rules to be found in Part III, Chapter I could come into play, not otherwise.
In these appeals we are not concerned with any such case.
The controversy here centres round the fact that under the impugned proviso mere failure to file the required declaration disqualified the advocate concerned from being put on the electoral roll thus depriving him of his right to vote or to stand as a candidate.
The crux of the matter in these appeals is as to whether such a proviso was valid or ultra vires.
In order to determine the point at issue we shall now read some relevant provisions of the .
Section 3 provides for the constitution of the State Bar Council, sub section
(4) of which says: "(4) An advocate shall be disqualified from voting at an election under sub section (2) or for being chosen as, and for being, a member of a State Bar, Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.
" On a plain reading of this sub section it is manifest that under the Act the qualifications and conditions entitling an advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India.
The State Bar Council has no such power.
The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the rules made by the Bar Council of India concerning the qualifications and conditions aforesaid.
This interpretation of Section 3(4) of the Act finds ample support from the very special and specific provision contained in section 49(1)(a) providing for the general power of the Bar Council of India in these terms: "49.
(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe 957 (a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council;" Great reliance was placed on behalf of the appellants on the concurrent power of the State Bar Council and the Bar Council of India engrafted in section 15 of the .
It is true that the power to make rules conferred by section 15 is both for the Bar Council of India as also for the Bar Council of a State.
But no provision of section 15 can override the specific provision made in section 3(4) and section 49(1)(a) of the Act.
Sub section (1) of section 15 says "A Bar Council may make rules to carry out the purposes of this Chapter" which means Chapter II including section 3.
But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaid.
The relevant words of sub section 2(a) of section 15 are the following: "In particular, and without prejudice to the generality of the foregoing power, such rules may provide for : (a) . . the preparation and revision of electoral rolls and the manner in which the results of election shall be published.
" The State Bar Council can frame rules for the preparation and revision of electoral rolls under section 15(2)(a).
That would be in conformity with the latter part of sub section (4) of section 3 also.
But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election.
In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll.
Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under sections 3(4) and 49(1)(a) of the .
The State Bar Council had no such power.
958 Sub section
(3) of section 15 says: "No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.
" Introduction of the impugned proviso in Rule 3(j) of the Delhi Bar Council Election Rules was approved by Resolution No. 18 of 1978 passed by the Bar Council of India.
Any rule made by the State Bar Council cannot have effect unless it is approved by the Bar Council of India.
But the approval of the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is within the competence of the State Bar Council, otherwise not.
Mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid.
Nor has it the effect of a rule made by the Bar Council of India.
Making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things.
One cannot take the place of the other.
We, therefore, hold that the impugned proviso to Rule 3(j) of the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law.
We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition.
It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names.
For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play.
But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said rule.
The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld.
There is no question of the result being materially affected in such a case.
The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches.
In the first instance some of the contesting respondents were merely voters.
Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter.
As a voter he could challenge the election even 959 assuming that as a candidate after being unsuccessful he was estopped from doing so.
But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso.
There is no question of approbation and reprobation at the same time in such a case.
A voter could come to the High Court even earlier before the election was held.
But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non suited only on that account.
There is no substance in the last submission made on behalf of the appellants.
The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules.
This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account.
Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case.
Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.
Our attention was specifically drawn to clause (8) of Rule 34 which says: "No petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character.
" As we have said above, it is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparation of the whole electoral roll was null and void because of the invalidity of the impugned proviso.
We now proceed to refer to some relevant decisions of the High Courts and of this Court cited at the Bar in support of some of the points discussed above.
Mudholkar J., delivering the leading and the majority judgment of a Full Bench of the Nagpur High Court in Kanglu Baula Kotwal & another vs Chief Executive Officer, Janpad Sabha, Durg and others, rejected the plea of estoppel to challenge the election at page 58, para 25 in these terms: "As regards the petitioners who were also candidates at the elections but were defeated, the learned counsel said that 960 those who took their chances at the elections and failed should not now be allowed to challenge elections of their opponents on the ground that the electoral rolls were defective.
The plea is in substance one of estoppel.
There can be no question of any estoppel, because it cannot be said that the position of the other side has in any way altered by reason of something done or not done by the petitioners.
" We are of the view that neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into services in this case.
In Chief Commissioner, Ajmer vs Radhey Shyam Dani the respondent before the Supreme Court had filed a writ petition in the Court of Chief Commissioner of Ajmer challenging the validity of the notification directing the holding of the election of the Ajmer Municipality and the electoral roll.
This challenge was made before the election was held.
Since the electoral roll prepared was found to be invalid as it was prepared in accordance with some invalid rules, a Constitution Bench of this Court upheld the decision of the Chief Commissioner.
At page 75, Bhagwati J., speaking for the Court said: "It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications.
Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such Enrollment.
Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.
It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective." Finally at pages 76 and 77 it was said: "If Rules 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll 961 of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of section 30, sub section
(2), of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality.
If that was the true position the electoral roll of the Municipality which has been authenticated and published by the Chief Commissioner on August 8, 1955 was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter." In the instant case the electoral roll was prepared on the basis of a rule which has been found to be void and ultra vires.
That being so, even though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll.
Dani 's case (supra) was followed by the Patna High Court in two decisions.
In Parmeshwar Mahaseth and others vs State of Bihar and others and Umakant Singh and others vs Binda Choudhary and others.
After quoting a passage at page 153 from Dani 's case Kanhaiya Singh J., said in Parmeshwar Mahaseth 's case at the same page in paragraph 14 thus: "It was urged by the learned Government Advocate that the election cannot be disputed except by an election petition, as laid down in R. 62 of the Election Rules.
He submitted that petitioner 9, had already filed an election petition after the presentation of this writ application.
This contention is not valid.
What is challenged here is not the election of a particular candidate, but the validity of the entire election, because of the violation of the essential provisions of the Election Rules and the Act.
I think, R. 62 provides for a case where a person challenges the election of a particular candidate.
I would overrule the objection.
" In Umakant 's case the Court quoted the passage from Dani 's case from page 461 and finally expressed the view in paragraph 12 at page 462 in these terms: "Mr. Shankar Kumar appearing for respondents 6 and 7 submitted that the election ought to have been challenged 962 by following the machinery provided in rule 148 of the rules, and this Court, in exercise of its power under Article 226 of the Constitution, should not interfere with the election when a special machinery was provided for challenging it.
I am unable to accept this argument.
It is the well settled view of the Court that if the entire election is challenged as having been held under statutes or statutory rules which are invalid or by committing illegalities which make the entire election void, it can be quashed by grant of a writ in the nature of certiorari." A Full Bench of the Punjab High Court in Dev Prakash Balmukand vs Babu Ram Rewti Mal and others had occasion to consider this question and in that connection at page 434 Dulat J., said in paragraph 15: "Everybody, of course, agrees that, if the very foundation of the election, namely, the electoral roll is illegal, no election on its basis can proceed or be allowed to stand, but that does not mean that any kind of defect in the roll, however technical in its nature, will suffice to reach such a conclusion.
" It would thus be seen that it depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election for deciding the question as to whether a writ petition would be maintainable or not.
In Ramgulam Shri Baijnath Prasad vs The Collector, District Guna and others Oza J., delivering the judgment of the Division Bench stated in para 17 at page 152 thus: "It was also contended that the petition was not filed immediately, but has been filed after the elections were over.
As regards the question of estoppel we had already considered it and found that the petition under article 226 cannot be disposed on the question of estoppel.
As regards delay, it is sufficient to state that it could not be said that the petition was unduly delayed.
Apart from it, it is also clear that an election held on the basis of rolls which have not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.
" 963 The Madhya Pradesh High Court has taken a similar view in the case of Bhupendra Kumar Jain vs Y. section Dharmadhikari and others wherein it was held that the entire election could be challenged on the basis of certain types of illegalities committed in holding it.
Shri Bhoop Singh, an Advocate and a member of the Bar Association at Chandigarh was a candidate to the Bar Council of Punjab & Haryana.
After being unsuccessful he challenged the election by filing a writ petition in the High Court.
The full Bench of the Punjab & Haryana High Court in Bhoop Singh vs Bar Council of Punjab and Haryana through its Secretary and others dismissed the writ petition on the particular facts of that case.
Yet the view expressed at page 43 in para 9 was: "I am extremely doubtful whether the nature of the relief which the petitioner claims here, namely the setting aside of the whole of the election and the ordering of a repoll could be claimed by way of an election petition under rule 34(1).
No provision in the said rule was brought to our notice which in express terms empowers or warrants the setting aside of the whole of the election (in contradistinction to the election of individual candidates) or to direct a repoll.
In any case it is well settled that the existence of an alternative remedy is not an absolute legal bar to the issuance of a writ".
Reliance was placed for the appellants upon the decision of this Court in K. K. Shrivastava etc.
vs Bhupendra Kumar Jain and others that because of rule 34(8) of the Delhi Bar Council Election Rules the writ petitions ought to have been held to be not maintainable.
It would be noticed from the facts of that case that an election petition had already been filed.
About four months later a writ petition was also filed to challenge the election.
At page 1704, column 1 Krishna Iyer J., speaking for the Court said: "One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off.
This is more particularly so where the dispute relates to an election.
Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms".
964 But he added: "While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition." Finally the view expressed in K. K. Shrivastava 's case is: "There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action.
On the other hand the circumstances of this case convince us that exercise of the power under article 226 may be described as mis exercise.
" We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of article 226 of the Constitution.
If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates.
But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy then the remedy of writ petition to challenge the whole election is still available.
In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all.
Appellants heavily relied upon an unreported decision of the Calcutta High Court in Suryya Kumar Ray vs The Bar Council of India & Ors.
The challenge to the election to the Bar Council of West Bengal was almost on grounds which are similar to those in the present case.
The Calcutta High Court upheld the validity of the Rule and the election held on the basis of electoral roll prepared in accordance with that Rule and dissented from the view of the Gujarat High Court in Harish Sambhu Prasad vs Bar Council of Gujarat.
965 The learned Judge said with reference to the decision of the Gujarat High Court thus: "It appears to me that this decision will not be of much assistance to the petitioner in the instant case in as much as the electoral rules which are before me have duly been approved by the Bar Council of India itself.
Such approval confers upon these rules the authority and sanction of the Bar Council of India and may be deemed to be the rules framed by the Bar Council of India.
" The enunciation of the law as made above, in our opinion, is not correct.
We have held to the contrary.
For the reasons stated above, we dismiss all the appeals but make no order as to costs in any of them.
S.R. Appeals dismissed.
| IN-Abs | In the year 1978, a proviso was added to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 with the approval of the Bar Council of India in accordance with the requirement of Sub section (3) of section 15 of the .
In accordance with that proviso a copy of the declaration form was sent on 14th June, 1978 to the Advocates whose names found place in the State roll of Advocates asking them to return the declaration form duly filled up and signed within the specified period.
A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc.
The last extended date for the submission of the declaration forms was 14th September, 1978 and the electoral roll was finally published on the 16th September, 1978 excluding the names of about 2,000 Advocates who had failed to submit such declaration forms.
On the basis of the electoral roll so prepared, elections to the Bar Council of Delhi was held on the 17th November, 1978.
The total number of advocates on the Advocates roll was 5,000 and odd out of which the names of about 3,000 and odd only were included in the electoral roll in accordance with the proviso to Rule 3(j) of the Election Rules of the Bar Council of Delhi.
The results of the election were declared on the 19th November, 1978.
The names of the 15 persons who were declared elected were published in the Gazette on the 22nd November, 1978.
Thereafter the respondents in these appeals filed writ petitions challenging the whole election by attacking the validity of the proviso to Rule 3(j).
The Delhi High Court allowed the three writ petitions taking the view, (i) so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on to the Electoral Roll was concerned only the Bar Council of India has the competence to make the rules under section 3(4) and section 49(1)(a) of the and the State Bar Council has no power at all to make a rule on this subject; (ii) the plea of estoppel against Surjeet Singh does not arise, (iii) rank injustice has been done to the petitioners because more than 2000 advocates were wrongfully disqualified being brought on the Electoral Roll.
This has materially affected the result of the elections; and (iv) Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 is in excess of the rules making power of Bar Council of Delhi.
Dismissing the appeals by special leave the Court, ^ HELD: 1.
The impugned proviso to Rule 3(j) of the Delhi Bar Council of Election Rules is ultra vires and invalid and the electoral roll prepared by 947 the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2000 advocates from the said roll was not valid in law.
[958D E] (b) The whole election was invalid on that account and it could be challenged as such in a writ petition.
It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names.
For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play.
But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said rule.
[958E F] However, it depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election for deciding the question as to whether a writ petition would be maintainable or not.
[862E F] Chief Commissioner, Ajmer vs Radhey Shyam Dani, ; ; Parmeshwar Mahaseth and Ors.
vs State of Bihar and Ors.
, ; Umakant Singh and Ors.
vs Binda Choudhary and Ors., AIR 1965 Patna 459; Dev Prakash Balmukand vs Babu Ram Rewti Mal and Ors.
AIR 1961 Punjab 429; Ramgulam Shri Baijnath Parsad vs The Collector, District Guna and Ors., and Bhoop Singh vs Bar Council of Punjab and Haryana through its Secretary and Ors., AIR 1976 M.P. 110; referred to.
(c) The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld.
There is no question of the result being materially affected in such a case.
[958F G] (d) The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches.
In the first instance some of the contesting respondents were merely voters.
Even Sri Surjeet Singh in his writ petition claimed to be both a candidate and a voter.
As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so.
But, merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso.
There is no question of approbation and reprobation in such a case.
A voter could come to the High Court even earlier before the election was held.
But merely because he came to challenge the election after it was held it cannot be said that he was guilty of laches and must be non suited on that account.
[958F H, 959A B] Kanglu Beula Kotwal and Anr.
vs Chief Executive Officer, Janpad Sabha, Durga and Ors., ; distinguished.
(e) The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules.
This is not an 948 appropriate and adequate alternative remedy to defeat the writ petitioner on that account.
Firstly, no clause of Rule 34 covers the challenging of the election on the ground that it has been done in this case.
Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.
It is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparation of the whole electoral roll was null and void because of the invalidity of the impugned proviso.
[959C D, E F] Ramgulam Shri Baijnath Pd.
vs The Collector, Dist.
Guna and Ors., and Bhupendra Kumar Jain vs Y. section Dharmadhikari and Ors., AIR 1976, M.P. 110; referred to.
Bhoop Singh vs Bar Council of Punjab and Haryana through its Secretary and Ors., AIR 1977 Pb. & Haryana; quoted with approval.
K. K. Srivastava etc.
vs Bhupendra Kumar Jain and Ors., AIR 1977 S.C. 1703; distinguished.
If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates.
But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available.
In the present case the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all.
[964D F] Suryya Kumar Ray vs The Bar Council of India and Ors.
Matter No. 304 of 1976 decided on December 17, 1976, overruled.
Harish Sambhu Prasad vs Bar Council of Gujarat, Special Civil Application Nos. 542 and 551 of 1969; approved.
So long the existing rules framed by the Bar Council of India remained in vogue all persons whose names are on the State Roll are entitled proprio vigore to be put on the electoral roll.
Sections 24(e) (1) and 26A of the read with Rules 1, 2 and 3 of Chapter I of of the Bar Council of India Rules make this position clear.
[954A B, D H] 4.
On a plain reading of sub sections 4 of section 3 of the , it is manifest that under the Act the qualifications and conditions entitling an advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India.
The State Bar Council has no such power.
The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the Rules made by the Bar Council of India concerning the qualifications and conditions aforesaid.
This interpretation of Section 3(4) of the Act finds ample support from the very special and specific provision contained in section 49(1) (a) providing for the general power of the Bar Council of India.
[956F H] 949 5.
It is true that the power to make rules conferred by section 15 is both for the Bar Council of India as also for the Bar Council of a State.
But no provision of section 15 can override the specific provision made in section 3(4) and section 49(1)(a) of the Act.
Sub section (1) of section 15 says "A Bar Council may make rules to carry out the purposes of this Chapter" which means Chapter II including section 3.
But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaid.
[957B D] The State Bar Council can frame rules for the preparation and revision of electoral rolls under section 15(2)(a).
That would be in conformity with the latter part of sub section (4) of section 3 also.
But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election.
In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll.
Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under sections 3(4) and 49(1)(a) of the .
The State Bar Council had no such power.
[957F H] 6.
The approval of the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is within the competence of the State Bar Council otherwise not.
Mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid.
Nor has it the effect of a rule made by the Bar Council of India.
Making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things.
One cannot take the place of the other.
[958B D]
|
Civil Appeal No. 2109 of 1979.
Appeal by Special Leave from the Judgment and Order dated 7 5 1979 of the Allahabad High Court in Civil Revision No. 900 of 1978.
A.K. Sen, B.S. Banerjee and R.N. Govind for the Appellant.
J.P. Goyal and S.K. Jain for Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A brief back drop leads to the short point in issue.
Chronic scarcity of accommodation in almost every part of the country has made 'eviction ' litigation explosively considerable, and the strict protection against ejectment, save upon restricted grounds, has become the policy of the State.
Rent Control Legislation to give effect to this policy exists everywhere, and we are concerned with one such in the State of U.P. (U.P. Act 13 of 1972).
The legislature found that rent control law had a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, 'new constructions ' for a period of ten years.
So much so, a landlord who had let out his new building could recover possession without impediment if he instituted such proceeding within ten years of completion.
The respondent is a landlady who claims to fill the bill in this setting and seeks to evict the appellant tenant untrammeled by the provisions of the Act.
She has succeeded in both the courts below and the appellant challenges the order as illegal and vitiated by a basic error of approach.
We should have made short work of it had there not been the need for this Court to set the sights right in the class, of litigation where exemption from the operation of the Act is claimed on the ground that the construction is new and the case is filed within the ten year moratorium.
If the exemption is erroneously liberalised to frustrate the principal measure by failure to stick to basic legal principles, the jurisprudence of rent control may become too jejune to be socially effective.
That is why we examine a few fundamentals here in the decisional process of this class of cases.
The area of controversy, factual and legal, is small.
The respondent purchased shop No. 66 in the city of Jhansi in 1969 from one Brij Mohan (DW2), occupied the first floor and allowed the appellant, as tenant, to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965.
In 1975 the present eviction action was instituted on the basis that the building was new, that the Act did not debar eviction of new constructions put up within ten years of the suit and so a decree was inevitable.
1037 The tenant resisted the claim on the plea that the building was constructed 50 years ago.
The trial court negatived the defence and decreed eviction and this was upheld by the High Court.
If it were a bare finding of fact we should not have reopened it, but Shri A.K. Sen argues that fundamental flaws in the understanding of the law have vitiated the decision which, if left uncorrected, will spell a new class of litigation for eviction by easy resort to the 'new construction expedient.
Such possible public mischief persuades us to have a closer look at the Act to the extent relevant.
Shri J.P. Goel rightly reminds us that in the normal course the appeal must be dismissed as concluded by findings of fact.
But we will probe the matter further to explore whether there is any substance in Shri A.K. Sen 's argument of fundamental failure bearing on the legality of the conclusions.
The anatomy of the Act is substantially the same as that of other similar legislations.
The most important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of new constructions.
Section 2(2) is relevant in this context and runs as follows: Except as provided in sub section (5) of section 12 sub section (1A) of section 21, sub section (2) of section 24, sections 24A, 24B, 24C or sub section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.
xxx xxx xxx Explanation I.
For the purposes of this sub section, (a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied 1038 separately by the landlord and one or more tenants or by different tenants.
(b) 'construction ' includes any new constructions in place of an existing building which has been wholly or substantially demolished; (c) Where such substantial addition is made to an existing building, that the existing building becomes only a minor part thereof, the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
This sub section and its construction is decisive of the fate of the appeal.
Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date on which its construction is completed.
" The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates.
Therefore, the landlord who seeks exemption must prove that exception.
The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit.
It is not for the tenant to prove that the building has been constructed beyond a period of ten years.
But it is for the landlady to make out that the construction has been completed within ten years of the suit.
This is sensible not merely because the statute expressly states so and the setting necessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant.
As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof.
Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.
Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit.
The second thing we have to remember is Explanation 1 quoted above.
When is a building deemed to have been completed? An analysis of Explanation 1 to s.2(2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or other wise recorded by the local authority having jurisdiction.
1039 (2) Where a building has been assessed, it is the date on which the first assessment comes into effect.
Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.
(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction ).
It is common case that Shop Nos. 65 and 66 were owned by a common owner, Shri Brij Mohan, DW2.
He sold only Shop No. 66 to the respondent.
So, there is no doubt, that there was an existing building, Shop No. 66, long prior to the ten year period mentioned in the statute.
According to the testimony of Shri Brij Mohan, DW2, the old construction continued, but certain additions and remodelling were done.
He had submitted a plan to the local authority indicating the original construction and the proposed additions, and that is marked as Exhibit in the case.
This shows the existence of a prior building, the proposal being for addition or partial reconstruction and not for total demolition.
If we go by the plan, it is not possible to conclude automatically that there is a new construction.
If we go by Brij Mohan 's evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed.
Indeed, his evidence is to the effect that the construction such as was made was beyond the 10 year period.
Unfortunately, it is not possible for the purchaser respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis a vis Explanation (b) or (c).
The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so, when exactly the completion took effect.
The municipal assessment record produced in the court merely state "increased assessment".
It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, 1040 was described as increased assessment.
The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony.
Even the recital in the rent deed that there was a new construction is 1965 66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction.
Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.
Viewed in this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal.
These basic issues have failed to receive any attention from the courts below.
A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case.
We do not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi).
It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted.
It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building, the former may form but a small part.
It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality.
Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted.
These records must also be available in the office of the local authority.
The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction.
This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated.
The result is that the eviction order has to be demolished.
It may still be open to the landlady respondent to make out his case by producing better municipal evidence in the light of what we have indicated.
We do not wish to deny the landlady this opportunity because the trial court has not approached the problem from the correct legal angle.
We set aside the judgment of the courts below and remit the case for hearing to the trial court.
The trial court 1041 will give an opportunity to both sides to adduce fresh evidence, documentary and oral, to make out the ground of exemption from the application of the Act.
Of course, when the entire evidence is before the court, the onus of proof will play a lesser role.
Before parting with the case, we wish to notice a submission made by Shri Goel that the landlady 's son was an unemployed engineer who needed the premises for personal requirement.
Even if the Act applies, it is open to the landlady to make out any of the grounds under the Act for eviction.
To avoid prolixity and delay of the proceedings, we permit the trial court to allow the landlady, if she applies in that behalf, to plead on an alternative basis, for eviction on any of the specified grounds under the Act.
The appeal is allowed and the case remitted to the Court of the Addl.
District Judge, Jhansi for fresh disposal in the light of the observations made above.
S.R. Appeal allowed.
| IN-Abs | The respondent landlady purchased shop No. 66 in the city of Jhansi in 1969 from one Brij Mohan (DW 2), occupied the first floor and allowed the appellant/tenant to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965.
In 1975, the respondent filed the ejection suit on the basis that the building was new, that the Act did not deter eviction of new constructions put up within ten years of the suit and so a decree was inevitable.
The appellant tenant resisted the claim on the plea that the building was constructed 50 years earlier.
The Trial Court negatived the defence and decreed eviction and this was upheld by the High Court.
Hence the appeal by special leave to this Court.
Allowing the appeal and remanding the matter to the Trial Court, the Court ^ HELD : 1.
In the normal course, no doubt the appeal must be dismissed as concluded by findings of fact.
To avoid possible public mischief through a new class of litigation for eviction by easy resort to the "new construction," expedient, interference under Article 136 of the Constitution is necessary.
[1037 A B] 2.Section 2(2) of the U.P. Act, uses the phrase "nothing in the rent control legislation shall apply to a building" during a period of ten years from the date on which its construction is completed.
In other words, in regard to all buildings the Act applies save where this exemption operates.
Therefore the landlord who seeks exemption must prove that exception.
The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit.
It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but it is for the landlady to make out that the construction has been completed within ten years of the suit.
This is sensible not merely because the statute expressly states so and the setting unnecessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant.
As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof.
Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.
[1038 C F] 3.
An analysis of Explanation 1 to section 2(2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by the local authority having jurisdiction.
[1038 G H] 1035 (2) Where a building has been assessed, it is the date on which the first assessment comes into effect.
Provided that if the date on which the completion was reported, to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.
[1039 A B] (3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction).
[1039 B C] Unfortunately, it is not possible for the purchaser respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis a vis Explanation (b) or (c).
The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so, when exactly the completion took effect.
It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted.
It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building the former may form but a small part.
It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality.
Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted.
These records must also be available in the office of the local authority.
The statute makes it clear that reliance upon the municipal records rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction.
This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated.
The result is that the eviction order has to be demolished.
[1039 F G, 1040 D G] In the instant case (i) the Municipal assessment record produced in the Court merely states "increased assessment".
It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment; (ii) the oral evidence is inconsequential being second hand testimony.
Even the recital in the rent deed that there was a new construction in 1965 66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction.
Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute; and (iii) the failure of the trial Court specifically to record when the building was completed and what was the extent of rebuilding, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal.
These basic issues have failed to receive any attention from the courts below.
A finding recorded on speculative basis is no finding and that is the fate of the holding.
[1039 G H, 1040 A D] 1036
|
N: Criminal Appeal No. 287 of 1979.
Appeal by special leave from the Judgment and Order dated 12 10 1967 of the Delhi High Court in Criminal Revision No. 117 of 1977.
WITH SPECIAL LEAVE PETITION (CRIMINAL) No. 3115 of 1979.
From the Judgment and Order dated 21 9 1979 of the Chief Judicial Magistrate Bhiwani in Case No. 1861 of 1978.
987 AND CRIMINAL MISCELLANEOUS PETITION No. 3890 of 1979.
An Application for direction under section 15 of the and Rule 3(b) of the Rules to regulate proceedings for contempt of Supreme Court, 1975.
Lal Narain Sinha Att.
Genl., M. K. Banerjee, Addl.
Miss A. Subhashini and R. B. Datar for the Petitioner in Crl.
Petition No. 3890/79.
U. D. Gour Adv.
Haryana and M. N. Shroff for the Respondent in Crl.
Petition No. 3890/1979.
P. H. Parekh, Hemant Sharma, Rajan Karanjawala and C. B. Singh for the Petitioner in SLP 3115/79.
M. C. Bhandare, Mrs. Sunanda Bhandare and T. Sridharan for Respondent No. 1 in SLP 3115/79.
A. N. Kharkhanis for Respondent No. 4 in SLP 3115/79.
U. D. Gour Adv.
Haryana and M. N. Shroff for Respondents 26 27 in SLP 3115/79.
Lal Narain Sinha, Att.
Genl., Miss A. Subhashini and R. B. Datar for Respondent No. 30 in SLP 3115/79.
Ram Panjwani, Raj Panjwani, Vijay Panjwani and section K. Bagga for the Petitioner in Crl.
A. 287/79.
Lal Narain Sinha Att.
and M. K. Banerjee Addl.
and Miss. A. Subhashini for Respondent No. 1 in Crl.
A. 297/79.
Ram Jethmalani, Mrs. Sushma Swaraj, A. K. Pande and Mrs. Hemanlika Wahi for Respondent No. 2 in Crl.
A 297/79.
V. M. Tarkunde, T. U. Mehta, P. H. Parekh and Miss Vineeta Caprihan for Respondent No. 5 in Crl.
A. No. 297 of 1979.
Ram Jethmalani and Ranjan Dwivedi for Respondent Nos. 2, 11, 12, and 13 in Crl.
A. 287/79.
Ram Jethmalani, A. G. Noorani, Miss Rani Jethmalani and Mrs. Kamini Jaiswal for Respondent Nos. 3, 15 and 16 in Crl.
A. 287/79.
Ram Jethmalani and A. G. Noorani and Miss Rani Jethmalani for Respondent No. 21 in Crl.
A. 287/79.
Sushil Chandra Bhatnagar in person (Respondent No. 14 in Crl.
A. 287/79).
988 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
A cocktail of law and politics, reason and extravagance is the only way we can describe the submissions made to us in these two cases.
Well known personalities are involved, in one case an Ex Central Minister, the present Governor of a State and some leading journalists, and in the other an ex Central Minister, and a host of Government officials.
Perhaps that was responsible for the passion and the tension which appeared to characterise and sometimes mar the arguments in the two cases.
We will first take up for consideration Criminal Appeal No. 287 of 1979.
In exercise of the powers conferred by section 196(1) (a) of the Code of Criminal Procedure 1973, and section 7 of the , the Government of India by its order dated September 6, 1976 accorded sanction for the prosecution of George Mathew Fernandes alias George Fernandes and 24 others for alleged offences under Ss.
121 A Indian Penal Code, 120 B Indian Penal Code read with Ss. 4, 5 and 6 of , and section 5(3)(b) and section 12 of the Indian .
The first paragraph of the order according sanction set out the subject of the conspiracy in the following words: "Whereas, it is alleged that after the issue of the proclamation of Emergency on 25th June, 1975 by the President of India in exercise of the powers conferred by clause (1) of Article 352 of the Constitution, George Mathew Fernandes alias George Fernandes, Chairman of Socialist Party of India and Chairman of All India Railwaymen 's Federation sought to arouse resistance against the said emergency by declaring that the said emergency had been "clamped" on the country by the "despotic rule" of Smt.
Indira Gandhi, Prime Minister of India and to entertain an idea that a conspiracy be hatched with the help of the persons of his confidence, to over awe the Government and in pursuance of the conspiracy do such acts which might result in the destruction of public property and vital installations in the country".
Thereafter the order set out the various acts committed by the several accused persons in pursuance of the objects of the conspiracy.
On September 24, 1976 the Deputy Superintendent of Police, Special Police Establishment Central Bureau of Investigation, Central Investi 989 gation Unit (A), New Delhi, filed a charge sheet in the Court of the Chief Metropolitan Magistrate, Delhi, against the said accused persons for the offences mentioned in the order sanctioning the prosecution.
Two of the accused persons had been tendered pardon.
They had, therefore, to be examined as witnesses in the Court of the Magistrate taking cognizance of the offences notwithstanding the fact that the case was exclusively triable by the Court of Session.
The evidence of the approvers was recorded on March 22, 1977 and the case was adjourned to March 26, 1977 for further proceedings.
At that stage, on March 26, 1977, N. section Mathur, Special Public Prosecutor filed an application under section 321 of the Criminal Procedure Code 1973, for permission to withdraw from the prosecution.
The application was as follows: "It is submitted on behalf of the State as under: 1.
That on 24 9 76 the Special Police Establishment after necessary investigation had filed a charge sheet in this Hon 'ble Court against Shri George Mathew Fernandes and 24 others for offences section 121 A IPC, 120B IPC r/w sections 4, 5 and 6 of the and Section 5(3) (b) and 12 of the Indian as well as the substantive offences.
That besides the accused who were sent up for trial two accused namely Shri Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Hon 'ble Court and were examined as approver section 306(4) Cr.
P.C. 3.
That out of 25 accused sent up for trial cited in the charge sheet, 2 accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Hon 'ble Court.
That in public interest and changed circumstances, the Central Government has desired to withdraw from the prosecutions of all the accused.
It is therefore prayed that this Hon 'ble Court may accord consent to withdraw from 26th March 1977.
Sd/ (N. section Mathur) Special Public Prosecutor for the State, New Delhi". 990 On the same day the learned Chief Metropolitan Magistrate, expressing the opinion that it was "expedient to accord consent to withdraw from the prosecution", granted his consent for withdrawal from the prosecution.
One Dr. Rajender Kumar Jain, and Advocate, filed a petition in the High Court of Delhi, under section 397 of the Criminal Procedure Code for revision of the order of the learned Chief Metropolitan Magistrate giving his consent to the Special Public Prosecutor to withdraw from the prosecution.
Several grounds were raised all of which were negatived by the High Court.
It was also held by the High Court that the applicant had no locus standi.
The Revision Petition was dismissed.
Dr. Rajender Kumar Jain has filed this appeal after obtaining special leave from this Court.
Shri Ram Panjwani, learned counsel for the appellant made the following submissions: (1) The offences for which the accused persons were to be tried were exclusively triable by a Court of Session and, therefore, the Committing Magistrate had no jurisdiction to give consent to the Public Prosecutor to withdraw from the prosecution, (2) The Public Prosecutor had abdicated his function and had filed the application at the behest of the Central Government without applying his mind.
(3) The Magistrate was in error in giving consent on the ground that it was expedient to do so.
Expedience was never for the judiciary.
(4) section N. Mathur who had filed the application for withdrawal from the prosecution was not the Public Prosecutor incharge of the case and the application was therefore, incompetent.
The submissions of Shri Ram Panjwani were controverted by Shri Ram Jethmalani and Shri V. M. Tarkunde, learned counsel for the respondents.
They also submitted that the offences with which the accused persons were charged were of a political nature and if the Government of the day thought that the Public Prosecutor should withdraw from the prosecution on grounds of public policy and advised the Public Prosecutor to do so, it could not be said that the Public Prosecutor abdicated his function merely because the proposal to withdraw from the prosecution emanated from the Government and he acted upon such proposal.
It was also submitted that so far as the fifth respondent was concerned no prosecution could be launched or continued against him under article 361 (2) as he was the Governor of a State.
Shri Panjwani in his reply submitted that political offences were unknown to the Municipal law of the land and that in the instant case the withdrawal from the prosecution was for a purely political purpose and not in the public interest at all.
It was said that the case was withdrawn in order that Shri George Fernandes could be appointed as a Minister in the Central Cabinet.
991 section 321 of the Criminal Procedure Code of 1973 which corresponds to section 494 of the Code of Criminal Procedure of 1898 is as follows: "Withdrawal from prosecution.
The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time 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, 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".
We have not extracted the proviso as it is not necessary for the purposes of these cases.
Under section 494 of the Criminal Procedure Code 1898, it was held by this Court in State of Bihar vs Ram Naresh Pandey, that the Court of the Committing Magistrate before whom a committal proceeding was pending was "the Court" within the meaning of section 494 which was competent to give its consent even in the case of offences exclusively triable by the Court of Session.
But, it was contended that after the enactment of the Criminal Procedure Code of 1973, the situation had changed since under the new Code the Court of the Committing Magistrate had no judicial function to perform in relation to the case which he was required to commit to the Court of Session.
The submission was that the Court contemplated by section 494 was the Court capable of pronouncing a judgment, ending the proceeding by an order of acquittal or discharge and, since the Court of the Committing Magistrate under the new Code was not invested with the power of acquitting or discharging the accused it was not the Court which could grant its consent to withdraw from the prosecution.
In the first place there is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provision of the Code can exercise the power under section 321 Criminal Procedure Code.
The power conferred by section 321 is itself a special power conferred on the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power 992 of the Court to acquit or discharge the accused under some other provision of the Code.
The power to discharge or acquit the accused under section 321 is a special power founded on section 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or try the accused.
Again, the expression 'judgment ' in the context may be understood to mean the judgment which may be ultimately pronounced if the case were to be committed to a Court of Session.
That was the view expressed in the State of Bihar vs Ram Naresh Pandey, (supra) where the Court observed: "In any view, even if 'judgment ' in this context is to be understood in a limited sense it does not follow that an application during preliminary enquiry which is necessarily prior to judgment in the trial is excluded".
In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure.
section 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session.
Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session.
If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code.
To that extent the Court of the Committing Magistrate does discharge a judicial function.
We therefore, over rule the first submission of Shri Ram Panjwani.
We do not agree with the view taken by the High Court of Andhra Pradesh in A. Venkataramana vs Mudem Sanjeeva Ragudu & Ors., that the court of the Committing Magistrate is not competent to give consent to the Public Prosecutor to withdraw from the prosecution.
The fourth submission of Shri Ram Panjwani does not appeal to us.
The notification dated June 17, 1966 of the Ministry of Home Affairs, Government of India, shows that the Senior Public Prosecutor, Public Prosecutor and Assistant Public Prosecutor of the Delhi Special Police Establishment attached to the Delhi office of the Special Police Establishment were appointed as Public Prosecutors under section 492(1) of the Criminal Procedure Code 1898 to conduct the cases of the Special Police Establishment before the Courts of Magistrates, Special Judges, and Sessions Judges, in the Union Territory of Delhi.
993 All notifications issued under the old Code are deemed to have been made under the corresponding provisions of the new Code.
It appears that Shri N. section Mathur is a Public Prosecutor attached to the Special Police Establishment at Delhi and has been functioning right through as Public Prosecutor in the Union Territory of Delhi.
The High Court has also pointed out on a scrutiny of the proceedings of the Magistrate that it was Shri N. section Mathur who was incharge of the case practically throughout.
The second and third submissions of Shri Panjwani may be considered together.
Decisions of this Court have made clear the functional dichotomy of the Public Prosecutor and the Court.
In the State of Bihar vs Ram Naresh Pandey, (supra) the Court while considering section 494 of the old Code explained: "The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. .
The function of the Court, therefore, in granting its consent may well be taken to be a judicial function.
It follows that in granting the consent the Court must exercise a judicial discretion.
But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method.
Otherwise the apparently wide language of section 494 would become considerably narrowed down in its application.
In understanding and applying the section two main features thereof have to be kept in mind.
The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially.
The judicial function. implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
In the context it is right to remember that the Public Prosecutor (though an executive Officer . ) is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with the fairly considered view and the Court is entitled to have the benefit of the fair exercise of his functions".
The Court also appreciated that in this Country the scheme of the administration of Criminal Justice places the prime responsibility 994 of prosecuting serious offences on the executive authorities.
The investigation, including collection of the requisite evidence, and the prosecution for the offence with reference to such evidence were the functions of the executive, and in that particular segment the power of the Magistrate was limited and intended only to prevent abuse.
In M. N. Sankaranarayanan Nair vs P. V. Balakrishnan & Ors.
the Court while reiterating decision that the Court granting permission for withdrawal should satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes, observed that the wide and general powers conferred on the Public Prosecutor to withdraw from the prosecution have to be exercised by him "in furtherance of, rather than as a hindrance to the object of the law" and that the Court while considering the request to grant permission should not do so as "a necessary formality the grant of it for the mere asking".
In State of Orissa vs Chandrika Mohapatra & Ors.
the Court said: "We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution".
In Balwant Singh & Ors.
vs State of Bihar, the independent role of the Public Prosecutor in making an application for withdrawal from a prosecution was emphasised.
It was pointed out that statutory responsibility for deciding upon withdrawal vested in the Public Prosecutor and the sole consideration which should guide the Public Prosecutor was the larger factor of the administration of justice and neither political favour nor party pressure or the like.
Nor should he allow himself to be dictated to by his administrative superiors to withdraw from the prosecution.
The Court also indicated some instance where withdrawal from prosecution might be resorted to independently of the merits of the case: "Of course, the interests of public justice being the paramount consideration they may transcend and overflow 995 the legal justice of the particular litigation.
For instance, communal feuds which may have been amicably settled should not re erupt on account of one or two prosecutions pending.
Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution.
Other instance also may be given".
In Subhash Chander vs The State (Chandigarh Admn.) & Ors.
the Court once again emphasised the independence of the Public Prosecutor in the matter of seeking to withdraw from the prosecution.
It was observed "Any authority who coerces or orders or pressures a functionary like the Public Prosecutor, in the exclusive province of his discretionary powers, violates the rule of law, and any Public Prosecutor who bends before such command betrays the authority of his office".
However, it was indicated: "Maybe, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the Public Prosecutor to consider whether the case or cases may not be withdrawn.
Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of Government which, in the last analysis, has to maintain public order and promote public justice.
But the decision to withdraw must be his.
A reference was made to some considerations which may justify withdrawal from prosecution.
It was said: "The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in a court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister.
The concurrence of the 996 court is necessary.
The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal.
For the court should not be misused to continue a case conclusively proved to be a counterfeit.
This statement of the law is not exhaustive but is enough for the present purpose and indeed, is well grounded on precedents".
Thus, from the precedents of this Court; we gather, 1.
Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
The withdrawal from the prosecution is an executive function of the Public Prosecutor.
The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5.
The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace.
The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall enterprise.
The Public Prosecutor is an officer of the Court and responsible to the Court.
The Court performs a supervisory function in granting its consent to the withdrawal.
The Court 's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations.
The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the 997 reasons which prompt the Public Prosecutor to withdraw from the prosecution.
The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice '.
Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of section 361 Criminal Procedure Code.
The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.
We have referred to the precedents of this Court where it has been said that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution.
In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc.
Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm.
To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter productive.
An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched.
In such matters who but the Government, can and should decide in the first instance, whether it should be baneful or beneficial to launch or continue prosecutions.
If the Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task ? Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal.
Rightly too, because the independence of the judiciary so requires it, as we have already mentioned.
Now, the Public Prosecutor is an Officer of the Court.
He sets the criminal law in motion in the Court.
He conducts the prosecution in the Court for the people.
So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution.
But, where such large and sensitive issues of public policy are involved, he 998 must, if he is right minded, seek advice and guidance from the policy makers.
His sources of information and resources are of a very limited nature unlike those of the policy makers.
If the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentus public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind.
Nor can there be any quibbling over words.
If ill informed but well meaning bureaucrats choose to use expressions like "the Public Prosecutor is directed" or "the Public Prosecutor is instructed", the Court will not on that ground alone stultify the larger issue of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution.
What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy.
The Court, in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw, from the prosecution for good and relevant reasons.
We, however, issue a note of warning.
The bureaucrat too should be careful not to use peremptory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter.
He must remember that in addressing the Public Prosecutor he is addressing an Officer of the Court and there should be no suspicion of unwholesome pressure on the Public Prosecutor.
Any suspicion of such pressure on the Public Prosecutor may lead the Court to withhold its consent.
We may now consider Shri Ram Panjwani 's argument that the Criminal law of India does not recognise 'political offences ' and so there can not be withdrawal from a prosecution on the ground that the offences involved are 'political offences '.
It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offences of a political nature, as a category of offences.
They cannot, in the ordinary course of things.
That does not mean that offences of a political character are unknown to jurisprudence or that judges must exhibit such a naivette as to feign ignorance about them.
Offences of a political character are well known in International Law and the Law of Extradition.
The Indian Extradition Act also refers to offences of a political character.
For our present purpose it is really unnecessary to enter into a discussion as to what are political offences except in a sketchy way.
It is sufficient to say that politics 999 are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy.
Mahatma Gandhi, the father of the Nation, was convicted and jailed for offences against the Municipal laws; so was his spiritual son and the first Prime Minister of our country; so was the present Prime Minister and so were the first President and the present President of India.
No one would hesitate to say that the offences of which they were convicted were political.
Even as we are writing this judgment we read in the morning 's newspapers that King Birendra of Nepal has declared a "general amnesty to all Nepalese accused of political changes".
The expression 'political offence ' is thus commonly used and understood though perhaps 'political offence ' may escape easy identification.
Earlier in the judgment we set out the alleged object of the conspiracy as recited in the order sanctioning the prosecution.
It was to overawe the Government by committing various acts of destruction of public property and vital installations and the motive attributed was that the accused wanted to change the Government led by Shrimati Gandhi.
One need not agree with the ends or the means genuine revolutions have never yet been made by acts of senseless terrorism or wanton destruction, putting innocent lives and public property in jeopardy but, it is clear that the very order sanctioning the prosecution imputes to the offences alleged to have been committed by the accused the character of 'political offences '.
To say that an offence is of a political character is not to absolve the offender of the offence.
But the question is, is it a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution ? We mentioned earlier that the Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice and that such broad ends of public justice may well include appropriate social, economic and political purposes.
It is now a matter of history that the motivating force of the party which was formed to fight the elections in 1977 was the same as the motivating force of the criminal conspiracy as alleged in the order sanctioning the prosecution; only the means were different.
The party which came to power as a result of 1977 elections chose to interpret the result of the elections as a mandate of the people against the politics and the policy of the party led by Shrimati Gandhi.
Subsequent events leading upto the 1980 elections which reversed the result of the 1977 elections may cast a doubt whether such interpretation was correct; only history can tell.
But, if the Government of the day 1000 interpreted the result of the 1977 elections as a mandate of the people and on the basis of that interpretation the Government advised the Public Prosecutor to withdraw from the prosecution, one cannot say that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can one say that the Magistrate failed to exercise the supervisory function vested in him in giving his consent.
We are unable to say that the High Court misdirected itself in affirming the order of the Magistrate.
We also notice that the learned Attorney General who disassociated himself from the legal submissions made by the parties did not withdraw the counter affidavit filed earlier on behalf of the State.
No fresh counter affidavit disclosing a change of attitude on the part of the new Government which took office in January this year was filed.
Apparently the new Government did not do so as a gesture of grace and goodwill and to prevent rancor and bitterness.
That we appreciate, Criminal Appeal No. 287 of 1979 is therefore, dismissed.
Special Leave Petition (Criminal) No. 3115 of 1979 has been filed by one Manohar Lal, against the order of the Chief Judicial Magistrate, Bhiwani, permitting the Public Prosecutor to withdraw from the prosecution in case No. 186 1 filed by the State against Chaudhury Bansi Lal, ex Defence Minister, his son Surinder Singh, ex M.L.A., R. section Verma, exhibit Deputy Commissioner, Bhiwani and several other officials and non officials for a host of offences.
The applicant has come straight to this Court under article 136 of the Constitution without going to the High Court in the first instance.
On that ground alone the petition is liable to be dismissed as we do not ordinarily entertain such petitions.
We refrain from doing so as the matter has been fully argued before us.
On July 13, 1977, Manohar Lal, laid information with the Station House Officer, Police Station, Bhiwani City, against the several accused persons.
The charge sheet was filed by the Bhiwani Police on July 21, 1978 on the basis of information laid with them by Manohar Lal.
The gravamen of the allegation against the accused persons was that Chaudhury Bansi Lal was annoyed with Manohar Lal and his sons as they failed to transfer two plots of land to his son and a relative.
Chaudhury Bansi Lal, therefore, induced the Bhiwani Town Improvement Trust to include in its successive schemes land belonging to Manohar Lal and his sons, in Bhiwani Town, on which stood some buildings including two temples.
As Manohar Lal apprehended that his buildings might be demolished, he filed a Writ Petition in the Supreme Court and obtained an order of stay of demolition.
However, the stay 1001 was vacated on December 1, 1976 and on the same day, on the instructions, by telephone or wireless, of Chaudhury Bansi Lal, R. section Verma, the Deputy Commissioner instructed his officers to demolish the buildings standing on the land.
The Land Acquisition Collector made his Award of compensation and deposited the amount in a bank.
All this was done in the course of a few hours and the demolition of the building was started forthwith and completed by December 4, 1976.
The chargesheet, as we said, was filed on July 21, 1978.
Chaudhury Bansi Lal filed a petition in this Court for transfer of the case to a Court outside the States of Punjab and Haryana.
This Court issued notice on the petition for transfer and granted stay of further proceedings in the case before the Chief Judicial Magistrate, Bhiwani.
The order of stay continued.
On September 20, 1979 on the basis of a letter addressed to him by the District Magistrate, the Public Prosecutor filed an application before the Chief Judicial Magistrate for permission to withdraw from the prosecution.
On September 21, 1979 the Court granted its consent to the withdrawal of the Public Prosecutor from the prosecution.
It is this order that is questioned in the Special Leave Petition.
Shri Parekh, learned counsel for the petitioner urged that the public Prosecutor filed the application at the behest of Shri Bhajan Lal, the Chief Minister of Haryana and that he never applied his mind to the facts of the case.
According to Shri Parekh Shri Bhajan Lal ordered the withdrawal of the public Prosecutor from the prosecution because his Ministry would not survive without the help of Chaudhury Bansi Lal.
A motion of no confidence was imminent against Shri Bhajan Lal and was to be considered on September 24, 1979; so he ordered withdrawal of the cases against Chaudhury Bansi Lal on September 20, 1979, in order to secure the support of his group.
It was said that the withdrawal from the prosecution was not based on any ground of public policy.
Shri Parekh, drew our attention to the wireless message which was sent by the Government to the District Magistrate, Bhiwani informing him that the Government had decided to withdraw the four cases mentioned in the message, pending in the Court of Bhiwani and that four cases should be withdrawn immediately from the concerned Courts and the Government informed accordingly.
The District Magistrate Bhiwani forwarded a copy of the wireless message to the District Attorney, Bhiwani for necessary action directing him to withdraw the four cases from the concerned courts as desired by the Government and to report compliance to this office.
The District Attorney there after filed an application for permission to withdraw from the prosecution.
On September 21, 1979, he made a statement before the Chief 1002 Judicial Magistrate that he had made the application on the orders of District Magistrate, Bhiwani and that the reasons were given in the application.
In answer it was contended by the advocate General of Haryana who appeared for the State of Haryana and M. C. Bhandare who appeared for Chaudhury Bansi Lal, that Surinder Singh, son of Chaudhury Bansi Lal had petitioned to the Chief Minister of Haryana alleging that he, his father and their associates were being harassed by numerous cases being filed against them without any justification.
He requested the Chief Minister to stop needless harassment.
The Minister constituted a Sub Committee consisting of himself, the Finance Minister and the Irrigation and Power Minister to look into the question.
The Sub Committee examined the cases in detail and decided that four out of twenty five cases filed against Chaudhury Bansi Lal should be withdrawn as the evidence available was meagre and, in particular, in the case based on Manohar Lal 's information the complainant had also been suitably and profitably compensated.
The decision of the Government was communicated to the District Magistrate who in turn asked the Public prosecutor to move the Court for consent to withdraw from the prosecution.
The Chief Minister and his colleagues on the Sub Committee have filed before us affidavits regarding the constitution of the Sub Committee and the decision to withdraw from the prosecution.
They have also denied the allegation that the case had been withdrawn with a view to gain the support of Chaudhury Bansi Lal against a no confidence motion which the petitioner alleged was to be moved against the Chief Minister.
It was pointed out in the affidavits that no no confidence motion was ever tabled against Chief Minister Bhajan Lal and that on the very figures given by the petitioner regarding the party position in the Haryana Assembly the support of Chaudhary Bansi Lal and his group would not matter.
It was also brought out in the counter affidavits filed on behalf of some of the respondents that the petitioner had himself admitted in the agreement which he had entered into with the Bhiwani Town Planning Trust on May 6, 1977, that his land and plots had been duly acquired under various development schemes, that he desired to withdraw all the petitions etc.
filed by him in various courts and that he would not claim any damages against the Trust.
The Town Planning Trust agreed to release the lands to him with a view to enable him to reconstruct the buildings.
It was expressly recited in the agreement that the Bhiwani Town Improvement Trust agreed to the terms of the agreement as it was thought to be "in the best interest of the parties concerned as well as in the good of the residents of the Bhiwani Town to settle the matter amicably and mutually".
The Government of Haryana also.
it was so recited in the agreement, had accorded its approval to the 1003 terms of the settlement.
It has been mentioned in the counter affidavits that the agreement between Manohar Lal and the Bhiwani Town Improvement Trust in which Manohar Lal admitted the title of the Bhiwani Town Improvement Trust to the land and buildings was never placed before the Jaganmohan Reddy Commission.
In fact it is one of the complaints of Chaudhury Bansi Lal that those that were in charge of producing evidence before the Jaganmohan Reddy Commission took care to see that nothing in his favour was placed before the Commission.
Chaudhury Bansi Lal filed a counter affidavit in which he has stated that the allegation that his son and relative wanted to purchase the land of Manohar Lal was an allegation which Manohar Lal never made in any of the objections filed by him against the schemes proposed by the Town Improvement Trust.
It has also been pointed out that in the several writ Petitions filed by Manohar Lal against the schemes no allegations of malafides were made against Bansi Lal.
In one Writ Petition an attempt was made to introduce such an allegation by way of amendment but the High Court held that the allegation was a mere 'after thought '.
The District Attorney has filed a counter affidavit in which he has stated that the evidence in the case was of a meagre nature and he was of the view that it might not be possible to obtain a conviction in the case.
He had brought it to the notice of the District Magistrate earlier but as important personalities were involved it was not thought proper and prudent to make an application for withdrawal from the prosecution.
The occurrence which was the subject matter of the case was said to have taken place at 10 p.m.
A large number of accused had been named.
There were reasons to believe that most of the names of the accused were included on mere suspicion.
In fact two advocates who had been implicated as accused led unimpeachable evidence that they were not in Bhiwani at all that night.
After he received advice from the District Magistrate he was convinced that an application should be filed for withdrawal from the prosecution and so he filed the same.
Sri Bhaskar Chatterji, the District Magistrate has also filed an affidavit in which he has stated that the District Attorney had informed him that some of the cases filed against Chaudhury Bansi Lal and his family members were weak in nature.
He did not however, take any action at that time as important personalities were involved and as there were no directions from the Government in that regard.
Later he received a wireless message which he forwarded to the District Attorney for action, Shri Kataria Secretary to Government of Haryana, Department of Administration of Justice has also tiled a counter affidavit in which he has mentioned the detailed of the proceedings of the Cabinet Sub Committee which took the decision to withdraw the case on September 20, 1979.
1004 On a perusal of the allegations and counter allegations, the facts which emerge from the record as beyond dispute are: (1) The land of Manohar Lal and his sons on which there were certain buildings was included in the Bhiwani Town Improvement Scheme.
(2) The allegation that Bansilal 's son and relative wanted to purchase the land originally was not made by Manohar Lal in the original objections and writ Petitions filed by Manohar Lal.
(3) The Supreme Court first granted stay of the demolition of buildings but later vacated the stay on December 1, 1976.
(4) As soon as stay was vacated, without any loss of time, the demolition work started and completed.
Dynamite and bull dozers were used and the buildings were demolished.
(5) On May 6, 1977, Manohar Lal and his sons entered into an agreement with the Bhiwani Town Improvement Trust agreeing to withdraw all the cases filed by them against the improvement Trust and accepting the title of the trust to the land acquired under the Town Improvement schemes.
In return the Improvement Trust agreed to release the lands to Manohar Lal and his sons for the purpose of reconstructing the buildings and to receive the compensation assessed for the demolished buildings.
It was recited in the agreement that the Town Improvement Trust had agreed to this course as it was thought to be "in the best interest of the parties concerned as well as in the good of the residents of the Bhiwani Town".
(6) On July 13, 1977 Manohar Lal lodged a First Information Report with the Police.
(7) On July 21, 1978 the police filed a charge sheet in the Court of the Chief Judicial Magistrate, Bhiwani.
(8) The District Attorney had informed the District Magistrate that the evidence was of a weak nature as most of the accused appeared to have been implicated on mere suspicion and some of the accused were not even present in the town on the night of the occurrence.
(9) Surinder Singh, son of Bansi Lal made a representation to the Government that they were being harassed by innumerable cases being filed against them.
1005 (10) On September 20, 1979, the Cabinet Sub Committee decided that four out of twenty five cases filed against Bansi Lal and others should be withdrawn.
A wireless message was sent by the Government to the District Magistrate asking him to withdraw the four cases and to report compliance.
The letter was forwarded to the District Attorney.
The District Attorney filed an application for withdrawal from the prosecution on the same day.
(11) Neither before nor after the Cabinet Sub Committee took its decision was there a no confidence motion tabled against Chief Minister Bhajanlal.
(12) On September 21, 1979, the Court granted its consent to the withdrawal of the public Prosecutor (the District Attorney) from the case.
It is on this material we have to determine whether the withdrawal from the prosecution could be said to be malafide, that is for irrelevant or extraneous reasons.
We are not satisfied that there is sufficient basis to come to such a conclusion particularly in view of two outstanding circumstances namely that only four out of twenty five cases have been withdrawn and the complainant himself had acknowledged the title of the Town Improvement Trust to the lands and the Trust had not only returned the lands to the complainant but also paid him compensation for the demolished buildings in the interest of all parties in Bhiwani town.
We, therefore, dismiss the Special Leave Petition.
Before bidding farewell to these cases it may be appropriate for us to say that Criminal justice is not a plaything and a Criminal Court is not a play ground for politicking.
Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution.
If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost.
So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent.
While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases.
But under no circumstances should be allow himself to become anyone 's stooge.
No arguments were advanced in Criminal Miscellaneous Petition No. 3890 of 1979.
It is, therefore, dismissed.
S.R. Appeal and Petitions dismissed.
| IN-Abs | Section 321 of the Code of Criminal Procedure, 1973 which corresponds to section 494 of the 1898 code provides for the withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor incharge of a case with the consent of the Court at any time before the judgment is pronounced.
In Criminal Appeal No. 287/79, the case instituted against George Mathew Fernandes & others on 24 9 76 was allowed to be withdrawn on March 26, 1977 on an application under section 321 of the Criminal Procedure Code, 1973 made by N. section Mathur Special Public Prosecutor.
The learned Chief Metropolitan Magistrate expressed his opinion that "it was expedient to accord consent to withdraw from the prosecution".
A revision petition under section 397 of the Criminal Procedure Code, 1973 challenging the said order granting permission to withdraw filed by the appellant an advocate in the High Court failed.
The High Court also held that the appellant had no locus standi.
Special Leave Petition (Crl.) No. 3115/79 was filed by one Manohar Lal directly under Article 136 of the Constitution against the order of the Chief Judicial Magistrate, Bhiwani, permitting the public prosecutor to withdraw from the prosecution in case No. 186 1 filed by the State against Chaudhury Bansilal Ex Defence Minister, his son Surinder Singh, exhibit M.L.A., R. section Verma, exhibit Deputy Commissioner, Bhiwani and several others officials and non officials for a host of offences.
In Crl.
Appeal No. 287/79, the Contentions were: (a) The offence for which the accused persons were to be tried were exclusively triable by a Court of Session, and therefore, the Committing Magistrate had no jurisdiction to give consent to the Public Prosecutor to withdraw from the prosecutions; (b) The Public Prosecutor had abdicated his function and had filed the application at the behest of the Central Government without applying his mind; (c) The Magistrate was in error in giving consent on the ground that it was expedient to do so.
Expedience was never for the judiciary; (d) section N. Mathur who had filed the application for withdrawal from the prosecution was not the Public Prosecutor incharge of the case and the application was therefore incompetent.
In the special leave (Crl.) No. 3115/79, it was contended: (i) the Public Prosecutor filed the application at the behest of Sri Bhajan Lal, the Chief Minister of Haryana and that he never applied his mind to the facts of the case; (ii) Sri Bhajan Lal ordered the withdrawal of the Public Prosecutor from the prosecution because his ministry would not survive without the help of 983 Chaudhuri Bansi Lal and (iii) the withdrawal was not based on any public policy.
Dismissing the appeal by special leave and the special leave petition, the Court ^ HELD: 1.
The contention that under the new code of Criminal Procedure, 1973, the Court of Committing Magistrate had no judicial function to perform in relation to the case which he was required to commit to the Court of Session as was the position under section 494 of the 1898, and since the Court of the Committing Magistrate under the new code was not invested with the power of acquitting or discharging the accused, it was not the Court which could grant its consent to withdraw from the prosecution is erroneous.
In the first place there is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provision of the Code can exercise the power under section 321 Criminal Procedure Code.
The power conferred by section 321 is itself a special power conferred on the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power of the Court to acquit or discharge the accused under some other provision of the Code.
The power to discharge or acquit the accused under section 321 is a special power founded on section 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or try the accused.
Again, the expression 'judgment ' in the context may be understood to mean the judgment which may be ultimately pronounced if the case were to be committed to a Court of Session.
In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure.
section 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session.
Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session.
If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code.
To that extent the Court of the Committing Magistrate does discharge a judicial function.
[991 E H, 992 A E] State of Bihar vs Ram Naresh Pandey.
followed.
A. Venkataramana vs Mudem Sanjeeva Ragudu and Ors.
(1976) Andhra Law Times Reports 317; over ruled.
The notification dated June 17, 1966 of the Ministry of Home Affairs, Government of India, shows that the Senior Public Prosecutor, Public Prosecutor and Assistant Public Prosecutor of the Delhi Special Police Establishment attached to the Delhi office of the Special Police Establishment were appointed as Public Prosecutors under section 492(1) of the Criminal Procedure Code 1898 to conduct the cases of the Special Police Establishment before the Courts of Magistrates, Special Judges, and Sessions Judges, in the Union Territory of Delhi.
All notifications issued under the old Code are deemed to have been made under the corresponding provisions of the new Code.
Sri section N. Mathur is a Public Prosecutor attached to the Special Police Establishment at Delhi and has been functioning right through as Public Prosecutor in the Union Territory of Delhi and it was he who was in charge of the case practically throughout.
[992 G H, 993 A B] 984 3.
In this country the scheme of the administration of Criminal Justice places the prime responsibility of prosecuting serious offences on the executive authorities.
The investigation, including collection of the requisite evidence, and the prosecution for the offence with reference to such evidence were the functions of the executive, and in that particular segment the power of the Magistrate was limited and intended only to prevent abuse.
[993 H, 994 A B] From the precedents of this Court, the following propositions emerge: (i) Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
(ii) The withdrawal from the prosecution is an executive function of the Public Prosecutor.
(iii) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to some one else.
(iv) The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
(v) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further broad ends of public justice, public order and peace.
The broad ends of public justice will certainly include appropriate social, economic and, political purposes Sans Tammany Hall enterprises.
(vi) The Public Prosecutor is an officer of the Court and responsible to the Court.
(vii) The Court performs a supervisory function in granting its consent to the withdrawal.
(viii) The Court 's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations.
The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
[996 B G] It shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution.
The Court has a responsibility and a stake in the administration of criminal justice and so has the public Prosecutor, its 'Minister of Justice '.
Both have a duty to protect the administration of Criminal Justice against possible abuse or misuse by the Executive by resort to the provisions of section 361 Criminal Procedure Code.
The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.
[996 H, 997 A B] State of Bihar vs Ram Naresh Pandey, ; M. N. Sankaranarayanan Nair vs P. V. Balakrishnan and Ors. ; ; State of Orissa vs Chandrika Mahapatra and Ors., ; at 340; Balwant Singh and Ors.
vs State of Bihar, @ 605; Subhash Chander vs The State (Chandigarh Admn.) and Ors., ; ; referred to.
Paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution.
In the past, it has been found ex 985 pedient and necessary in the public interest that the Public Prosecutor should withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc.
Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm.
To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter productive.
An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched.
In such matters, it is only the Government and none else can and should decide in the first instance whether it should be baneful or beneficial to launch or continue prosecutions.
[997 B F] 5.
Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal.
Rightly too, because the independence of the judiciary so requires it.
The Public Prosecutor is an officer of the Court.
He conducts the prosecution in the Court for the people.
So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution.
But, where such large and sensitive issues of public policy are involved, he must, if he is right minded, seek advice and guidance from the policy maker.
If the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentus public policy are involved, and if they advice the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind.
Nor can there be any quibbling over words.
If ill informed but well meaning bureaucrats choose to use expressions like "the Public Prosecutor is directed" or "the Public Prosecutor is instructed", the Court will not on that ground alone stultify the larger issue of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution.
What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy.
The Court, in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons.
[997 G H, 998 A D] However, the bureaucrat too should be careful not to use peremtory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter.
He must remember that in addressing the Public Prosecutor he is addressing an Officer of the Court and there should be no suspicion of unwholesome pressure on the Public Prosecutor.
Any suspicion of such pressure on the Public Prosecutor may lead the Court to withhold its consent.
[998 D E] 6.
It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offences of a political nature, as a category of offences; they cannot, in the ordinary course of things.
That does not mean the offences of a political character are unknown to jurisprudence or that judges must 986 exhibit such naivette as to feign ignorance about them.
In fact International Law recognises offences of a political character and the Indian Extradition Act specifically refers to them.
[998 F H] Briefly, politics are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy.
The expression "political offence" is thus commonly used and understood though perhaps "political offence" may escape easy identification.
[998 H, 999 A, C] To say that an offence is of a political character is not to absolve, the offenders of the offence.
But it will be a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution.
The Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice and such broad ends of public justice may well include appropriate social, economic and political purposes.
[999 E F] If the Government of the day interpreted the result of the elections, as in the appeal, as a mandate of the people and on the basis of that interpretation, the Government advised the Public Prosecutor to withdraw from the prosecution, it cannot be said that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can it be said that the Magistrate failed to exercise the supervisory function vested in him in giving his consent.
[999 H, 1000 A B] Observation: Criminal justice is not a plaything and Criminal Court is not a play ground for politicking.
Political fervour should not convert the prosecution into persecution nor political favour reward wrongdoer by withdrawal from prosecution.
If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost.
Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent.
While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases.
But under no circumstances should he allow himself to become anyone 's stooge.
[1005 E G]
|
Special Leave Petition (Civil) Nos.
9945, 10550, 8857 of 1979.
From the Judgments and Orders dated 23 7 1979, 25 9 1979 and 18 7 1979 of the Allahabad High Court in Civil Revision Nos.
3832/ 78, 2042/79 & 264/76.
Manoj Swarup for the Petitioner in SLP Nos.
9945 & 8857.
Pramod Swarup for the Petitioners in SLP No. 10550.
N. N. Sharma for the Respondent No. 1 in SLP No. 9945.
A. K. Srivastava for Respondents Nos.
1 2 in SLP No. 10550.
Mohan Behari Lal for Respondent Nos. 1 in SLP No. 8857.
The Order of the Court was delivered by KRISHNA IYER, J.
These petitions for special leave deserve to be dismissed because the Full Bench judgment of the Allahabad High Court which is challenged in all the three has been rightly decided in our view.
Even so, a speaking order has become necessary because, as rightly pointed out by counsel, the earlier decision of this Court in Vishesh Kumar vs Shanti Prasad does not specifically cover the precise point that has been raised before us by counsel for the petitioner.
We are concerned with the ambit and impact of section 3 of the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978 (for short, the Act), which forbids a revision under section 115 of the Civil Procedure Code (acronymically, the C.P.C.) to the High Court from a judgment or order in appeal by the District Court where the suit out of which the case arises is not one of the value of Rs. 20,000/ and above.
975 We have, in Vishesh Kumar vs Shanti Prasad (supra) considered the scheme, setting and purpose of the U.P. Amendment to the Civil Procedure Code bearing on the revisory power of the High Court under section 115 C.P.C.
We may quote: A schematic analysis of the judicial hierarchy within a State indicates that the High Court, as the apex court in the hierarchy, has been entrusted, not only with the supreme appellate power exercised within the State but also, by virtue of section 115, the power to remove, in order to prevent a miscarriage of justice, any jurisdictional error committed by a subordinate court in those cases where the error cannot be corrected by resort to its appellate jurisdiction.
The two salient features of revisional jurisdiction under section 115 are, on the one hand, the closely limited grounds on which the court is permitted to interfere and on the other, the wide expanse of discretion available to the court, when it decides to interfere, in making an appropriate order.
The intent is that so serious an error as one of jurisdiction, if committed by a subordinate court, should not remain uncorrected, and should be removed and record healed of the infirmity by an order shaped to reinstate the proceeding within the proper jurisdictional confines of the subordinate court.
xx xx xx From its inception there was increasing resort to the revisional jurisdiction of the High Court under section 115.
Over the years the volume of litigation reached an insupportable point in the pending docket of the Court.
To alleviate the burden, a pattern of decentralisation of revisional power was adopted and section 115 was amended by successive State amendments, each attempting to close the gap left by its predecessors.
Many times, amendments were made by the U.P. Legislature to effectuate its determined purpose of dichotomising and decentralising the revisional jurisdiction, a goal which is laudable and which other States may well regard as a paradigm.
The crucial provision, section 3 of the Act, reads thus: 115.
The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before Aug. 1, 1978 and the District Court in any 976 other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity; the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit.
Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section.
Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where, (i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(Explanation) In this section, the expression 'any case which has been decided ' includes any other deciding an issue in the course of a suit or other proceeding.
The bulk of the cases we disposed of in the earlier round turned on the tenability of a revision upon a revision a product of legal ingenuity by which the attempt of the legislature to save the little litigant from the logistics of justice from the distant High Court by confining lesser revisions to the District Court was metamorphosed into a dual revision, one at the District Court level and the other at the High Court against the District Court 's order in revision.
Value free legalistics can be counter productive acrobatics ! When that happened the Legislature stepped in again and again and we are concerned with the import and impact of section 3 of the Act vis a vis 977 appellate orders of District Courts where the suits from which they stem are less than Rs. 20,000/ in value.
A brief analysis of that provision is contained in Vishesh Kumar (supra): "4.
From 1st August, 1978: Finally, section 3, Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978, which was deemed to have come into force on 1st August, 1978, amended s.115 again and restored the bifurcation of revisional jurisdiction between the High Court and the District Court.
Accordingly now: (i) The High Court alone had jurisdiction under s.115 in cases arising out of original suits or other proceedings of the value of Rs. 20,000 and above, including such suits or other proceedings instituted before 1st August, 1978; (ii) The District Court alone has jurisdiction under s.115 in any other case, including a case arising out of an original suits or other proceedings instituted before 1st August, 1978; (iii)The High Court has jurisdiction under s.115 in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court; (iv) A revision proceeding pending immediately before 1st August, 1978 of the nature in which a District Court could exercise revisional power under s.115 as amended by the Amendment Act, 1978 if pending; (a) in the District Court, would be decided by that court as if the Amendment Act of 1978 were in force at all material times; (b) in the High Court, would be decided by the High Court as if the Amendment Act of 1978 had not come into force.
The provision now before us is slightly different although the purpose and the result are the same.
The scheme is clear.
The High Court has revisory power only in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above including such suits or other proceedings instituted before Aug.1, 1978.
The entire residuary area belongs to the District Court.
An 978 other test of revisional jurisdiction for the High Court is to see whether the first proviso applies: Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section.
The High Court, in the last Full Bench decision traced the story of the race between the legislature and judicial interpretation and summed up the result rightly thus : "The High Court was confined to cases arising out of original suits or other proceedings of the value of Rupees 20,000/ or above, including such suits or other proceedings instituted before 1st August, 1978.
The jurisdiction of the District Court was in respect of any other case including a case arising out of an appeal suit or other proceeding instituted before such date.
The legislature has continued to use the phrase "cases arising out of original suits".
The interpretation placed upon this phrase by the Full Bench in Har Prasad Singh 's case (AIR 1973 All. 390) will apply.
The revisional jurisdiction would hence not extend to cases arising out of the disposal of appeals or revisions by the District Court.
The proviso is also in the same terms as the proviso added in 1973 namely, it uses the phrase cases arising out of original suits or other proceedings".
As already seen, it will not cover cases arising out of disposal of appeals or revisions.
The words "or other proceedings" in the phrase "cases arising out of original suits or other proceedings" refer to proceedings of final nature.
These words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings.
This phrase cannot include decisions of appeals or revisions, because then the legislature will be deemed to have contradicted itself.
The words "or other proceedings" have to be read ejusdem generis with the words "original suits".
They will not include appeals or revisions.
The phrase "in any other case" used with reference to the District Court will refer to cases arising out of original 979 suits of the value of less than Rs. 20,000/ and also cases arising out of other proceedings of an original nature of a valuation below Rs. 20,000/ ".
Ordinarily when a State legislation is being interpreted the meaning received by it in the High Court as the settled intent should rarely be disturbed by this Court unless the error is so egregious, the impact goes beyond the State or like legislation elsewhere and decisions of the High Courts thereon may lead to confusion and uncertainty.
Here no such consideration arises and the reasoning of the High Court strikes us as sound.
The residuary power is with the District Court.
The High Court has no revisional power under section 115 unless the case arises out of an original suit or other proceeding i.e. other original proceeding decided by the District Court or where the case arises from a suit of and above Rs. 20,000/ in value.
If the District Court has decided, not in its original jurisdiction, then the case, be it a revisional or appellate order, is not amenable to the High Court 's revisional jurisdiction.
Of course, if the case arises out of suits or other proceeding of the value of Rs. 20,000/ and above, the High Court has revisory power.
All other cases fall outside and become final at the District Court level.
After all, our District Courts are easier of access for litigants, and the High Courts, especially in large States like Uttar Pradesh, are 'untouchable ' and 'unapproachable ' for agrestic populations and even urban middle classes.
Nor is there ground to distrust the District Judges.
A hierarchy of courts built upon a heritage of disbelief in inferiors has an imperial flavour.
If we suspect a Munsif and put a District Judge over him for every thing he does, if we distrust a District Judge and vest the High Court with pervasive supervision, if we be skeptical about the High Courts and watch meticulously over all their orders, the System will break down as its morale will crack up.
A psychic communicable disease of suspicion, skepticism and servility cannot make for the health of the judicial system.
If the Supreme Court has a super Supreme Court above it, who knows how many of its verdicts will survive, judging by the frequency with which it differs from itself.
Schematically, we are satisfied, that decisions of District Courts rendered in appeal or revision are beyond revision by the High Court, if the suit is of less than Rs. 20,000/ .
But an exception has been engrafted by the first proviso to s.3 to the effect that where an origi 980 nal decision has been made by a District Court the High Court 's appellate or revisional power will come into play.
That is at as it should be, for one appeal or revision is almost universal.
But otherwise, the District Court 's decision is immune to revisional probe by the High Court.
Lexically, there is no escape from section 3 because the whole residue, except where the High Court has been expressly vested with revisory power, is beyond reach under section 115 C.P.C. Precedentially, the result is no different as the Full Bench of the High Court has been at pains to make out.
Purposively speaking, it will be stultifying to interpret section 3 to mean that orders in appeal by District Courts must suffer a distant journey to revisory justice from the High Court.
Thus we reach the convergent conclusion of "no revision to the High Court", viewing the text of section 3, lexically, literally, schematically, and in the setting of social justice of which saving the average litigant from the intoxication of tantalising litigation is a component.
The short test to refuse revisory jurisdiction to the High Court is to ascertain whether the decision sought to be challenged is in a case arising out of a suit of the valuation of Rs. 20,000/ and more.
If the answer is 'yes ' then the High Court has revisory power, but if the suit from which the case arises and in which the decision is made is one where the valuation is less than Rs. 20,000/ then the litigation cannot travel beyond the District Court except in that class of cases where the decision is taken for the first time by the District Court itself in a case arising out of an original proceeding.
From this angle none of the Special Leave Petitions survive.
Special Leave Petition No. 9945 of 1979 is a case where the District Judge disposed of an appeal and the revision to the High Court was directed against the appellate order.
The subject matter of the suit being below Rs. 20,000/ in valuation, the High Court was right in refusing to exercise any revisional power.
Special Leave Petition No. 10550 of 1979 falls in the same category and must be dismissed.
The result in Special Leave Petition No. 8857 of 1979 is equally fatal and for the same lethal reason.
Before we part with the case, we may make a general observation in the hope that it may have value as legislative guidance.
Democracy, in a vast country, of diversity, demographic immensity, logistic difficulty and large scale indigency, makes decentralisation and imperative of Administration.
Access to Justice also implies early finality within reach of the rich and the poor.
These considerations per 981 suaded the U.P. State, one of the direst in poverty, largest in population, and most agrestic in life style, to attempt a tepid procedural reform in the field of revision to the High Court in litigations of lesser financial stakes.
Judicial reform is upto now a tinkering exercise, not an engineering project but even that little tinkering is fiercely challenged as litigative anathema by the profession which is unfortunate.
S.R. Petitions dismissed.
| IN-Abs | HELD: 1.
Ordinarily when a State Legislation is being interpreted the meaning received by it in the High Court as the settled intent should rarely be disturbed by the Supreme Court unless the error is so egregious, the impact goes beyond the State or like legislation elsewhere and decisions of the High Courts thereon may lead to confusion and uncertainty.
[979 A B] 2.
Viewing the text of Section 3, lexically literally, schematically, and in the setting of social justice of which saving the average litigant from the intoxication of tantalising litigation is component, "No revision to the High Court" would be the only conclusion.
Purposively speaking, it will be stultifying to interpret, section 3 to mean that orders in appeal by District Courts must suffer a distant journey to revisory justice from the High Court.
[980 C D] Vishesh Kumar vs Shanti Prasad, ; clarified.
The short test to refuse revisory jurisdiction to the High Court is to ascertain whether the decision sought to be challenged is in a case arising out of a suit of the valuation of Rs. 20,000/ and more.
If the answer is 'Yes ' then the High Court has revisory power, but if the suit from which the case arises and in which the decision is made is one where the valuation is less than Rs. 20,000/ then the litigation cannot travel beyond the District Court except in that class of cases where the decision is taken for the first time by the District Court itself in a case arising out of an original proceeding.
From this angle, none of the Special Leave Petitions survive.
[980 D F] After all, our District Courts are easier of access for litigants, and the High Courts, especially in large States like Uttar Pradesh, are 'untouchable ' and 'unapproachable ' for agrestic populations and even urban middle classes.
Nor is there ground to distrust the District Judges.
A hierarchy of courts built upon a heritage of disbelief in inferiors has an imperial flavour.
If we suspect a Munsif and put a District Judge over him for everything he does, if we distrust a district Judge and vest the High Court with pervasive supervision, if we be skeptical about the High Courts and watch meticulously over all their orders, the System will break down as its morale will crack up.
A psychic communicable disease of suspicion, skepticism and servility cannot make for the health of the 974 judicial system.
If the Supreme Court has a super Supreme Court above it, it is doubtful whether many of its verdicts will survive, judging by the frequency with which it differs from itself.
[979 E G] Observation Democracy, in a vast country of diversity, demographic immensity, logistic difficulty and large scale indigency, makes decentralisation an imperative of Administration.
Access to Justice also implies early finality within reach of the rich and the poor.
These considerations persuaded the U.P. State, one of direst in poverty, largest in population, and most agrestic in life style, to attempt a tepid procedural reform in the field of revision to the High Court in litigations of lesser financial stakes.
Judicial reform is upto now a tinkering exercise, not an engineering project but even that little tinkering is fiercely challenged as litigative anathema by the profession which is unfortunate.
[980 G H, 981 A B]
|
Civil Appeal No. 2752 of 1972.
Appeal by Certificate from the Judgment and Order dated the 5th November, 1970 of the Punjab and Haryana High Court in Income Tax Reference No. 38 of 1969.
G. A. Shah & Miss A. Subhashini for the appellant.
Naunit Lal & Mr. Kailash Yasudev for respondent.
The Judgment of the Court was delivered by PATHAK, J.
Is a smuggler, who is taxed on his income from smuggling under the Income Tax Act, 1922, entitled to a deduction under Section 10(1) of the Act on account of the confiscation of currency notes employed in the smuggling activity? The respondent, Piara Singh, was apprehended in September, 1958 by the Indian Police while crossing the Indo Pakistan border into Pakistan.
A sum of Rs. 65,500/ in currency notes was recovered from his person.
On interrogation he stated that he was taking the currency notes to Pakistan to enable him to purchase gold in that country with a view to smuggling it into India.
The Collector of Central Excise and Land Customs ordered the confiscation of the currency notes.
The Income Tax Officer now took proceedings under the Indian Income Tax Act, 1922 for assessing the assessee 's income and determining his tax liability.
He came to the finding that out of Rs. 65,500/ an amount of Rs. 60,500/ constituted the income of the assessee from undisclosed sources.
An appeal by the assessee was dismissed by the Appellate Assistant Commissioner.
In second appeal before the Income Tax Appellate Tribunal the assessee represented that if he was regarded as engaged in the business of smuggling gold he was entitled to a deduction under Section 10(1) of the Income Tax Act of the entire sum of Rs. 65,500/ as a loss incurred in the business on the confiscation of the currency notes.
The Appellate Tribunal upheld the 1124 claim to deduction.
It proceeded on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them for gold in Pakistan which was later smuggled into India.
At the instance of the Revenue, a reference was made to the High Court of Punjab and Haryana on the following question: "Whether on the facts and in the circumstances of the case the loss of Rs. 65,500/ arising from the confiscation of the currency notes was an allowable deduction under section 10(1) of the Income tax Act, 1922?" The High Court answered the question in the affirmative.
And now this appeal by the Revenue.
In our Judgment, the High Court is right.
The Income Tax authorities found that the assessee was carrying on the business of smuggling They held that he was, therefore, liable to income tax on income from that business.
On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed.
The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit.
The currency notes were necessary for acquiring the gold.
The carriage of currency notes across the border was an essential part of the smuggling operation.
If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Custom authorities and the consequent confiscation of the currency notes.
It is an incident as predictable in the course of carrying on the activity as any other feature of it.
Having regard to the nature of the activity possible detection by the Customs authorities constitutes a normal feature integrated into all that is implied and involved in it.
The confiscation of the currency notes is a loss occasioned in pursuing the business, it is a loss in much the same way as if the currency notes had been stolen or dropped on the way while carrying on the business.
It is a loss which springs directly from the carrying on of the business and is incidental to it.
Applying the principle laid down by this Court in Badridas Daga vs Commissioner of Income tax the deduction must be allowed.
In Commissioner of Income tax, Gujarat vs S.C. Kothari this Court held that for the purpose of Section 10(1) of the Income Tax Act, 1922 a loss incurred in carrying on an illegal business must be 1125 deducted before the true figure of profits brought to tax can be computed.
Grover, J., speaking for the Court, observed: If the business is illegal, neither the profits earned nor the losses incurred would be enforceable in law.
But, that does not take the profits out of the taxing statute.
Similarly, the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subjected to tax as "profits" under Section 10(1) of the Act of 1922.
The tax collector cannot be heard to say that he will bring the gross receipts to tax.
He can only tax profits of a trade or business.
That cannot be done without deducting the losses and the legitimate expenses of the business.
" Reliance was placed by the Revenue on Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income tax, Bombay City II.
In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India.
The import of dates by steamer was prohibited.
Nonetheless he imported dates from Iraq by steamer, and the consignments were confiscated by the customs authorities.
But the dates were released subsequently on payment of fine.
The assessee 's claim to deduction under section 10(2) (xv) of the Income Tax Act was rejected on the ground that the amount was paid by way of penalty for a breach of the law.
An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held to fall on the assessee in some character other than that of a trader.
Reference was made by the Revenue to Soni Hinduji Kushalji & Co. vs Commissioner of Income tax, A.P.
The assessee 's claim to the deduction of the value of gold confiscated by the customs authorities was found unsustainable by the court.
The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country.
Our attention has also been invited to J. section Parkar vs V. B. Palekar and Others where on a difference of opinion between two learned Judges of the Bombay High Court a third learned Judge agreed with the view that the value of gold confiscated by the customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source.
It was observed that the loss arose by reason of an infraction 1126 of the law and as it had not fallen on the assessee as a trader or business man a deduction could not be allowed.
Apparently, the true significance of the distinction between an infraction of the law committed in the carrying on of a lawful business and an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case.
We hold that the assessee is entitled to the deduction of Rs. 65,500/ , and accordingly we affirm the view taken by the High Court on the question of law referred to it.
The appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
| IN-Abs | The respondent Piara Singh was apprehended in September 1958 by the Indian Police while crossing the Indo Pakistan border into Pakistan.
A sum of Rs. 65,500/ in currency notes was recovered from his person.
On interrogation he stated that he was taking the currency notes to Pakistan to enable him to purchase gold in that country with a view to smuggling it into India.
The Collector of Central Excise and Land Customs ordered the confiscation of the currency notes.
In the proceedings initiated by the Income Tax Officer, he found that Rs. 60,500/ constituted the income of the assessee from undisclosed sources.
An appeal by the assessee was dismissed by the Appellate Assistant Commissioner.
In second appeal before the Income Tax Appellate Tribunal, the assessee represented that if he was regarded as engaged in the business of smuggling gold he was entitled to a deduction under section 10(1) of the Income Tax Act, 1922 of the entire sum of Rs. 65,500/ as a loss incurred in the business on the confiscation of the currency notes.
The Tribunal upheld the claim to deduction.
It proceeded on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them with gold in Pakistan which was later smuggled into India.
The High Court on a reference at the instance of the Revenue answered the reference against the Revenue.
Hence the appeal.
Allowing the appeal, the Court.
^ HELD: 1.
The assessee is entitled to the deduction of Rs. 65,500/ under section 10(1) of the Income Tax Act, 1922.
[1124 C, 1126 B] 2.
The assessee was carrying on the business of smuggling and, therefore, was liable to income tax on income from that business.
The currency notes carried by the assessee across the border was an essential part of the smuggling operation.
If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Customs authorities and the consequent confiscation of the currency notes.
It is an incident as predictable in the course of carrying on the activity as any other feature of it.
Having regard to the nature of the activity possible detection by the Customs authorities constitutes a normal feature integrated into all that is implied and involved in it.
The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same way as if the currency 1123 notes had been stolen or dropped on the way while carrying on the business.
It is a loss which springs directly from the carrying on of the business and is incidental to it.
Applying the principle laid down by this Court in Badridas Daga vs Commissioner of Income Tax the deduction must be allowed.
[1124 D E] Badridas Daga vs Commissioner of Income Tax, ; Commissioner of Income Tax, Gujarat vs section C. Kothari ; applied.
Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income Tax, Bombay City II, , Sari Hinduji Khushalji 7 Co. vs Commr.
of Income Tax, A.P. ; J. section Parkar vs V. B. Palekar and Ors.
; distinguished and explained.
|
on No. 272 of 1955.
66 508 Petition under.
Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
Purshottam Trikamdas, V. R. Upadhya, J. B. Dadachanji and section N. Andley, for the petitioner.
M.C. Setalvad, Attorney General for India, B. Sen and R. H. Dhebar, for the respondents.
May 8.
The Judgment of section R. Das C.J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ.
was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment.
SINHA J.
This petition under article 32 of the Constitution challenges the vires of certain provisions of the Bombay Police Act, XXII of 1951, which hereinafter will be referred to as "The Act" with particular reference to section 57 under which the externment order dated the 8th November 1954 was passed against the petitioner by the first respondent, the Deputy Commissioner of Police, Crime Branch (1), C.I.D., Greater Bombay.
The second respondent is the State of Bombay.
The petitioner, who claims to be a citizen of India, was born in Bombay and had been, before the order of externment in question, residing in one of the quarters of the City of Bombay.
He keeps bullock carts for carrying on his business of transport and cows for selling milk.
The petitioner alleges that the Prohibition Police of the City instituted twelve prohibition cases against him which all ended either in his discharge or acquittal.
An "externment order" was passed against him in August 1950.
That order was set aside by the Government in December 1950, on appeal by the petitioner.
In December 1953 an order of detention was passed against him under the , and he was detained in the Thana District prison.
He moved the High Court of Bombay under article 226 of the Constitution against the said order of detention.
He was released from detention before the said petition was actually heard by the High Court.
Thereafter, the petitioner along with others was charged with possession of liquor.
The case went 509 on for about two years when he was ultimately discharged by the Presidency Magistrate on the 24th February 1955 as the prosecution witnesses were not present on the date fixed for hearing of the case.
On the night of the 9th October 1954 the petitioner was arrested along with his companions a little after midnight by members of the police force designated "Ghost Squad", which was a special wing of the Crime Branch of the C.I.D., on the allegation made by the police that they were seen running away on the sight of a police van and that they were chased and arrested and were found in possession of knives and other weapons.
In October 1954 the petitioner was served with a notice under section 57 read with section 59 of the Act.
It is convenient at this stage to set out the said notice in extenso, which is Exhibit A to the petition filed in this Court: "Notice under section 59 of the Bombay Police Act, 1951.
Name, address & age: Hari alias Dada Khemu Gawali, Hindu aged about 37 years.
" Occupation: Bullock cart owner.
Residence: Room No. 45, 1st floor, Haji Kassam Chawl, Lamington Road.
Under section 59 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951), you are hereby informed that the following allegations are made against you in proceedings against you under section 57 of the said Act.
In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 11 a.m. on 25 10 1954 to receive your explanation and to hear you and your witnesses, if any, in regard to the said allegations.
I, N. P. Paranjapye, Superintendent, C.B.I., C.I.D., therefore require you to appear before me at H. P. 0.
Annexe I (place) on the said date viz. 25 10 1954 at 11 a.m. for the said purpose and to pass a bond in the sum of Rs. 500 with ' one surety in like amount for your attendance during the inquiry of the said proceedings.
Should you fail to appear before me and to pass the 510 bond as directed above, I shall proceed with the inquiry in your absence.
Take note: Allegations: 1.
That you have been convicted of offences as per particulars mentioned below: serial Court & date of section sentence police no District convinction of law station & case No. 1.
H. C. 14 10 1938 304/109 6 yrs.
Nagpada Ps Bombay I. P. C. R.I.
C. R. No. 324/109 2 yrs.
127/38 I.P. C. R.I. (Con currently).
That you were arrested on 29 3 1948 in connection with Nagpada P.S.C.R. No. 273 of 1948 u/s 143, 147, 148, 149, 353, I.P.C. wherein you along with one Ramchandra Ishwarbhai and others committed rioting and criminal assault on a public servant, viz. a police constable No. 4459/D to deter him from the execution of his lawful duties but you were discharged in the said case due to lack of sufficient evidence.
That you were again arrested on 2 5 1948 in connection with Nagpada P.S.C.R. No. 353 u/s 143, 144, 146, 147, 148, 149, 324, I.P.C. wherein you along with one Rajaram Khemu Gawli and 7 others committed rioting armed with deadly weapons, viz., lathis, sodawater bottles etc.
and caused hurt to one Gopal Khemu Gawli but you were discharged in the said case for want of sufficient evidence.
That you were again arrested on 3 6 1949 in connection with Nagpada P.S.C.R. No. 336 of 1949 u/s 143, 147, 149, 225, 225 B, 332, I.P.C. wherein you along with one Shri Vithal Baloo and others committed rioting, assaulted a public servant, viz. a police officer (Shri section K. Kothare) to deter him from the lawful discharge of his duties and made 3 persons in the lawful custody of the police to escape, but were discharged in the said case for want of sufficient evidence.
That now you have been arrested on 9 10 1954 at about 12 50 a.m. in the company of 7 others, viz. 511 (1)Amir Masud (2) Francis Sherao & China (3) Antoo Narayan (4) Abdul Wahab Abdul Gafoor (5) Laxman Rama (6) Narayan Tukaram and (7) Rajaram Vishnoo out of whom persons mentioned at Nos.
I and 6 are, previous convicts and that at the time of arrest you and persons mentioned at Nos. 1, 2, 3 and 4 were, armed with deadly weapons to wit, clasp knives, iron bar and a lathi, and thus you were reasonably suspected to be out to commit an offence either against property or person; And that you are likely again to engage yourself in the commission of a similar offence falling either under Chapter XVI or XVII of the Indian Penal Code.
N. P. Paranjapye Superintendent of Police, Crime Branch (I), C.I.D. L.T.I. of Hari Dada Khemu Gawli.
The petitioner appeared before the Superintendent on the 8th November 1954 with his counsel and filed a long petition containing allegations running into 16 paragraphs showing cause against the order of externment proposed to be passed against him.
That petition is exhibit B. The petitioner accepted the correctness of the allegation contained in the first paragraph of exhibit A set out above, but denied the truth of the other allegations made therein against him which he characterised as based on "old prejudice and sus picion".
As regards his conviction referred to in the first paragraph aforesaid, he stated: "I had unfortunately a conviction in 1938 when was a mere youth.
I have lived a clean and honourable life ever since.
" Then he goes on to make reference to the other cases charged against him and claimed that he had been "discharged in those cases for want of sufficient evidence".
The first respondent aforesaid ultimately passed the order of externment which is Exhibit C to the petition, on the 8th November 1954.
After reciting the previous conviction which was for offences under Chapter XVI, Indian Penal Code and that the petitioner was likely again to engage in the commission 512 of similar offences and saying that he was satisfied about the matters contained in the previous notice, the first respondent directed the petitioner under section 57 of the Act to remove himself outside the limits of Greater Bombay within two days from the date of the final order in the case pending against him, as noted in the order, for a period of two years from the date of the order, and not to enter or return to the said area of Greater Bombay without the permission in writing of the Commissioner of Police, Greater Bombay, or the Government of Bombay.
The petitioner preferred an appeal to the Government of Bombay against the said order of externment.
But the appeal was dismissed.
Substantially on those allegations this Court has been moved under article 32 of the Constitution.
The first respondent has sworn to the affidavit filed in this Court to the effect that the petitioner has been fully heard by the authorities before the order impugned in this case was passed.
It is further stated in the affidavit that in the previous case in which the petitioner had been convicted be bad been found guilty along with his brother Rajaram of having caused the death of a person who had given evidence against them in a previous trial.
The first respondent further stated in the affidavit that the material examined by him before passing the order impugned showed that since 1948 the petitioner had been resorting to violence and was concerned in a number of cases involving acts of violence, namely: 1.
In March 1948 a police constable was assaulted.
Though the petitioner was one of the persons concerned with the crime, he was not charge sheeted because sufficient evidence was not forthcoming against him.
In April 1948 the petitioner 's brother had charged him and eight others with having thrown sodawater bottles and used lathis.
The Presidency Magistrate, 17th Court, Mazgaon, Bombay, had to adjourn the case several times for recording evidence of witnesses who remained absent and ultimately the court refused to grant further adjournment for the 513 production of witnesses and the case ended in a discharge for want of evidence.
In May 1949 the police had arrested three persons including Rajaram aforesaid, the petitioner 's brother for being concerned in sale of illicit liquor.
While those arrested persons were being taken to the police lorry for being taken to the police station, the petitioner and other persons forcibly rescued those arrested persons from the custody of the police.
But the case ultimately failed in August 1950 because the witnesses failed to turn up to give evidence against the accused including the petitioner.
At about 12 50 a.m. on 9th October 1954, the Special Squad, Crime Branch, C.I.D., Bombay, while proceeding on their rounds noticed the petitioner and seven others armed with an iron bar and lathi.
On seeing the police van, they started running away and were chased and arrested by the police force.
On arrest the petitioner and his other associates were found carrying "clasp knives".
The petitioner and three of the seven arrested persons were found smelling of alcohol.
The petitioner was placed on his trial for offences under the Bombay Prohibition Act and the Bombay Police Act.
He was acquitted by the learned trial Judge because of discrepancies in the evidence of some of the prosecution witnesses.
The respondent further averred that after examining all the material against him in the light of his previous conviction under sections 304/109 and 324/109, Indian Penal Code, he was satisfied that the petitioner.
was likely again to engage in the commission of offences similar to those for which he had been previously convicted.
Accordingly he passed the order of externment against the petitioner, as set out above.
In support of the petition which was heard along with Petitions Nos. 439 and 440 of 1955 (in which the orders impugned had been passed under section 56 of the Act and which are being disposed of by a separate judgment) the leading argument by Shri Purshotham raised the contentions, (1) that section 57 of the Act contravened clauses (d) and (e) of article 19(1) of the Constitution and that the provisions 514 of that section imposed unreasonable restrictions on the petitioner 's fundamental rights of free movement and residence; and (2) that the order passed under section 57 against the petitioner is illegal inasmuch as it is based on vague allegations and inadmissible material, for example, on orders of discharge or acquittal.
Each of the two broad grounds has been elaborated and several points have been sought to be made under each one of those heads.
It has been contended that the police have been vested with un limited powers in the sense that any person whom they suspect or against whom they have their own reasons to proceed can be asked to remove, not only from any particular area, like Greater Bombay, but from the entire State of Bombay.
Even if one order does not ask a person to remove himself out of the entire State, each authority within its respective local jurisdiction can ask a particular person to go out of that area, so that that person may find himself wholly displaced without any place to go to.
Unlike the law relating to preventive detention, there is no provision for an Advisory Board which could examine the reasonableness of the order proposed to be passed or already passed, so that there is no check on the exercise of power by the police authorities under the Act, however flagrant the abuse of the power may have been.
It is also contended that the provisions as regards hearing by the police authorities and appeal to the State Government are illusory.
The police is both the prosecutor and the judge and the remedy provided by the Act is a mere eye wash.
It is also pointed out that all kinds of offences have been clubbed together which have no rational connection with one another.
Reliance was placed on certain observations made by this Court in a number of decisions,, viz., Chintaman Rao vs The State of Madhya Pradesh(1); The State of Madras V. V. G. Row(2); Thakur Raghubir Singh vs Court of Wards, Ajmer(3); Messrs Dwarka Prasad Laxmi Narain vs State of U. P.(4); and Ebrahim Vazir Mavat vs State of Bombay(5).
(1)[19SO] S.C.R. 759.
(2) [1952] S.C.]&.
(3) (1953] S.C.R. 1049.
(4) (1954] section CB.
(5) 515 Section 57 of the Act which is particularly impugned in this case is in these terms: "Removal of persons convicted of certain offences.
If a ,person has been convicted (a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code, or (b) twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923, or (c) thrice of an offence within a period of three years under section 4 or 12 A of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe, and not to enter or return to the area from which he was directed to remove himself.
Explanation For the purpose of this section Can offence similar to that for which a person was convicted ' shall mean (i) in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause, and (ii) in the case of a person convicted of an offence mentioned in clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in the said clause&".
In order to attract the provisions of this section, two essential conditions must be fulfilled, viz.; (1) that there should have been a previous conviction under Chapter XII, XVI or XVII, Indian Penal Code, or two previous convictions under the Acts mentioned 516 in clause (b), or three previous convictions within a period of three years under the Acts mentioned in clause (c); and (2) that the authority named should have reason to believe that a person coming within the purview of any of the clauses (a), (b) and (c) is likely again to engage himself in the commission of an offence similar to that for which he had been previously convicted; that is to say, for an offence falling under any of the three chapters mentioned in clause (a), or if he had been twice convicted under the Beggars Act, or the Prevention of Prostitution Act, or thrice convicted under the Prevention of Gambling Act or the Prohibition Act; so that, a previous conviction for "offences relating to coin and Government stamps" has been equated with one for "offences affecting the human body" (chapter XVI) or "offences against property" (chapter XVII) of the Indian Penal Code.
I Chapter XII contains sections 230 to 263(A).
Chapter XVI contains section 299 to section 377 and Chapter XVII contains section 378 to section 462 of the Code.
In other words, one convicted for counterfeiting coin may in terms of the impugned section 57 be said to have engaged himself in the commission of a similar offence if he is likely to use criminal force or to commit theft or extortion or robbery or dacoity or criminal misappropriation of property or criminal breach of trust.
It has therefore been rightly pointed out on behalf of the petitioner that the range of the offences referred to in clause (a) of section 57 is very wide indeed and that it is difficult to point out any rational basis for clubbing them together.
A person convicted under Chapter XII, Indian Penal Code of counterfeiting Indian Coin or Government stamps may rightly be called the enemy of public finance and revenue, but is far removed from a person who may be convicted of murder or other offences against human body or against private property.
But the legislature in its wisdom has clubbed all those offences together and it is not for this Court to question that wisdom provided the provisions of the Act do not impose unreasonable restrictions on right to freedom.
Conviction 517 under the Bombay Beggars Act and the Bombay Prevention of Prostitution Act have been clubbed together under clause (b).
and similarly previous convictions under the Bombay Prevention of Gambling Act and Bombay Prohibition Act have been clubbed together.
So the previous convictions under the three clauses aforesaid have been placed in three different categories.
Article 19 of the Constitution has guaranteed the several rights enumerated under that article to all citizens of India.
After laying down the different rights to freedom in clause(1), clauses (2) to (6) of that article recognise the right of the State.
to make laws putting reasonable restrictions on those rights in the interest of the general public, security of the State, public order, decency or morality and for other reasons set out in those sub clauses, so that there has to be a balance between individual rights guaranteed under article 19(1) and the exigencies of the State which is the custodian of the interests of the general public, public order, decency or morality and all other public interests which may compendiously be described as social welfare.
For preventing a breach of the public peace or the invasion of private rights the State has sometimes to impose certain restrictions on individual rights.
It therefore becomes the duty of the State not only to punish the offenders against the penal laws of the State but also to take preventive action.
"Prevention,is better than cure" applies not only to individuals but also to the activities of the State in relation to the citizens of the State.
The impugned section 57 is an instance of the State taking preventive measures in the interest of the public and for safeguarding individual 's rights.
The section is plainly meant to prevent a person who has been proved to be a criminal from acting in a way which may be a repetition of his criminal propensities.
In doing so the State may have to curb an individual 's activities and put fetters on his complete freedom of movement and residence in order that the greatest good of the greatest number may be conserved.
The law is based on the principle that it is desirable in the larger 518 interests of society that the freedom of movement and residence of a comparatively fewer number of people should be restrained so that the majority of the community may move and live in peace and.
harmony and carry on their peaceful avocations untrammelled by any fear or threat of violence to their person or property.
The individual 's right to reside in and move freely in any part of the territory of India has to yield to the larger interest of the community.
That the Act is based on sound principle cannot be gainsaid.
Now the only question is whether the provisions of the impugned section are not justified in the larger interest of the community, or, in other words, whether they impose a larger restriction than is reasonably necessary to meet the situation envisaged by the section.
From that point of view we shall now examine the other arguments advanced to show that the provisions of the impugned section are unreasonable restrictions on individual right to reside in and move freely in any part of India.
It has been observed by this Court in the case of 'Gurbachan Singh vs The State of Bombay(1) at p. 742, as per Mukherjea, J. (as he then was): "It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in article 19 (1) (d) of the Constitution are reasonable or not within the meaning of clause (5) of the article would depend as much upon procedural part of the law as upon its substantive part; and the court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed".
In this case the attack against ' section 57 of the Act is directed both against the procedural part of the law and the substantive part.
It has been contended that the person dealt with under section 57 may be directed to remove himself altogether outside the limits of the State of Bombay because the Act extends to the whole of the State of Bombay.
The provisions of section 57 can be applied either by the Commis (1) ; 519 sioner of Police for Greater Bombay and other areas for which a Commissioner may be appointed under section 7 or by the District Magistrate or a Sub Divisional Magistrate specially empowered by the State Government in that behalf.
Any one of the aforesaid authorities.
has power to direct an individual dealt with under section 57 to remove himself outside the area within the local limits of his jurisdiction.
Hence none of those authorities has the power to direct that person to remove himself outside the entire State of Bombay.
The situation envisaged by the argument that a person may be called upon to remove himself out of the limits of the entire State of Bombay would not ordinarily arise because the idea underlving the provisions of sections 55 to 57 is the "dispersal of gangs and removal of persons convicted of certain offences" as would appear from the sub heading II in chapter V, which is headed "special measures for maintenance of public order and safety of State".
A gang of criminals or potential criminals operates or may intend to operate within certain local limits and the idea behind the provisions of section 57 is to see to it that a person with previous conviction who may have banded together with other such persons should be disbanded and hounded out of the limits of his ordinary activities, his associates also are to be similarly dealt with, so that the gang is broken up and the different persons constituting it may be removed to different parts of the State so as to reduce their criminal activities to the minimum.
Unless a person makes himself so obnoxious as to render his presence in every part of the Bombay State a menace to public interest including public peace and safety, every Commissioner of Police or ' district Magistrate or Sub Divisional.
Magistrate would not think of acting in the same way in respect of the same person.
Hence, in our opinion, there is no substance in this argument.
It may be mentioned in this connection that previous to the enactment of the impugned Act there was the Bombay District Police Act IV of 1890 which applied to the whole Presidency of Bombay except the Greater Bombay (omitting all references to Sind) and the City 520 of Bombay Police Act, IV of 1902, applied to the City of Bombay except certain specified sections which applied to the whole of the Presidency of Bombay; so that the two Acts aforesaid covered the whole of the State of Bombay as it was constituted after Independence.
The two Acts aforesaid were repealed by the impugned Act which consolidated the law for the regulation of the Police Force in , the State of Bombay which appears from the following preamble of the Act . "Whereas it is expedient to amalgamate the District and Greater Bombay Police Forces in the State of Bombay into one common Police Force and to introduce uniform methods regarding the working and control of the said Force throughout the State".
Broadly speaking, section 46 of Act IV of 1890 and.
section 27 of Act IV of 1902 correspond to the provisions of sections 56 and 57 of the Act.
It was next contended that unlike Preventive Detention laws there was no provision in the impugned law for an Advisory Board which could scrutinise the material on which the officers or authorities contemplated by section 57 had taken action against a person.
It cannot be, and has not been laid down, as a universal rule that unless there is a provision for such an Advisory Board such a legislation would necessarily be condemned as unconstitutional.
The very fact that the Constitution in article 22(4) has made specific provision for an Advisory Board consisting of persons of stated qualifications with reference to the law for Preventive Detention, but has made no such specific provision in article 19 Would answer this contention.
In this connection reference may also be made to the decision of this Court in the case of N. B. Khare, vs State, of Delhi(1) which dealt with the constitutionality of the East Punjab Public Safety Act of 1949 with reference to the provisions of article 19 of the Constitution.
In that legislation there was a provision for an Advisory Board whose opinion, however, had no binding force.
The Act was not struck down by this Court.
On the other hand, in the case (1) ; 521 of State of Madras vs V. G. Row(1), section 15(2)(b) of the Indian Criminal Law (Amendment) Act, 1908, as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, was held to be unconstitutional as the restrictions imposed on the fundamental right to form associations were not held to be reasonable in spite of the fact that there was a provision for an Advisory Board whose opinion was binding on the Government.
Hence it cannot be said that the existence of an Advisory Board is a sine qua non of the constitutionality of a legislation such as the one before us.
It was next ' contended that the proceedings are initiated by the police and it is the police which is the judge in the case and that therefore the provisions of the Act militate against one of the accepted principles of natural justice that the prosecutor should not also be the judge.
In order to appreciate this argument reference has to be made to the provisions of section 59 of the Act; It provides that before action is taken under sections 55, 56 or 57 of the Act, the authority entrusted with the duty of passing orders under any one of those sections or any officer above the rank of an Inspector authorised by that officer or authority shall inform the person proceeded against in writing "of the general nature of the material allegations against him" in order to give him a reasonable opportunity ' of explaining his conduct.
If that person wishes to examine any witnesses, be has to be given an opportunity of adducing evidence.
That person has the right to file a written statement and to appear in the proceeding by an advocate or attorney for the purpose of tendering his explanation and adducing evidence.
If the person fails to appear or to adduce evidence, the authority or officer has the right to proceed with the enquiry and to pass such order as may appear fit and proper.
It is thus clear that the criticism against the procedure laid down in section 59 is not entirely correct.
The evidence or material on 'the basis of which a person may be proceeded against under any one of the sections 55, (1) (1952] S.C.R. 597.
522 56 or 57 may have been collected by police officers of the rank of an Inspector of Police or of lower rank.
The proceedings., may be initiated by a police officer above the rank of Inspector who has to inform the person proceeded against of the general nature of the material allegations against him.
But the order of externment can be passed only by a Commissioner of Police or a District Magistrate or a Sub Divisional Magistrate specially empowered by the State Government in that behalf.
Hence the satisfaction is not that of the person prosecuting, if that word can at all be used in the context of those sections.
The person proceeded against is not prosecuted but is put out of the harm 's way.
The legislature has advisedly entrusted officers of comparatively higher rank in the police or in the magistracy with the responsible duty of examining the material and of being satisfied that such person is likely again to engage himself in the commission of an offence similar to that for which he had previously been convicted.
The proceedings contemplated by the impugned section 57 or for the matter of that.
, the other two sections 55 or 56 are not prosecutions for offences or judicial proceedings, though the officer or authority charged with the duty aforesaid has to examine the information laid before him by the police.
The police force is charged with the duty not only of detection of offences and of bringing offenders to justice, but also of preventing the commission of offences by persons with previous records of conviction or with criminal propensities.
As observed by Patanjali Sastri, C. J. in the case of State of Madras V. V. G. Row(1), "externment of individuals, like preventive detention, is largely precautionary and based on suspicion".
To these observations may be added the following words in the judgment of Patanjali Sastri, C. J., (supra) with reference to the observations of Lord Finlay in Rex vs Halliday(2): "The court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based".
(1) (1952] section C.R, 597, 609.
(2) [1917] A.G. 260, 269.
523 It is thus clear that in order to take preventive action under section 57 of the Act the legislature has entrusted police officers or magistrates of the higher ranks to examine the facts and circumstances of each case brought before them by the Criminal Investigation Department.
But the legislature has provided certain safeguards against tyrannical or wholly unfounded orders being passed by the higher ranks of the police or the magistracy.
It was next contended that the provisions relating to hearing any evidence that may be adduced by the police or by the person proceeded against and right of appeal to the State Government conferred by section 60 of the Act are illusory.
We cannot agree that the right of appeal to the State Government granted to the person proceeded against by an order under section 57 is illusory because it is expected that the State Government which has been charged with the duty of examining the material with a view to being satisfied that circumstances existed justifying a preventive order of that nature, will discharge its functions with due care and caution.
Section 61 has provided a further safeguard to a person dealt with under section 57 by providing that though an order passed under section 55, section 56 or section 57, or by the State Government under section 60 on appeal shall not be called in question in any court, he may challenge such an order in a court on the ground (1) that the authority making the order or any officer authorised by it had not followed the procedure laid down in section 57, or (2) that there was no material before the authority concerned upon which it could have based its order, or (3) that the said authority was hot of opinion that witnesses were unwilling to come forward to give evidence in public against the person proceeded against.
In this connection it was argued on behalf of the petitioner that section 59 only required the general nature of the material allegations against the person externed to be disclosed and that, as it did not further provide for particulars to be supplied to such a person, it would be very difficult for him to avail of at least the second ground 68 524 on which section 61 permits him to get the matter judicially examined.
But in the very nature of things it could not have been otherwise.
The grounds available to an externee had necessarily to be very limited in their scope because if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under section 107 or section 110.
But the special provisions now under examination proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as not to permit the ordinary laws of the land being put in motion in the ordinary way, namely, of examining witnesses in open court who should be cross examined by the party against whom they were deposing.
The provisions we are now examining are plainly intended to be used in special , cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure.
Reliance was placed on a number of decisions of this Court referred to above on behalf of the petitioner to show that the terms of section 57 impugned in this case could not come within the permissible limits laid down by the Constitution in clause (5) of article 19.
But arguments by analogy may be misleading.
It has been repeatedly said by this Court that it is not safe to pronounce on the provisions of one Act with reference to decisions dealing with other Acts which may not be in pari materia.
The case nearest to the present one is the decision of this Court in Gurbachan Singh vs State of Bombay(1), where section 27(1) of the City of Bombay Police Act was under challenge and the Court upheld the constitutionality of that section.
If anything, section 57 impugned in this case provides a surer ground for proceeding against a potential criminal in so far as it insists upon a previous conviction at least.
At least in clauses (b) and (c) it insists upon more than one previous order of conviction against the person proceeded against, thus showing that the authority dealing with such a (1) (1952] S.C.R. 737.
525 person had some solid ground for suspecting that he may repeat his criminal activities.
It has not been contended before us that the decision of this Court referred to above does not lay down the correct law or that it was open to challenge in any way.
We do not think it necessary therefore to consider in detail the other cases relied upon on behalf of the petitioner.
It now remains to consider the legality of the order itself.
The bona fides of the order have not been questioned.
What has been urged against the legality of the order impugned is that it is based on previous orders of discharge or acquittal.
It is said that those orders were passed because there Was not sufficient evidence to bring the charge home to the accused.
The insufficiency of the evidence itself may have been due to witnesses not being available to depose in open court or they may have been overawed and their testimony tampered with.
These are all matters which cannot be examined by this Court in an objective way, when the legislature has provided for the subjective satisfaction of the authorities or officers who have been entrusted with the duty of enforcing those special provisions of the Act.
It cannot be laid down as a general proposition of law that a previous order of discharge or acquittal cannot be taken into account by those authorities when dealing with persons under any one of the provisions we have been examining in this case.
it is not for us to examine afresh the materials and to be satisfied that the order impugned is correct.
But the materials placed on the record of this case in the affidavit sworn to by the officer who was responsible for the order impugned show at least one thing, namely, that the petitioner has not been a victim of an arbitrary order.
For the reasons aforesaid, in our opinion, no grounds have been made out for issuing any writ or direction to the authorities concerned or for quashing the orders impugned.
The application is therefore dismissed.
526 JAGANNADHADAS J. I regret 'I am unable to persuade myself to agree with the view, which has commended itself to the majority of the Court, as to the constitutional validity of section 57(a) of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) (hereinafter referred to as the Act).
This is a provision which prima facie infringes the fundamental right of a citizen under article 19(1)(d) and (e) of the Constitution.
It can be supported only if, having regard to all the circumstances, it is possible to reach a satis factory conclusion that the imposition of the restrictions as provided thereunder is in the interests of the general public and reasonable.
The fact that our Constitution which declares fundamental rights also permits a law of preventive detention under very limited safeguards and that such laws have taken the pattern of the exercise of power by the Government or by its officers for specified purposes on the basis of their subjective satisfaction, has made us prone to reconcile ourselves to other kinds of restrictive laws affecting personal liberty though based on the subjective satisfaction of executive officers, if only they provide for certain minimum safeguards such as supply of grounds, right of representation, and the scope for review by a superior authority or by an advisory body.
If one is to adopt this standard as furnishing the sine qua non of what is a reason able law of preventive restriction of personal liberty, it may be possible to say that the provision under question satisfies the test.
But the law of preventive detention stands on a very exceptional footing in our Constitution inasmuch as it is specifically provided for in the Constitution.
The same Constitution has left the imposition of other restrictions on personal liberty to be judged by the courts with reference to the standards of reasonableness, in the interests of the public.
While undoubtedly the above three safeguards may be taken as the minimum required to satisfy the standard of reasonableness, I am not prepared to assume that they are sufficient.
It appears to me that the constitutional validity of laws of preventive restriction, as opposed to the laws of 527 preventive detention, have to be judged with reference to standards which this Court has generally accepted as regards the validity of restrictions on the other fundamental rights under article 19(1) of the Constitution.
As repeatedly held by this Court, a proper balance must be struck between the fundamental right of the citizen and the social control by the State in order to evolve the permissible restriction of the fundamental right under the Constitution.
Now there can be no doubt that the ordinary provisions in the Criminal Procedure Code enabling the executive to take preventive measures are often enough felt inadequate, particularly in large cities and towns wherein there are loose congregations of population.
In a general way therefore it may be said that to arm the executive officers with powers for preventive action against commission of offences is not in itself unreasonable.
Section 57 of the Act appears in Chapter V of the Act beaded "Special measures for maintenance of public order and safety of State" and is under the sub head II "Dispersal of gangs and removal of persons convicted of certain offences".
The substantive provisions under head II are sections 55, 56 and 57.
Section 55 relates to control and dispersal of gangs.
Section 56 relates to removal of persons about to commit offences and section 57 relates to removal of persons previously convicted of certain offences.
Sections 56 and 57 of the Act run as follows: "56.
Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements of acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involv 528 ing force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of, apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction by such route and within such time as the said officer may prescribe and not to enter or return to the said area from which he was directed to remove himself.
If a person has been convicted (a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code, or (b) twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923, or (c) thrice of an offence within a period of three years under section 4 or 12 4 of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in this behalf, if be has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and not to enter or return to the area from which he was directed to remove himself.
Explanation: For the purpose of this section "an 529 offence similar to that for which a person was convicted" shall mean (i)in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause, and (ii) in the case of a person convicted of an offence mentioned in clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in the said clauses".
Section 58 of the Act provides that a direction made under sections 56 and 57 not to enter a particular area shall be for such period as may be specified thereunder and shall in no case exceed a period of two years from the date on which it is made.
This Court has, in Gurbachan Singh vs The State of Bombay(1) pronounced on the constitutional validity of section 27(1) of the City of Bombay Police Act of 1902 (Bombay Act IV of 1902) which, word for word, is almost the same section 56 of the Act above quoted omitting (c) thereof.
As I understand that judgment, the view of the Court as to the reasonableness of that provision is based on the fact that under the said section it is essential for the exercise of the power, that in the opinion of the officer concerned, witnesses are not willing to come forward to give evidence in public against the person concerned by reason of apprehension on their part as regards the safety of their own person or property.
This is clear from the following passage at page 743 of the report: "The law is certainly an extraordinary one and has been made only to meet those, exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein".
The provisions of section 57 of the Act are totally diff erent.
This section can be invoked without the requirement of non availability of witnesses or of any opinion in that behalf being arrived at by the officer concerned.
(1) ; 530 All that is sufficient for the use of this section is that the person concerned should have been previously convicted of certain specified offences and that the officer concerned has reason to believe that such person is likely again to engage himself in the commission of a similar offence.
The powers under this section can, therefore, be invoked in every case where there is likelihood of repetition of offence by a person who has been previously convicted of a similar offence if the offence is of the specified categories, even though witnesses may be willing to come forward.
I am not prepared to accept the idea that in such a situation it would be right or reasonable to clothe executive officers with the power to take preventive action restraining the liberty of the citizen instead of taking the chance of the offence being committed and leaving the deprivation of his liberty to the ordinary channels of criminal prosecution and punishment.
It is true that in some matters anticipatory prevention is better than ex post facto punishment.
But in a State where personal liberty is a guaranteed fundamental right, the range of such preventive action must be limited to a narrow compass.
What may be called the police power of the State in this behalf must be limited by the consideration that the offence likely to be committed is of a serious nature, that the likelihood of its commission is very probable, if not imminent, and that the perpetrator of the crime, if left to commit, it, may go unpunished under the normal machinery on account of witnesses not being willing to come forward.
Section 151 of the Criminal Procedure Code authorises a police officer to arrest any person when he knows of his design to commit any cognizable offence and to send him to the nearest Magistrate for such action which he considers fit or as may be feasible under sections 107 to 110 of the Criminal Procedure Code.
Section 57 of the Act constitutes a very wide departure from such a provision and there must be clear justification for so serious an encroachment on personal liberty as is contemplated therein.
A provision of the kind might not only be justified but may be called for, if confined to serious offences 531 serious either because of their nature or of the attendant circumstances and if witnesses are likely to be terrorised.
I am unable to see why a person who may have previously committed any offence of a minor character and in ordinary circumstances, under Chapters XII, XVI or XVII of the Indian Penal Code, should not be left alone to the ordinary channels of prosecution.
It appears to me that the proper balance between the fundamental right and social control is not achieved by vesting the power in executive officers in such wide terms as in section 57 of the Act.
Such a provision would lead to serious encroachment on the personal liberty of a citizen.
While, of course, abuse of power is not to be assumed to test its reasonableness, neither is a power given in wide terms and prima facie unreasonable, to be considered reasonable on an assumption of its proper use.
I am also unable to see that the fact of previous commission of any such offence without any limitation as to the period of time that way have elapsed, or the circumstances with reference to which such an ,offence may have been committed, is any relevant consideration to justify restriction on personal liberty by way of preventive action.
I am not aware that, there is any accepted theory of criminology which justifies the view that a person who has committed an offence has any inherent tendency to repeat a similar offence apart from environment, heredity or the like.
In a trial for the commission of an offence prior conviction is ruled out as inadmissible.
On an evaluation of the tendency to repeat a crime, I. do ' not see how it is permissible material except in cases where repeated previous commission of offences indicates a habit.
It has been said that the power under section 57 of the Act will be exercised only when the officer concerned has before him not merely the fact ' of previous conviction but other material on the basis of which he has reason to believe that the person con cerned is likely to engage himself in the commission of the offence.
But this ultimately is a question of subjective satisfaction.
It is not open to review by a Court It would be difficult to postulate how far 69 532 such a factor, as previous conviction, might have prejudiced a fair consideration of the other material before the officer.
To my mind the law which permits subjective satisfaction to prevail on such material must be considered unreasonable.
In my view, therefore., though the procedural portion of the law as provided in sections 59 and 61 of the Act may not be open to serious criticism, the substantive portion of the law relating to content of the power as provided under section 57 of the Act cannot be held to be in the nature of reasonable restriction of the fundamental right, for three reasons.
Clause (a) of section 57 of the Act not being confined to offences serious in their nature or with reference to the attendant circumstances within the Chapters specified therein, prevention of the repetition thereof cannot be considered a reasonable restriction.
It is in excess of what may be considered justifiable.
The previous commission of an offence ,of the category specified, without any reference to the time, environment and other factors has no rational relation to the criterion of "reasonableness in the interest of public".
The exercise of the power not being limited by the consideration of non availability of witnesses is also not rationally related to the criterion of "reasonableness in the interest of the public".
For all the above reasons I consider that section 57 of the Act is constitutionally invalid.
ORDER.
BY THE COURT In accordance with the Judgment of the majority this Petition is dismissed.
Petition dismissed.
| IN-Abs | Section 57, of the Bombay Police Act, 1951 provides that if a person has been convicted of certain offences detailed therein, "the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and not to enter or return to the area from which he was directed to remove himself".
Under the provisions of the said section an order of externment was passed against the petitioner who challenged the order on the grounds that section 57 contravened clauses (d) and (e) of Article 19(1) of the Constitution, that the provisions of the said section imposed unreasonable restrictions on the petitioner 's fundamental rights of free movement and residence and that the order passed against him was illegal inasmuch as it was based on vague allegations and inadmissible material.
Hold, per section R. DAS C.J., VENKATARAMA AYYAR, B. P. SINHA and JAFER IMAM JJ.
(JAGANNADHADAS J. dissenting) (1) Section 57 of the Bombay Police Act, 1951 is not uncon stitutional, because, it is an instance of the State taking preventive measures in the interests of the public and for safeguarding individual rights, by preventing a person, who has been proved to be a criminal from acting in a way which may be a repetition of his criminal propensities, and the restrictions that it imposes on the individual 's right to reside in and move freely in any part of India are reasonable within the meaning of clause (5) of article 19 of the Constitution.
(2) The restrictions cannot be said to be unreasonable on the ground that the person dealt with under section 57 of the Act may be 507 directed to remove himself altogether outside the limits of the State of Bombay as the Act extends to the whole of the State, because, unless the person makes himself so obnoxious as to render his presence in every part of the State a menace to public peace and safety, every District authority would not think of acting in the same way in respect of the same person.
(3)It cannot be laid down as a universal rule that unless there isa provision for an Advisory Board which could scrutinise the material on which the officers or authority contemplated by section 57 had taken action against a person, such a legislation would be unconstitutional.
(4) The provisions in sections 55, 56, 57 and 59 of the Act are not invalid on the ground that only the general nature of the material allegations against the person externed are required to be disclosed and that it would be difficult for him to get the matter judicially examined.
The provisions are intended to be used in special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure.
(5)The legality of the order of externment cannot be im pugned on the ground that there was not sufficient evidence to bring the charge home to the petitioner, because these are all matters which cannot be examined by this Court in an objective way, when the legislature has provided for the subjective satisfaction of the authorities or officers who have been entrusted with the duty of enforcing the special provisions of the Act.
Gurbachan Singh vs The State of Bombay ([1952] S.C.R. 737), followed.
Per JAGANNADHADAS J: Section 57 of the Act is constitu tionally invalid because: (1)Clause (a) of section 57 of the Act not being confined to off" serious in their nature or with reference to the attendant circumstances within the Chapters specified therein, prevention of the repetition thereof cannot be considered a reasonable restriction.
It is in excess of what may be considered justifiable.
(2)The previous commission of an offence of the category specified, without any reference to the time, environment and other factors has no rational relation to the criterion of "reasonableness in the interest of public".
(3)The exercise of the power not being limited by the consideration of non availability of witnesses is also not rationally related to the criterion of "reasonableness in the interest of the public".
Gurbachan Singh vs The State of Bombay ([1952] S.C.R. 737), distinguished.
|
ivil Appeals Nos.
1270 & 1317 1319 of 1970.
From the Judgment and Order dated 5 2 1970 of the Punjab and Haryana High Court in L. P. A. Nos.
96 99 of 1966.
Kapil Sibal, J. B. Dadachanji and Shri Narain for the Appellant.
section Manchanda, Mrs. Shobha Dikshit and Mrs. Urmila Kapoor for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
These appeals by certificate are directed against a Common judgment dated February 5, 1970 of the Punjab and Haryana High Court by which a Letters Patent Appeal against a decision of the Single Judge was dismissed.
The facts of the case lie within a narrow compass and all the appeals involve a short point of law relating to the interpretation of s.9 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 'Act ').
The history of the case has been detailed in the judgment of the High Court and it is not necessary for us to repeat the same.
Shorn of unnecessary details the appeals arose out of applications made by Pera Ram.
Ganga Ram, Bhago and Kalu Ram who were the tenants of agricultural land owned by Mrs. Raj Kanta, the appellant in these appeals.
The tenants made separate applications under section 18 of the Act on September 4, 1961 for purchasing the land held by them from Mrs. Raj Kanta (hereinafter called the 'land owner ').
These applications were allowed by the Assistant Collector on October 31, 1961.
Accordingly, the tenants deposited the 1009 first instalment in November 1961.
Ultimately, however, the tenants did not pay the rent of the respective holdings for Kharif 1961.
It is common ground that the last date by which the rent for Kharif 1961 was payable by the tenants to the land owner was January 15, 1962 and that the tenant did not pay the rent and did not show sufficient cause for the same.
In view of the default, the land owner filed separate applications under s.9(1) (ii) of the Act on the ground that as the tenants had failed to pay the rent regularly without sufficient cause, they were entitled to be ejected by the land owner.
The applications for ejectment were, however, dismissed but on appeal the Collector allowed the appeals by his order dated May 31, 1962.
Second appeals preferred by the tenants in the ejectment proceedings were dismissed by an order dated 5.11.62 of the Commissioner and ultimately upheld by the Financial Commissioner by his Order dated December 21, 1962.
Having failed before the Revenue courts, the tenants respondents filed a writ petition in the High Court which was heard by a Single Judge.
But in the case of Kalu Ram the Financial Commissioner allowed the petition and rejected the prayer for his ejectment by the land owner as a result of which the land owner filed a writ petition in the High Court.
All the petitions were consolidated and heard together, by the single Judge who allowed the writ petition of the tenants and quashed the order of the Financial Commissioner directing ejectment of the tenants.
The writ petition of the land owner against Kalu Ram was, however, dismissed.
Hence, the four appeals by the land owner appellant in this Court.
The only point that has been canvassed before us is as to whether or not the High Court was right in interpreting s.9 of the Act by holding that the term 'regularly ' used in s.9(1) (ii) would not include a single default.
While the Revenue courts had held that the mere fact that the tenants made a single default in payment for the rent for Kharif 1961 was sufficient to attract the penalty of ejectment envisaged by section 9(1) (ii) of the Act, the High Court took the view that on a proper interpretation of the term 'regularly ' it will appear that the legislature did not contemplate that ejectment should be ordered straightaway even if a single default, though unexplained, is committed by the tenant which interpretation would run against the avowed object of the legislation which was to advance and ameliorate the lot of the tenants.
The High Court had considered the matter at very great length and placed a very wide interpretation on the term 'regularly ' so as not to include within its ambit one single default.
It has also referred to a number of authorities and Dictionaries to 1010 show that the word 'regularly ' does not mean absolute symmetry.
Having gone through the reasons given by the High Court we are unable to agree with the view taken either by the single Judge or the Division Bench of the High Court.
There can be no doubt that the Act is a piece of social legislation meant to ameliorate the lot of the tenants and to further the rights of the tenants by conferring on them the status of a permanent tenancy or the rights to purchase the land on payment of instalments.
At the same time, we cannot overlook the fact that the landlords within a very limited sphere have been assured protection in respect of the rights which they possess in the land and have been given the right to eject the tenants on specified grounds which are contained in the various sub clauses of section 9 of the Act.
One such sub clause is sub clause (ii) which falls for interpretation in the instant case.
Section 9(1) as also clauses (i) and (ii) may be extracted thus: "9.
Liability of tenant to be ejected: 1.
Notwithstanding anything contained in any other law for the time being in force, no land owner shall be competent to eject a tenant except when such tenant (i) is a tenant on the area reserved under this Act or is a tenant of a small land owner; (or) (ii) fails to pay rent regularly without sufficient cause; . " While interpreting the word 'regularly ' the High Court seems to have overlooked two important circumstances.
In the first place, the word 'regularly ' has been used immediately after the phrase 'fails to pay rent ' and is followed by the words 'without sufficient cause '.
Secondly, there is nothing in the section to indicate that the legislature intended to exclude one single default.
The High Court attempted to supply words to the section which are not there.
In doing so it has failed to consider that if once the court was to lay down a particular line of demarcation by extending the connotation of the word 'regularly ' to exclude one default, it is difficult to explain why the legislature contemplated only one default and not two or three for that matter.
In order to construe the plain language of s.9(1) (ii) which admits of no ambiguity, it may be necessary to look to the object and the purposes of the Act.
In the case of Bhagirath Ram Chand vs State of Punjab & Ors.
a full Bench of the Punjab & Haryana High Court held that the Preamble of the Act stated that it was intended to provide for the security of land tenure and other incidental matters.
It 1011 is no doubt true that the main thrust of the provisions of the Act are directed towards preventing the landlords from ejecting their tenants except on the grounds mentioned in s.9, but at the same time, it cannot be denied that the legislature undoubtedly provided some protection to the landlords by conferring on them a limited right to eject their tenants and within this limited sphere, the right was absolute and could not be curtailed by interpreting clause (ii) of section 9(1) of the Act through a process of twisting the law and doing violence to the language of the section.
To begin with, the word 'regular ' is derived form the word 'regula ' which means 'rule ' and its first and legitimate signification, according to Webster, is 'conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode.
In Words and Phrases (Vol.
36A, p.241) the word 'regular ' has been defined as 'steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule, standard, or pattern '.
It is further stated in the said Book that 'regular ' means steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation.
The word 'regular ' means in a regular manner, methodically, in due order.
Similarly, Webster 's New World Dictionary defines 'regular ' as 'consistent or habitual in action, not changing, uniform, conforming to a standard or to a generally accepted rule or mode of conduct: In the case of Arab Bank Ld. vs Ross while construing the words 'complete and regular ', Romer LJ observed as follows: "It wold accordingly follow, in my judgment, in the present case that the omission of the word "company" from the endorsement would reasonably give rise to a doubt whether in point of personality the payees and the indorsers were necessarily the same; and if so the bills cannot, as I think, be said to be "complete and regular" on their face.
" The view of the Judge clearly indicates that the word 'regular ' postulates a state of symmetry, consistency and uniformity.
In Hammond vs London County Council while construing the term "regularly employed", Farwell J. observed as follows: "It is of course a question of fact in each case whether a man was regularly employed or not, but in this particular case I think that the plaintiff, who was employed for the five years and paid his wages day in and day out during that period as a servant or officer of the defendants ' predecessors, was "regularly employed" during that period.
" 1012 This interpretation also supports our view that the word 'regular ' means a consistent course of conduct without any break or breach.
On a consideration of the authorities mentioned above, it seems to us that the legislature clearly intended to use the word 'regularly ' to mean payment of rent in a uniform and consistent manner without any breach or default.
The legislature never contemplated that a single default could be condoned.
This inference is fortified by the words "without sufficient cause".
In other words, the legislature clearly provided that if the tenant had committed a default, whether one, two or more, the same could only be condoned if sufficient cause is shown and not otherwise.
If, however, we accept the interpretation of the High Court, then the words "sufficient cause" becomes, absolutely redundant.
On an overall consideration of the matter, a correct interpretation of the plain language and the words and phrases used in clause (ii) of s.9(1) of the Act seems to us that the word 'regular ' connotes a consistent course of conduct without any break or breach and the words 'regular payment of rent ' mean that the rent should be paid punctually without any default or laxity.
Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under s.9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act.
In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of section 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates.
In the instant case, the words 'failure to pay rent regularly without sufficient cause ' postulate the following conditions: (1) there must be a failure on the part of the tenant to pay rent; (2) such failure must be to pay rent regularly, that is to say, the rent should be paid punctually consistently without any break or breach; (3) if there is any default ranging from one to several, the tenant has got to show sufficient cause if his case is to be taken out of the mischief of section 9(1) (ii).
1013 We might add at the risk of repetition that the use of the words `without sufficient cause ' clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause.
If, however, we construe the word `regularly ' as meaning at regular intervals so as to include a single default, then the term `without sufficient cause ' becomes absolutely redundant.
For instance, even if a single default in the payment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of section 9(1) without insisting on the tenant to prove sufficient cause for this single default.
That would, therefore, make the words `sufficient cause ' meaningless in such cases.
It is well settled that the legislature does not waste words and every word that is used by it must be presumed to have some significance.
The function of the Court, says Sir Fracis Bacon, is "jus decere and not jus dare" (to interpret the law and not to make the law).
The Court cannot, therefore, in order to promote its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the legislature.
We are constrained to observe, with due respect, that this is what the High Court seems to have done in this case by adopting a puerile and pedantic process of reasoning.
In these circumstances, reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word `default ' the word `regularly ' has been employed which is immediately followed by the words `without sufficient cause '.
Moreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on.
If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of section 9(1) of the Act.
Finally, we cannot lose sight of the explanation used for the various clauses of section 9(1) which runs thus : "Explanation.
For the purposes of clause (iii), a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent.
" While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, 1014 indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation.
This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of s.9(1) of the Act and which invalidates the reasons given by the High Court.
For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of section 9(1) of the Act as the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment.
The view taken by the High Court is legally erroneous and cannot be supported.
In Civil Appeal No. 1319 of 1970, an objection was taken by the appellant that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record.
This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980.
The result is that the appeals are allowed, the judgment of the High Court is set aside and the order of the Collector directing ejectment of the tenants is restored.
The writ petitions filed by tenants before the High Court stand dismissed and the one filed by the appellant against Kalu Ram stands allowed.
In the circumstances of the case, there will be no order as to costs.
section R. Appeals allowed.
| IN-Abs | Pera Ram, Ganga Ram, Bhago and Kalu Ram were the tenants of agricultural land owned by Mrs. Raj Kanta, the appellant.
The tenants made separate applications under section 18 of the Punjab Security of Land Tenures Act, 1953, on September 4, 1961 for purchasing the land held by them from the land owner.
These applications were allowed by the Assistant Collector on October 31, 1961.
Accordingly, the tenants deposited the first instalment in November 1961.
Ultimately, however, the tenants did not pay the rent of the respective holdings for Kharif 1961.
It is common ground that the last date by which the rent for Kharif 1961 was payable by the tenants to the land owner was January 15, 1962 and that the tenant did not pay the rent and did not show sufficient cause for the same.
In view of the default, the land owner filed separate applications under section 9(1)(ii) of the Act on the ground that as the tenants had failed to pay the rent regularly without sufficient cause, they were entitled to be ejected by the land owner.
The applications for ejectment were, however, dismissed but on appeal the Collector allowed the appeals by his order dated May 31, 1962.
Second appeals preferred by the tenants in the ejectment proceedings were dismissed by an order dated 5 11 62 of the Commissioner and ultimately upheld by the Financial Commissioner by his Order dated December 21, 1962.
Having failed before the Revenue courts, the tenants respondents filed a writ petition in the High Court which was heard by a single judge.
But in the case of Kalu Ram the Financial Commissioner allowed the petition and rejected the prayer for his ejectment by the land owner as a result of which the land owner filed a writ petition in the High Court.
All the petitions were consolidated and heard together, by the single Judge who allowed the writ petition of the tenants and quashed the order of the Financial Commissioner directing ejectment of the tenants.
The writ petition of the land owner against Kalu Ram was, however, dismissed.
Hence, the four appeals by the land owner appellant to this Court.
Allowing the appeals, the Court ^ HELD: 1.
The Punjab Security of Land Tenures Act 1953 is a piece of social legislation meant to ameliorate the lot of the tenants by conferring on them the status of a permanent tenancy or the rights to purchase the land on payment of instalments.
At the same time, the landlords within a very limited sphere have been assured protection in respect of the rights which they possess in the land and have been given the right to eject the tenants on specified grounds which are contained in the various sub clauses of section 9 of the Act.
Sub Clause (ii) is one such sub clause.
This right was absolute and could not 1007 be curtailed by interpreting clause (ii) of section 9(1) of the Act through a process of twisting the law and doing violence to the language of the section, especially when it admits of no ambiguity.
[1010 A C, 1011 A B] Bhagirath Ram Chand vs State of Punjab and Ors., A.I.R. 1954 Punjab 167: referred to.
The word 'regular ' which is derived from the word 'regula ' which means 'rule ', means in a regular manner, methodically, in due order and postulates a state of symmetry, consistency and uniformity.
In other words, 'regular ' means a consistent course of conduct without any break or breach.
[1011 B, D, F & 1012 A] Arab Bank vs Ross, ; Hammond vs London County Council, [1931] Chancery 540; quoted with approval.
Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned, it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under section 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act.
In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of section 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates.
[1012 D F] A correct interpretation of the plain language and the words and phrases used in clause (ii) of section 9(1) of the Act would be that the word 'regular ' connotes a consistent course of conduct without any break or breach and the 'regular payment of rent ' would mean that the rent should be paid punctually without any default or laxity.
The Legislature clearly intended to use the word 'regularly ' to mean payment of rent in this manner.
The Legislature never contemplated that a single default could be condoned.
The word 'regularly ' has been used immediately after the words 'fails to pay the rent ' and is followed by the words "without sufficient cause".
The Legislature clearly provided that if the tenant had committed a default whether one, two or more, the same could only be condoned if sufficient cause is shown and not otherwise.
[1012 A D] 4.
The words "failure to pay rent regularly without sufficient cause" in Section 9(1)(ii) of the Act cause postulate the following conditions: 1.
there must be a failure on the part of the tenant to pay rent; 2.
such failure must be to pay rent regularly, that is to say, the rent should be paid punctually consistently without any break or breach; 3.
if there is any default ranging from one to several, the tenant has got to show sufficient cause if his case is to be taken out of the mischief of section 9(1)(ii).
[1012 F H] 5.
It is well settled that the Legislature does not waste words and every word that is used by it must be presumed to have some significance.
The function of the Court is 'jus decere ' not 'jus dare '.
The Court cannot, therefore, in 1008 order to promote its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the Legislature.
The words 'without sufficient cause ' clearly indicate that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause.
Reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word 'default ', the word 'regularly has been employed which is immediately followed by the words 'without sufficient cause '.
If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of section 9(1) of the Act.
[1013 C F] 6.
While the Explanation to section 9(1) of the Act takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation.
This provides therefore, the most important intrinsic circumstance to support the interpretation of clause (ii) of section 9(1) of the Act.
[1014 A B]
|
itions Nos.
111,150 151, 180, 205 210, 220,226, 270 271, 346 352, 355, 403, 396 398, 599, 541, 543, 626, 635 639, 661, 687 692 and 758/77, 154, 178, 571 574, 600, 603, 605, 610, 611,257,221 and 1134 1134/77.
1055 (Under Article 32 of the Constitution) A. K. Sen, section C. Banerjee, Y. section Chitale, K. K. Sinha, section K. Sinha, Pradeep Hajela, section K. Verma, A. K. Srivastava, M. P. Jha, C. K. Ratnaparkhi, B. N. Lala, Surajdeo Singh, D. P. Mukherjee and A. K. Ganguli for the Petitioners in W.Ps.
Nos. 111, 150 151, 154, 178, 610 611 661, 180, 270 271, 599, 220, 226, 205 210, 396 398 and 600 of 1977.
H. M. Seervai, Kamal Nayan Choubey, A. K. Srivastava, B. P. Singh and Bimal Kumar Sinha for the Petitioners in WP Nos. 237, 571 574, 603, 605, 355, 346 of 1977.
D. Goburdhan for the Petitioners in WP Nos.
687, 692, 635 639, 352, and Respondent No. 12 in WP Nos. 150 151/77.
A. K. Sen, section C. Bannerjee, Y. section Chitale, section B. Sanyal, A. K. Banerjee and A. K. Nag for the Petitioners in WP Nos.
626, 541, 543 and Respondent No. 15 in WP 154/77.
section V. Gupte, section N. Kacker, U. R. Lalit, section P. Nayar, R. N. Sachthey and Gobind Mukhoty for the Respondents Nos. 1, 9 12 in WP No. 111, RR. 1, 7, 11 in WP Nos.
150 151, RR. 1, 8 to 12 in WP.
154, RR.
1&7 in WP.
178, RR.
1&7 in WPs.
610 611 RR.
1,5,6 & 8 in WP.
661, RR. 1 & 7 in WP Nos. 270 271, RR 1 & 7 in WP in 599, RR. 1, 8, 9 12 & 15 in WPs.
Nos 571 574, RR. 1, 8 13 & 16 in WP No. 603.
1,2&9 in WP 605,RR.1,2,10,11,14&15 in WP.
355, RR. 1, 8 12 in WP 346, RR. 1, 3 5, 8, 9 in WP No. 626, RR. 1, 6 10 & 14 in WP.
541, RR.
1 5 & 9 in WP.
543, RR. 1, 8 & 12 and 15 in WP.
758, RR 1, 7 in WP.
257, RR.
1&7 in WPs.
220 and 226 RR.
1&8 in WPs.
205 210, RR. 1&8 in WP.
600, RR. 1, 3, 11 15 in WP 403, RR. 1, 9 & 10 in WP No. 180/77.
Lal Narain Sinha, U. P. Singh, Shambhu Nath Jha and U. section Prasad for the Respondents Nos. 2 8 in WP Nos. 111, 2 7 in 154, 2 6 in 610 611, 2 4, 7 & 8 in 661, 2 8 in 180, 2 6, 10 12 in 270 271, 2 6 and 10 13 in 599, 2 7 in 571 574, 2 7, 14 15, 17 20 & 23 in 603, 2 7 in 605, 3 8, 12, 13, 16 18 in 335, 2 6 in 687 692, 2 6 in 635 637, 2 6 in 352, 2, 6, 7 & 10 in 626, 2 5, 11 13 in 541, 6 8 in 543, 2 6 in 758/77, 2 7, 13, 14 & 16 in 257, 2 6 in 220 and 226, 2 6, 13, 14 in 205 210, 2 7 in 600, 2 6 in 638 639, 2, 4 to 10 in 403/77.
Mr. P. section Khera for Intervener No. 1 in WP.
111/77.
section K. Verma for the Intervener No. 2 in WP.
111/77.
A. P. Chatterjee and G. section Chatterjee for Respondents 2 & 6 in WPs.
150 151 & 2 to 6 in 396 398/77.
M. P. Jha for the Petitioner in WP.
No. 758/77.
1056 The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is a group of 61 Writ Petitions under article 32 of the Constitution challenging the validity of the Coal Mines (Nationalisation) Amendment Act 67 of 1976, on the ground that it is violative of the provisions of articles 14, 19(1)(f), 19(1) (g) and 31 of the Constitution.
For understanding the basis of that challenge, it will be enough to refer to the broad facts of two representative groups of petitions.
The facts of writ petitions 270 and 271 of 1977 are, by and large, typical of cases in which the petitioners claim to be lessees of coal mines, while the facts of writ petition 257 of 1977 are typical of cases in which the petitioners claim to be lessees of composite mines containing alternate seems of coal and fireclay.
Most of the facts are undisputed and only a few of them are in controversy.
In writ petitions 270 and 271 of 1977, petitioner No. 1 claims to be the sole proprietor of 'S.D. Coal Company ' which is engaged in coal business and coal mining operations.
Petitioner No. 2 is said to be the agent of the company.
Both the surface and underground rights in Mouza Bundu in the District of Hazaribagh, Bihar, previously belonged to the Raja of Ramgarh from whom or whose successors in interest, the South Karanpura Coal Co. Ltd. appears to have obtained a lease of 242 Bighas of coal bearing lands in Mouza Bundu, called the 'Bundu Colliery '.
After the enactment of the Bihar Land Reforms Act 30 of 1950, all rights of tenure holders landlords and Zamindars, including the rights in mines and minerals, vested in the State of Bihar but, by virtue of section 10 of that Act, subsisting leases of mines and minerals in any estate or tenure became leases under the State Government.
It is alleged that on 12th June, 1975 the South Karanpura Coal Co. Ltd. entered into an agreement with the section D. Coal Company or prospecting, developing, raising and selling coal from the Bundu Colliery and that on the strength of that agreement, petitioner No. 1 was put in possession of the entire area of 242 Bighas of coal bearing land.
The section D. Coal Company is stated to have made large investments in the colliery and to have started paying rents and royalty to the State of Bihar.
The petitioners have cited various facts and figures in support of their contention that they have been in working possession of the coal mine area in question and that they were entitled to remove nearly 30,000 tonnes of coal raised by them at a heavy cost.
It appears that in a proceeding under section 144 of the Criminal Procedure Code, the Sub divisional Magistrate (Sadar), Hazaribagh, had made the rule absolute against the South Karanpura Coal Co. Ltd. as well as the section D. Coal Company, on the ground that 1057 the State Government had taken over the Bundu Colliery.
But, in C.R. Case No. 18318(W) of 1975, the High Court of Calcutta is stated to have set aside the order of the State Government cancelling the lease of petitioner 1 in respect of the Bundu Colliery.
Since that lease stands terminated under the Coal Mines (Nationalisation) Amendment Act 1976, the petitioners have filed writ petitions to challenge the validity of that Act.
On the factual aspect, the contention of the State of Bihar is that the lease of the Bundu Colliery which was held by M/s South Karanpura Coal Co. Ltd. was terminated by the Bihar Government on November 24, 1975 on account of the violation of Rule 37 of the Mineral Concession Rules, 1960 and that, actual possession of the colliery was taken by the State Government on November 26, 1975 prior to the coming into force of the Amendment Act of 1976.
In writ petition No. 257 of 1977, the petitioner Nirode Baran Banerjee made an application dated September 17, 1966 for the grant of a mining lease in respect of fireclay covering an area of 1640.60 acres of the Hesalong Colliery.
On September 19, 1966 he made a similar application in respect of the same area, for a coal mining lease.
These applications were deemed to have been rejected since the State Government did not pass any order thereon within the prescribed period.
In a Revision application preferred by the petitioner, the Central Government directed the State Government to consider the petitioner 's application for the grant of a mining lease in respect of fireclay.
The dispute relating to the petitioner 's application for a coal mining lease was brought to the Supreme Court, as a result of which the Central Government on April 1, 1972 directed the State Government to grant a coal mining lease to the petitioner.
On October 17, 1973 a formal lease was executed by the State of Bihar in favour of the petitioner in respect of both coal and fireclay.
The lease was registered on October 18.
According to the petitioner, the Hesalong Colliery in respect of which he holds the mining lease for coal and fireclay is situated in an interior area of the hilly portion of the District of Hazaribagh which has its own peculiar nature, trait and character.
The reserves of coal in the area are said to be in isolated small pockets and are not sufficient for scientific or economical development in a co ordinated and integrated manner.
The coal is ungraded and is not required to be transported by rail.
On the composite nature of the mine, the petitioner has made a specific averment in paragraph 6 of his writ petition to the following effect: 1058 The coal and fireclay deposits in the said area are so mixed up that one cannot work either for extraction of coal or for extraction of fireclay without disturbing each of the said two minerals.
The deposits are such that at one layer there is coal, the next layer is fireclay, the other layer is coal, the next layer is again fireclay and so on.
In paragraph 15 of his writ petition the petitioner has stated that in the Hesalong Mines, the deposit of fireclay is spread over the entire area of 1640.60 acres in the first layer and just beneath that, there is a deposit of coal in the second layer, so on and so forth.
According to the petitioner, it is absolutely impossible to carry on mining operations in coal without disturbing the fireclay and any such disturbance and inadvertent extraction of either coal or fireclay by different lessees, if the composite lease is split up, will amount to unauthorise mining.
The petitioner contends that he employs about 9,000 workers, has invested a huge amount for making the colliery workable and that a large amount of coal, which was lying exposed and unprotected, was ready for despatch.
Since his composite lease too was in jeopardy under the Amendment Act, he filed a writ petition in this Court to challenge the validity of the Act, contending in addition that the Act is not applicable to composite mines having alternate layers of fireclay and coal.
Some of the petitioners had filed writ petitions in the High Courts under article 226 of the Constitution challenging the validity of the Amendment Act of 1976.
Rules were issued in those petitions and interim orders were passed under which the status quo was maintained on certain terms and conditions.
After the passing of the 42nd Constitution Amendment Act, the High Courts became incompetent to grant any relief in those petitions whereupon, writ petitions were filed in this Court.
The petitions were argued on behalf of the petitioners by Shri A. K. Sen, Shri H. M. Seervai, Shri Y. section Chitale, Shri B. K. Sinha, Shri D. Goburdhan and Shri A. K. Nag.
The Attorney General argued in support of the validity of the impugned Act and so did the Solicitor General, appearing on behalf of the Union of India.
Shri Lal Narain Sinha and Shri A. P. Chatterjee argued respectively on behalf of the State of Bihar and the State of West Bengal.
Shri P. section Khera and Shri section K. Verma appeared on behalf of the interveners.
Before examining the contentions advanced before us by the various learned counsel, it will be useful to trace briefly the history of laws bearing on the working of mines and exploitation of minerals, 1059 the taking over of management and the nationalisation of mines and finally the termination of certain leases under the impugned Act.
According to "India 1976" (Publications Division, Ministry of Information and Broadcasting, Government of India), coal mining was first started at Raniganj, West Bengal, in 1774.
Coal is an important mineral as a source of energy and in India it constitutes a prime source of energy.
On the attainment of independence, the importance of coal to industrial development was realised by the Planners and the problems of the coal industry were identified by the Planning Commission in its report on the First Five Year Plan.
The Fifth Plan provided for a production target of 13.5 million tonnes of coal by 1978 79, which amounted to an increase of 5.7 million tonnes from the level of production of 7.79 million tonnes at the end of the Fourth Five Year Plan.
In 1950, after coal mining was stepped up, the production was 32 million tonnes.
In 1974 75 it reached a record figure of 88.4 million tonnes.
The overall reserves of coal, both coking and non coking were estimated in 1976 at 8,095 crore tonnes.
But, howsoever high the coal reserves may be, they are not inexhaustible, which underlines the need for a planned development of the natural resources.
The reckless and unscientific methods of mining which were adopted by most of the colliery owners without regard to considerations of conservation of the mineral and safety and welfare of workers led the Parliament to pass various legislations on the subject in the light of its accumulated experience.
The coking coal mines were nationalised in 1972 and the non coking coal mines were nationalised in the following year.
The production of coal in the country is now almost completely controlled by the public sector with the exception of isolated pockets wherein reserves are not sufficient for scientific and economical development and the production is consumed locally.
The only important mines which are not nationalised are the captive coking coal mines of the two private sector Steel Companies coking coal being a vital ingredient in the production of Steel.
The production of coal in the public sector is organised through three companies: the Coal Mines Authority Ltd., the Bharat Coking Coal Ltd., and the Singareni Collieries Company Ltd. A holding company, Coal India Limited, was formed in 1975 incorporating the Coal Mines Authority, the Bharat Coking Coal and the Coal Mines Planning and Design Institute as separate Divisions, besides other subsidiaries.
Entry 23 List II, Schedule VII of the Constitution read with article 246(3) confers legislative power on the State legislatures in respect of 1060 "Regulation of mines and mineral development" but that power is "subject to the provisions of List I with respect to regulation and development under the control of the Union".
Entry 54 List I enables Parliament to acquire legislative power in respect of "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".
Entry 24 List II relates to "Industries subject to the provisions of entries 7 and 52 of List I".
Entry 7, List I, relates to Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war.
Entry 52, List I, enables Parliament to acquire legislative power in respect of "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest".
The Industries (Development and Regulation) Act, 65 of 1951, which came into force on May 8, 1952 contains a declaration in section 2 that it was expedient in the public interest that the Union should take under its control the industries specified in the First Schedule.
Item 2(1) of the First Schedule comprises 'coal, lignite, coke and their derivatives ' under the heading 'Fuels '.
The Act provides for the establishment of a Central Advisory Council and Development Councils, registration and licensing of industrial undertakings, the assumption of management or control of industrial undertakings by the Central Government control of supply, distribution and price of certain articles, etc.
The Mines Act, 35 of 1952, which came into force on July 1, 1952, was passed by the Parliament in order to amend and consolidate the law relating to the regulation of labour and safety in mines.
That Act was evidently passed in the exercise of power under Entry 55, List I, "Regulation of labour and safety in mines and oil fields".
The Mines and Minerals (Regulation and Development) Act, 67 of 1957, which came into force on June 1, 1958 was passed in order to provide for the regulation of mines and the development of minerals under the control of the Union.
Section 2 of that Act contains a declaration that it was expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act.
The Act provides, inter alia, for general restrictions on undertaking prospecting and mining operations, the procedure for obtaining prospecting licences or mining leases in respect of lands in which the minerals vest in the Government, the rule making power for regulating the grant of prospecting licences and mining leases, special powers of 1061 Central Government to undertake prospecting or mining operations in certain cases, and for development of minerals.
There was a lull in legislative activity in regard to the enactment of further regulatory measures for controlling mines and minerals.
The Coking Coal Mines (Emergency Provisions) Ordinance, 12 of 1971, was passed on October 16, 1971, It was replaced by the Coking Coal mines (Emergency Provisions) Act, 64 of 1971, which received the President 's assent on December 23, 1971 but was given retrospective operation from the date of the Ordinance.
The Act was passed to provide for the taking over, in the public interest, of the management of coking coal mines and coke oven plants, pending nationalisation of such mines and plants.
By section 3 (1), the management of all coking coal mines vested in the Central Government from the appointed day October 17, 1971.
Section 6(1) provided that every owner of coking coal mine shall be given by the Central Government an amount, in cash, for vesting in it, under section 3, the management of such mine.
Such amount was to be calculated in accordance with the provisions of section 6(2).
The , 36 of 1972, was passed in order, inter alia, to provide for the acquisition and transfer of the right, title and interest of the owners of the coking mines and coke even plants.
Sections 30 and 31 of that Act dealing respectively with penalties, and offences by companies came into force at once but the remaining provisions were deemed to have come into force on May 1, 1972.
Section 3(c) defines "coking coal mine" to mean "a coal mine in which there exists one or more seams of coking coal, whether exclusively or in addition to any seam of other coal".
By section 4(1) the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in, the Central Government, free from all incumbrances.
By section 4(2), after the appointed day, that is May 1, 1972 if any other coal mine was found to contain coking coal the provisions of the were to apply to such mine until it was nationalised by an appropriate legislation.
By section 6(1), the Central Government becomes the lessee of the State Government where the rights of the owner under any mining lease granted in relation to a coking coal mine by the State Government or any other person, vest in the Central Government under section 4.
Section 7(1) empowers the Central Government to direct that the right, title and interest of 1062 the owners in relation to coking coal mines or coke oven plants shall vest in a government company.
Sections 10 and 11 of the Act provide for payment of the amounts to owners of the coking coal mines and coke oven plants for the vesting of their right, title and interest in the Central Government.
By an Amendment Act, 56 of 1972, which came into force on September 12, 1972, section 4A was added to the .
That section provides for premature termination of mining leases and the grant of fresh leases to Government companies or Corporations owned or controlled by Government.
The Coal Mines (Taking over of Management) Act, 15 of 1973, which received the assent of the President on March 31, 1973 was given retrospective effect from January 30, 1973 except section 8(2) which came into force at once.
The Act was passed in order "to provide for the taking over, in the public interest, of the management of coal mines, pending nationalisation of such mines, with a view to ensuring rational and co ordinated development of coal production and for promoting optimum utilisation of the coal resources consistent with the growing requirements of the country, and for matters connected therewith or incidental thereto.
" Section 2(b) of the Act defines a "coal mine" to mean a mine "in which there exists one or more seams of coal." Section 3(1) provides that on and from the appointed day (that is, January 31, 1973) the management of all coal mines shall vest in the Central Government.
By section 3(2), the coal mines specified in the Schedule shall be deemed to be the coal mines the management of which shall vest in the Central Government under sub section (1).
Under the proviso to section 3(2), if, after the appointed day, the existence of any other coal mine comes to the knowledge of the Central Government, it shall by a notified order make a declaration about the existence of such mine, upon which the management of such coal mine also vests in the Central Government and the provisions of the Act become applicable thereto.
Section 3(5) casts an obligation on every person in charge of the management of a coal mine, immediately before the date on which the Act received the assent of the President, to intimate the Central Government within 30 days from the said date the name and location of the mine as well as the name and the address of the owner, if the mine is not included or deemed to be included in the Schedule.
All contracts providing for the management of any coal mine made before the appointed day between the owner of the mine and any per 1063 son in charge of the mine and any person in charge of the management thereof are to be deemed to have been terminated on the appointed day, under section 4, Section 6(1) empowers the Central Government to appoint Custodians for the purpose of taking over of the management of the mines.
Section 7(1) provides that every owner of a coal mine shall be given by the Central Government an amount in cash for the vesting in it under section 3, of the management of such mine.
Section 18(1)(a) excludes from the operation of the Act any coal mine owned, managed or controlled by the Central Government, or by a Government Company or by a corporation which is owned, managed or controlled by the Government.
Clause (b) of section 18(1) also excludes from the operation of the Act a coal mine owned by or managed by a company engaged in the production of iron and steel.
The , 26 of 1973, was given retrospective operation with effect from May 1, 1973 except sections 30 and 31 which came into force at once.
This Act was passed, "to provide for the acquisition and transfer of the right, title and interest of the owners in respect of the coal mines specified in the Schedule with a view to re organising and reconstructing such coal mines so as to ensure the rational, co ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country, in order that the ownership and control of such resources are vested in the State and thereby so distributed as best to subserve the common good, and or matters connected therewith or incidental thereto.
" Section 2(b) defines a coal mine in the same way as the corresponding provision of the Management Act viz., a mine "in which there exists one or more seams of coal." Section 3(1) provides that on the appointed day (that is, May 1, 1973) the right, title and interest of the owners in relation to the coal mines specified in the Schedule shall stand transferred to, and shall vest absolutely in the Central Government free from all incumbrances.
Section 4(1) provides that where the rights of an owner under any mining lease granted, or deemed to have been granted, in relation to a coal mine, by a State Government or any other person, vest in the Central Government under section 3, the Central Government shall, on and from the date of such vesting, be deemed to have become the lessee of the State Government or such other person, as the case may be, in relation to such coal mine as if a mining lease in relation to such coal mine had been granted to the Central Government.
The period of such lease 1064 is to be the entire period for which the lease could have been granted by the Central Government or such other person under the Mineral Concession Rules and thereupon all the rights under the mining lease granted to the lessee are to be deemed to have been transferred to, and vested in, the Central Government.
By section 4(2), on the expiry of the term of any lease referred to in sub section (1), the lease, at the option of the Central Government, is liable to be renewed on the same terms and conditions on which it was held by the lessor for the maximum period for which it could be renewed under the Mineral Concession Rules.
Section 5(1) empowers the Central Government under certain conditions to direct by an order in writing that the right, title and interest of an owner in relation to a coal mine shall, instead of continuing to vest in the Central Government, vest in the Government company.
Such company, under section 5(2), is to be deemed to have become the lessee of the coal mine as if the mining lease had been granted to it.
By section 6(1), the property which vests in the Central Government or in a Government company is freed and discharged from all obligations and incumbrances affecting it.
The mortgagees and other holders of incumbrances are required by section 6(2) to give intimation thereof to the Commissioner within the prescribed time.
Section 7(1) provides that the Central Government or the Government company shall not be liable to discharge any liability of the owner, agent, manager or managing contractor of a coal mine in respect of any period prior to the appointed day.
Section 8 requires that the owner of every coal mine or group of coal mines specified in the second column of the Schedule shall be given by the Central Government in cash and in the manner specified in Chapter VI, for the vesting in it under section 3 of the right, title and interest of the owner, an amount equal to the amount specified against it in the corresponding entry in the fifth column of the Schedule.
By section 11(1), the general superintendance, direction, control and management of the affairs and business of a coal mine, the right, title and interest of an owner in relation to which have vested in the Central Government under section 3, shall vest in the Government company or in the Custodian as the case may be.
For the purpose of disbursing the amount payable to the owner, the Central Government is required by section 17(1) to appoint a Commissioner of Payments.
By section 18(1), the Central Government shall within thirty days from the specified date, pay, in cash, to the Commissioner for payment to the owner of a coal mine, an amount equal to the amount specified against the coal mine in the Schedule and also such sums as may be due to the owner under section 9.
Section 26(1) provides that if out of the monies paid to the Commissioner, any balance is left after meeting the liabilities of all the secured and un 1065 secured creditors of the coal mine, he shall disburse the same to the owner.
The Coal Mines (Nationalisation) Amendment Ordinance which was promulgated on April 29, 1976 was replaced on May 27, 1976 by the Coal Mines (Nationalisation) Amendment Act, 67 of 1976.
The Amendment Act consists of five sections by which certain amendments were introduced into the Principal Act, namely, the , 26 of 1973.
The Statement of objects and Reasons of the Nationalisation Amendment Act reads thus: "After the nationalisation of coal mines, a number of persons holding coal mining leases unauthorisedly started mining of coal in the most reckless and unscientific manner without regard to considerations of conservation, safety and welfare of workers.
Not only were they resorting to slaughter mining by superficial working of outcrops and thereby destroying a valuable national asset and creating problems of water logging fires, etc.
for the future development of the deeper deposits, their unsafe working also caused serious and fatal accidents.
They were making larger profits by paying very low wages, and by not providing any safety and welfare measures.
Thefts of coal from adjacent nationalised mines were also reported after the commencement of these unauthorised operations which had shown an increasing trend of late.
Areas where illegal and unauthorised operations were carried on, were without any assessment of reserves in regard to quality and quantity of coal which could be made available after detailed exploration work was undertaken and results analysed.
No scientific exploitation of these deposits could be undertaken in the nationalised sector without these details.
It was, therefore, considered that it would not be appropriate either to nationalise these unauthorisedly worked mines after taking them over under the Coal Mines (Taking Over of Management) Act, 1973 or to get the concerned mining leases prematurely terminated and regranted to Government Companies under the Mining and Minerals (Regulation and Development) Act, 1957.
In view of the policy followed by the Central Government that the Coal Industry is to be in the nationalised sector, it was decided that the Coal Mines Nationalisation Act, 1973 should be enacted to provide for termination of all privately held coal leases except those held by privately owned steel companies, so that it may be possible for the Central Government, Government company or Corporation to take 1066 mining leases where necessary, after the necessary exploration has been made as to the extent of the deposits of coal, etc".
Sections 2 and 3 of the Nationalisation Amendment Act were brought into operation with effect from April 29, 1976.
By section 2 of the Amendment Act a new section, section 1A, was introduced under Sub section (1) of which it was declared that it was expedient in the public interest that the Union should take under its control the regulation and development of coal mines to the extent provided in subsections 3 and 4 of section 3 of the Nationalisation Act and subsection 2 of section 30.
By sub section 2 of section 1A, the declaration contained in sub section (1) was to be in addition to and not in derogation of the declaration contained in section 2 of the .
By section 3 of the Amendment Act a new sub section, namely, sub section 3, was introduced in section 3 of the principal Act.
Under clause (a) of the newly introduced sub section 3 of section 3, on and from the commencement of section 3 of the Amendment Act no person other than (i) the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government, or (ii) a person to whom a sub lease, referred to in the proviso to clause (c) has been granted by any such Government, company or corporation, or (iii) a company engaged in the production of iron and steel, shall carry on coal mining operation, in India, in any form.
Under clause (b) of sub section 3, excepting the mining leases granted before the Amendment Act in favour of the Government, company or corporation referred to in clause (a), and any sub lease granted by any such Government, company or corporation, all other mining leases and sub leases in force immediately before such commencement shall in so far as they relate to the winning or mining of coal, stand terminated.
Clause (c) of the newly introduced sub section 3 of section 3 provides that no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation referred to in clause (a).
Under the proviso to clause (c), the Government, the company or the corporation to whom a lease for winning or mining coal has been granted may grant a sublease to any person in any area if, (i) the reserves of coal in the area are in isolated small pockets or are not sufficient for scientific and economical development in a co ordinated and integrated manner, and (ii) the coal produced by the sub lessee will not be required to be transported by rail.
By sub section 4 of section 3, where a mining lease stands terminated under sub section 3, it shall be lawful for the Central Government or a Government company or corporation owned 1067 or controlled by the Central Government to obtain a prospecting licence or mining lease in respect of the whole or part of the land covered by the mining lease which stands terminated.
Section 4 of the Amendment Act introduces an additional provision in Section 30 of the Principal Act by providing that any person who engages, or causes any other person to be engaged, in winning or mining coal from the whole or part of any land in respect of which no valid prospecting licence or mining lease or sub lease is in force, shall be punishable with imprisonment for a term which may extend to two years and also with fine which may extend to ten thousand rupees.
Section 5 of the Nationalisation Amendment Act repeals the Coal Mines (Nationalisation) Amendment Ordinance, 1976.
As stated at the beginning of this Judgment, we are concerned in these writ petitions to determine the validity of the Coal Mines Nationalisation (Amendment) Act, 67 of 1976, to which we will refer as 'The Nationalisation Amendment Act '.
Shri Seervai, who appears on behalf of the petitioners in writ petition No. 257 of 1977, challenges the legislative competence of the Parliament to enact the Nationalisation Amendment Act.
Article 246 (1) confers upon the Parliament, notwithstanding anything contained in clauses 2 and 3 of that Article, the exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule, called the 'Union List '.
Clause 2 of Article 246 deals with the power of the Parliament and the State Legislatures to make laws with respect to any of the matters enumerated in the Concurrent List, while clause 3 deals with the power of the State Legislatures to make laws with respect to any of the matters enumerated in the State List.
The relevant entries in List I are Entries 52 and 54 which read thus: Entry 52: Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
Entry 54: Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
Entry 24 of the State List reads thus: Entry 24: Industries subject of the provisions of entries 7 and 52 of List I. 1068 We are not concerned here with Entry 7 of List I which relates to 'Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war '.
Shri Seervai 's argument runs thus: (a) Laws made in the exercise of power conferred by Entry 54 must stand the test of public interest because the very reason for the Parliament acquiring power under that entry is that it is in public interest that the regulation of mines and minerals should be under the control of the Union.
In other words, Entry 54 confers a legislative power which is purposive, that is to say, any law made in the exercise of the power under Entry 54 must be designed to secure the regulation and development of coal mines in public interest or else it must fail.
The Nationalisation Amendment Act is not such a law which Parliament can pass under Entry 54 because, that Act not only terminates all leases but it destroys the contracts of service of thousands of workmen, and indeed it destroys all other contracts and all securities for moneys lent without even so much as making a provision for priorities for the payment of debts.
Since the Nationalisation Amendment Act terminates all leases, it is a complete negation of the integrated scheme of taking over the management of mines, acquisition of the rights of lease holders and the running of the mines.
(b) The word 'Regulation ' in Entry 54 does not include 'Prohibition '.
'Regulation ' should not also be confused with the expression 'Restrictions ' occurring in Article 19(2) to (6) of the Constitution.
In the very nature of things, there cannot be a power to prohibit 'the regulation and development of mines and minerals '.
Section 3(4) inserted by the Nationalisation Amendment Act imposes no obligation on the Central Government or any other authority to obtain a mining lease and work the mines, the leases in respect of which stands terminated under the Act.
The words "it shall be lawful" for the Central Government to obtain a lease are words of discretionary power which create no obligation.
They only enable the Central Government to obtain a lease, making something legal and possible for which there would otherwise be no 1069 right or authority to do.
Section 3 (4) does not confer a power coupled with a duty; it merely confers a faculty or power.
No Court can by a Writ of Mandamus or otherwise compel the Central Government to obtain a lease of coal mine and to run it under any of the provisions of the Nationalisation Amendment Act.
(c) Where the Legislative power is distributed among different legislative bodies, the Legislature may transgress its legislative power either directly or manifestly, or covertly or indirectly.
In the instant case, the exercise of power by the Parliament is colourable because although in passing the Nationalisation Amendment Act it purported to act within the limits of its legislative power, in substance and in reality it transgressed that power, the transgression being veiled by what appears on proper examination to be a mere pretence or disguise.
(d) In order to tear off the veil or disguise and in order to get at the substance of the law behind the form, the Court must examine the effect of the legislation and take into consideration its object, purpose and design, Where the legislative entry is purposive, like Entry 54 of the Union List, it is the object or purpose of the legislation which requires consideration.
The purpose for which the Parliament is permitted to acquire legislative power of Regulation and Development of mines must dictate the nature of law made in the exercise of that power because public interest demands that power.
Under the provisions of the Nationalisation Amendment Act, not only is there no obligation on the Central Government to run a mine, but there is no obligation imposed upon it even to carry out prospecting or investigation in order to decide whether a particular mine should be worked at all.
Section 3(4) merely authorises the Central Government to apply for "a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands determined".
A close examination of the Act thus discloses that far from providing for regulation and development of coal mines, it totally prohibits all mining activity even if the State Government wants to run a mine.
It does 1070 not impose prohibition as a step towards running the mines since there is neither any obligation to carry out the prospecting or investigation nor to run the mines.
(e) The Nationalisation Amendment Act runs directly counter to the whole policy of the of 1973, to acquire and run the mines.
The Parent Act becomes a dead letter in regard to several of its provisions ass a result of the amendment Act.
It only adopts a colourable device to amend the Nationalisation Act while completely negativing it in fact.
The Act therefore lacks legislative competence and is, in the sense indicated, a colourable piece of legislation.
(f) Article 31(A)(1)(e) only lifts a restriction on the legislative competence in so far as violation of fundamental rights is concerned.
The most benign motive cannot make a law valid if the legislative competence is lacking.
In support of his submission that the provisions of the Nationalisation Amendment Act are not conceived in public interest and therefore they transgress the limitations of Entry 56, List I, learned counsel relies on the circumstance that whereas the Coal Mines Management Act and the Coal Mines Nationalisation Act of 1973 contain elaborate preambles, the Amendment Act contains no preamble setting out the mischief to be remedied or the benefit to be secured, for which the parent Act had failed to provide.
At first blush, it is said, it would appear that the preamble to the parent Act can be read into the Nationalisation Amendment Act but that is impermissible since that preamble provides for acquisition and running of the mines and can have no application to an Act which provides for termination simpliciter of all mining leases.
The preambles to the Management Act and the Nationalisation Act are said to be significant in that they show that those Acts were enacted in public interest with a view to rational and co ordinated development of coal production and for promoting the optimum utilisation of coal production consistently with the growing requirements of the country.
Learned counsel has also compared and contrasted the provisions of these two Acts with the provisions of the Nationalisation Amendment Act for making good his point that the latter serves no public interest since it merely terminates all existing leases.
The contrast, it is argued, is also provided by section 4A of the Mines and Mineral Regulation and Development Act 1957 which, while providing for premature termination of mining leases, requires that 1071 such termination has to be followed by the granting of a fresh mining lease so that the mines will continue to work.
Reliance is placed by counsel on the decision of this Court in K. C. Gajapati Narayan Deo & Ors.
vs The State of Orissa to show how although the legislature in passing an Act purports to act within the limits of its legislative power, in substance and in reality it can transgress that power, the transgression being veiled by what appears on proper examination to be a mere pretence or disguise.
Attention is then drawn to the decision in Attorney General of Alberta vs Attorney General of Canada as showing that in order to tear off the veil or disguise or in order to get at the substance of the law behind the form, the court can examine the effect of the legislation and take into consideration its object, purpose or design.
In support of the submission that the word regulation in Entry 54 does not include prohibition, reliance is placed on the decision of the Federal Court in Bhola Prasad vs The King Emperor wherein after setting out two decisions of the Privy Council in Municipal Corporation of City of Toronto vs Virgo and Attorney General for Ontario vs Attorney General for Canada in which it was held that 'regulation ' did not include 'prohibition ', Gwyer, C.J. Observed that he saw no reason to differ from the view expressed in those cases.
The central theme of these diverse points is only one: that the laws made in the exercise of power conferred by Entry 54, List I, must stand the test of public interest since the very reason for the Parliament acquiring power under that Entry is that it is in the public interest that the regulation of mines and mineral development should be under the control of the Union.
The contention is that since the Nationalisation Amendment Act does not impose upon the Government the duty to run the mines which are taken over or even to carry out prospecting and investigation but simply provides for the termination of mining leases, the Act is not in public interest.
What is in public interest is the regulation and development of coal mines, not total prohibition of their working.
On a careful consideration of this argument which was made plausible in its presentation, we see no substance in it.
The learned Attorney General and the learned Solicitor General have drawn our attention to various facts and circumstances and to the provisions of various Acts including the Nationalisation Amendment Act which make it impossible to hold that the provisions of that Act are a mere 1072 facade for terminating mining leases without any obligation in the matter of regulation of mines and mineral development.
Granting that Entry 54, List I is purposive since it qualifies the power to pass a law relating to "Regulation of Mines and Mineral Development" by the addition of a restrictive clause, "to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest", the provisions of the Nationalisation Amendment Act show that they are designed to serve progressively the purpose of Entry 54.
The Nationalisation Amendment Act, as its very title shows, is an amending Act.
It amended the , 26 of 1973.
One must primarily have regard to the object and purpose of that Act in order to find out whether the Nationalisation Amendment Act destroys the structure of that Act and is a mere pretence for acquiring new rights without providing for payment of any amount for such acquisition.
The was passed in order to provide for the acquisition and transfer of the right, title and interest of the owners in respect of the Coal mines specified in the Schedule to that Act.
This was done with a view to reorganising and reconstructing such coal mines so as to ensure the rational, co ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country.
The high purpose of that Act was to ensure that the ownership and control of such resources are vested in the State and thereby so distributed as best to subserve the common good.
In order to achieve that purpose, the Nationalisation Act provides by section 3(1) that: On the appointed day, the right, title and interest of the owners in relation to the coal mines specified in the Schedule shall stand transferred to, and shall vest absolutely in, the Central Government free from all incumbrances.
The appointed day is May 1, 1973.
For the removal of doubts it was declared by section 3(2) that: If, after the appointed day, the existence of any other coal mine comes to the knowledge of the Central Government, the provisions of the Coal Mines (Taking over of Management) Act, 1973, shall until that mine is nationalised by an appropriate legislation, apply to such mine.
1073 By section 4, the Central Government became the lessee of the scheduled coal mines while, section 5 empowers it to transfer its leasehold rights to a Government company.
Chapter II of the Coal Mines (Nationalisation Act deals with acquisition of the rights of owners of coal mines, Chapter III with payment of amounts to owners of coal mines, Chapter IV with management of coal mines, Chapter V lays down provisions relating to employees of coal mines, Chapter VI contains provisions governing the payments of amounts to be made by the Commissioner of Payments and the last Chapter, Chapter VII, contains miscellaneous provisions.
We have already set out the provisions of the Nationalisation Amendment Act in extenso, a little before enumerating the various points made out by Shri Seeravai during the course of his argument.
It will now be enough to say by way of a summing up of the provisions of the Nationalisation Amendment Act that: (1) by section 3(3) (a) of the which was introduced by the Nationalisation Amendment Act, no person other than those mentioned in clauses (i) to (iii) can carry on coal mining operations after April 29, 1976, being the date on which section 3 of the Nationalisation Amendment Act came into force; (2) by section (3)(3)(b) all mining leases and sub leases stood terminated except those granted before April 29, 1976 in favour of the Central Government, a Government company or corporation owned, managed or controlled by the Central Government; (3) section (3)(c) prohibits the granting of a lease for winning or mining coal in favour of any person other than the Government, a Government company or a corporation of the above description provided that a sub lease could be granted by these authorities to any person if the two conditions mentioned in the proviso are satisfied; and (4) when a mining lease stands terminated under section 3(3), "it shall be lawful" for the Central Government or the Government company or the corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands terminated.
Section 4 of the Nationalisation Amendment Act introduced an additional penal provision in the parent Act.
We are unable to appreciate the argument so meticulously woven that these provisions are a direct negation of the principles of the parent Act and that they destroy the integral scheme of taking over the management of mines, of acquiring the rights of lease holders and continuing to run the mines.
On the contrary, the Nationalisation Amendment Act is manifestly in furtherance of the object of nationalisation mentioned in the preamble to the parent Act and effec 1074 tuates the purpose mentioned in sections 3(1) and 3(2) of that Act by the addition of a new sub section, sub section (3), which terminates all coal mining leases and sub leases except those referred in sub section (3)(b).
The circumstance that the marginal note to section 3 and the title of Chapter II of the Nationalisation Act are not amended by the Nationalisation Amendment Act, despite the addition of a new sub section, is of little or no consequence.
That sub section is a logical extension of the scheme envisaged by the original sub sections (1) and (2) of section 3.
Besides, marginal notes to the sections of a statute and the titles of its chapters cannot take away the effect of the provisions contained in the Act so as to render those provisions legislatively incompetent, if they are otherwise within the competence of the legislature to enact.
One must principally have regard to the object of an Act in order to find out whether the exercise of the legislative power is purposive, unless, of course, the provisions of the Act show that the avowed or intended object is a mere pretence for covering a veiled transgression committed by the legislature upon its own powers.
Whether a particular object can be successfully achieved by an Act, is largely a matter of legislative policy.
The Nationalisation Amendment Act needs no preamble, especially when it is backed up by a statement of objects and reasons.
Generally, an amendment Act is passed in order to advance the purpose of the parent Act as reflected in the preamble to that Act.
Acquisition of coal mines, be it remembered, is not an end in itself but is only a means to an end.
The fundamental object of the Nationalisation Act as also of the Nationalisation Amendment Act is to bring into existence a state of affairs which will be congenial for regulating mines and for mineral development.
In regard to the scheduled mines, that purpose was achieved by the means of acquisition.
In regard to mines which were not included in the Schedule, the same purpose was achieved by termination of leases and sub leases and by taking over the right to work the mines.
Termination of leases, vesting of lease hold properties in the State Governments and the grant of leases to the Central Government or Government Companies are together the means conceived in order to achieve the object of nationalisation of one of the vital material resources of the community.
An infirmity in Shri Seervai 's argument is its inarticulate premise that mere acquisition of coal mines is the end of the Nationalisation Act.
It is also important to bear in mind while we are on the purposiveness of the Nationalisation Amendment Act that nothing contained in the later analogous Acts can be construed as in derogation of the principle enunciated in section 18 of the Mines and Minerals Regulation and (Development) Act, 67 of 1957, which provides that it 1075 shall be the duty of the Central Government to take all such steps as may be necessary for the conservation and development of minerals in India.
Therefore, even in regard to matters falling under the Nationalisation Amendment Act which terminates existing leases and makes it lawful for the Central Government to obtain fresh leases, the obligation of section 18 of the Act of 1957 will continue to apply in its full rigour.
As contended by the learned Solicitor General, section 18 contains a statutory behest and projects a purposive legislative policy.
The later Acts on the subject of regulation of mines and mineral development are linked up with the policy enunciated in Section 18.
Much was made by Mr. Seervai of the circumstance that the Nationalisation Amendment Act, While providing by section 3(4) that "it shall be lawful" for the Central Government, etc., to obtain a prospecting licence or a mining lease, did not impose an obligation on any one to work the mine of which the mining lease stood statutorily terminated.
No mandamus, it was urged, could therefore issue to compel, for example the Central Government to work any particular mine.
This argument overlooks that Entry 54 refers to two things: (1) regulation of mines and (2) mineral development.
It is true that the Entry is purposive, since the exercise of the power under Entry 54 has to be guided and governed by public interest.
But neither the power to regulate mines nor the power to ensure mineral development postulates that no sooner is a mining lease terminated by the force of the statute, than the Central Government must begin to work the mine of which the lease is terminated.
It is possible that after the Nationalisation Amendment Act came into force, there was a hiatus between the termination of existing leases and the granting of fresh ones.
But, the Nationalisation Amendment Act does not provide that any kind or type of mine shall not be developed or worked.
Conservation, prospecting and investigation, developmental steps and finally scientific exploitation of the mines and minerals is the process envisaged by the Nationalisation Amendment Act.
It is undeniable that conservation of minerals, which is brought about by the termination of existing leases and sub leases, is vital for the development of mines.
A phased and graded programme of conservation is in the ultimate analysis one of the most satisfactory and effective means for the regulation of mines and the development of minerals.
Learned counsel contended that the Nationalisation Amendment Act is destructive of the provisions of the parent Act.
This contention 1076 is wholly unjustified.
The destruction which the Nationalisation Amendment Act brings about is of the lease or the sub lease and not of its subject matter, namely, the mine itself.
In terminating the lease of a house one does not destroy the house itself.
It may be arguable that prohibiting the use of the house for any purpose whatsoever may, for practical purposes, amount to the destruction of the house itself.
But we cannot accept the contention that the Nationalisation Amendment Act contains provisions directed at prohibiting the working of mines, the leases in respect of which are terminated.
A simple provision for granting sub leases shows that the object of the Nationalisation Amendment Act is to ensure that no mine will lie idle or unexplored.
Interregnums can usefully be utilised for prospecting and investigation.
They do not lead to destruction of mines.
In fact, it is just as well that the Amendment Act does not require the new lessee to undertake an adventure, reckless and thoughtless, which goes by the name of 'scratching of mines ', which ultimately results in the slaughtering of mines.
Natural resources, howsoever large, are not inexhaustible, which makes it imperative to conserve them.
Without a wise and planned conservation of such resources, there can neither be a systematic regulation of mines nor a scientific development of minerals.
The importance of conservation of natural resources in any scheme of regulation and development of such resources can be seen from the fact that the Parliament had to pass in August 1974 an Act called the Coal Mines (Conservation and Development) Act, 28 of 1974, in order, principally, to provide for the conservation of coal and development of coal mines.
Section.
4(1) of that Act enables the Central Government, for the purposes of conservation of coal and for the development of coal mines, to exercise such powers and take or cause to be taken such measures as it may be necessary or proper or as may be prescribed.
By section 5(1), a duty is cast on the owners of coal mines to take such steps as may be necessary to ensure the conservation of coal and development of the coal mines owned by them.
While moving the Nationalisation Amendment Act in the Lok Sabha on May 17, 1976, the Minister of Energy said that: for proper scientific working of coal mines, you have to have the geological data; you have to have mine plans; you have to know the size of the coal reserves, the quantity of coal that can be mined; the quality of coal etc.
For this, the detailed exploration has to be undertaken.
It is only after all this is done that the experts can decide whether it will be economically viable and technically feasible technical feasibility comes first and then economic viability to 1077 mine the coal in that particular area.
No scientific exploration of coal is possible from these areas until all the facts are known, until investigation is done.
The nationalised sector cannot step in unless all this information is gathered.
(Lok Sabha Debates, 5th series, volume 61, May 17, 1976, columns 91 92.) Measures taken for judicious preservation and distribution of natural resources may involve restrictions on their use and even prohibition, upto a degree, of the unplanned working of the repositories of such resources.
We may in this connection refer usefully to a passage at page 383 of the First Five Year Plan: "Though a mining industry has been in existence in this country for about half a century, only a comparatively small number of mines are being worked in an efficient manner under proper technical guidance.
Many units are too small in size or too poorly financed for such working.
Lack of a conservation policy is also responsible for the present condition of the industry.
There is large wastage, especially in minerals of marginal grades, as these are either abandoned in the mines or thrown away on the mine dumps.
Ways and means must be devised for the mining and recovery of these low grade materials.
Ores which it is not possible to work economically under normal conditions should be left in the mines so that they may be extracted at a later date without serious loss.
The mine dumps all over the country have to be carefully examined and sampled so that their valuable mineral content may be recovered by methods of beneficiation now available.
It should be a rule that selective mining of high grade minerals alone should not be undertaken and that all grades should be worked and wherever possible, blended to produce marketable grades.
" It was observed in Attorney General for Ontario (supra) that a power to regulate assumes, naturally if not necessarily, the conservation of the thing which is to be made the subject of regulation.
This position does not militate against what was observed by Lord Davey in Virgo (supra) that "there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed".
In the former case, the Canada Temperance Act, 1886 was held ultra vires the Dominion as it purported to repeal the prohibitory clauses of a provincial Act, but its own provisions were held 1078 valid when duly brought into operation in any provincial area as relating to the peace, order, and good Government of Canada.
In Virgo the question turned on the scope of power to frame by laws and the decision of the Privy Council was that a statutory power conferred upon a municipal corporation to make by laws for 'regulating and governing ' a trade, "does not authorise the making it unlawful to carry on a lawful trade in a lawful manner".
It may be borne in mind that different considerations apply in the construction of power to frame by laws but even then, the Privy Council qualified the above statement of law by adding the clause, "in the absence of an express power of prohibition".
In support of his submission that under the Nationalisation Amendment Act there is no obligation on any person or authority to run a mine, Shri Seervai relies on a passage in Craies on Statute Law, 6th edition, page 284, to the following effect: Statutes passed for the purpose of enabling something to be done are usually expressed in permissible language, that is to say, it is enacted that 'it shall be lawful ', etc.
or that 'such and such a thing may be done '.
Prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative".
But the very passage, after enunciating this principle, refers to a decision in Julius vs Bishop of Oxford in which Lord Cairns said that though the words 'it shall be lawful ' are words making that legal and possible which there would otherwise be no right or authority to do and that though those words confer a faculty or power, still "there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so".
It seems to us clear, and we have discussed that aspect at length, that section 3(4) uses an enabling or permissive expression in order that regulation of mines and mineral development may be ensured after a scientific prospecting, investigation and planning.
It is doubt 1079 less that, in the language of Lord Cairns in Julius, there is something in the nature of the thing which the Nationalisation Amendment Act empowers to be done, something in the object for which it is to be done and something in the conditions under which it is to be done which couples the power conferred by the Act with a duty, the duty being not to act in haste but with reasonable promptitude depending upon the nature of the problem under investigation.
An obligation to act does not cease to be so merely because there is no obligation to act in an ad hoc or impromptu manner.
It is in the context of a conglomeration of these diverse considerations that one must appreciate why, in section 3(4) which was introduced by the Nationalisation Amendment Act, Parliament used the permissive expression "it shall be lawful".
Thus, a broad and liberal approach to the field of legislation demarcated by Entry 54, List I, an objective and practical understanding of the provisions contained in the Nationalisation Amendment Act and a realistic perception of constitutional principles will point to the conclusion that the Parliament had the legislative competence to enact the Nationalisation Amendment Act.
The argument which we have just disposed of is common to all the matters before us.
The contention to which we will now turn is limited in its application to composite mines which contain layers of coal and some other mineral, usually fireclay.
This branch of Shri Seervai 's argument relates to the construction of the , 26 of 1973, and the Nationalisation Amendment Act.
The argument is that leases of composite mines in which there are alternate seams of coal and fireclay do not fall within the scope of these Acts.
The pleadings in this behalf are full and complete in Writ Petition No. 257 of 1977 argued by Shri Seervai and they are tolerably adequate in a few other petitions.
It is expressly averred and not effectively traversed in Writ Petition 257 of 1977 that: the coal and fireclay deposits in the said area are so mixed up that one cannot work either for extraction of coal or for extraction of fireclay without disturbing each of the said two minerals.
The deposits are such that at one layer there is coal, the next layer is fireclay, the other layer is coal, the next layer is again fireclay and so on.
Nirode Baran Banerjee, who is the petitioner in that Writ Petition, holds a composite lease dated October 17, 1973 for mining coal as well as fireclay.
1080 It is urged by the learned counsel that the Nationalisation Amendment Act terminates mining leases in respect of coal only and that the law terminating leases for mining coal cannot apply to a mine which contains not only coal but fireclay also.
The totality of the submission on this point may be put thus: (a) Under Article 31(1) of the Constitution, no person can be deprived of his property without the authority of law.
Article 31A(1) which exempts the laws mentioned in clauses (a) to (e) from invalidity under Articles 14, 19 and 31 does not dispense with the necessity of the authority of law for depriving a person his property, because the opening words of Article 31A(1) are ". no law providing for . " matters mentioned in clauses (a) to (e) shall be deemed to be void as offending Articles 14, 19 and 31.
(b) The Nationalisation Amendment Act confers no authority to terminate a composite lease for mining coal and fireclay.
The right to mine fireclay is given to the petitioner by law and it can only be taken away by law.
(c) Though the Nationalisation Amendment Act does not in terms prohibit the petitioner from mining fireclay, the effect of the law in a practical business sense, is to prohibit the petitioner from mining fireclay and, therefore, the position is the same as though the Act had enacted the prohibition in express terms.
The Court must look at the direct impact of the law on this right of the party, and if that impact prohibits him from exercising his right, the fact that there is no express prohibition in the Act is immaterial, (d) The Nationalisation Amendment Act by making it punishable to mine coal, in substance and in a practical business sense, prohibits the petitioner from mining fireclay.
For this prohibition the Amendment Act does not provide, and therefore, there is no authority of law for it.
Coal and fireclay are two distinct minerals as shown by Schedule II to the , 67 of 1957, wherein item 1 is coal and item 15 is fireclay.
The dictionary meanings of coal and fireclay also show that they are two distinct minerals.
In support of these submissions Shri Seervai relies very strongly on the definition of 'coal mine ' in section 2(b) of the Coal Mines (Nationalisation Act, 26 of 1973, and the definition, by contrast, of 'coking coal mine ' in section 3(c) of the , 36 of 1972.
1081 These submissions are met by the learned Attorney General with the answer that if a mine has a seam of coal it is a coal mine within the meaning of section 2(b) of Act 26 of 1973, and that, for the purposes of that definition, it makes no difference whether the mine has seams of fireclay also.
The Attorney General says further that the definition of 'coking coal mine ' in section 3(c) of Act 36 of 1972 contains words of surplusage which ought rather to be ignored than be allowed to determine the scope of the definition contained in section 2(b) of Act 26 of 1973.
The contention, in other words, is that a coal mine is a mine in which there is at least one seam of coal, no matter whether there are seams therein of fireclay or any other mineral.
The learned Solicitor General contends that the authority of Law extends to whatever is the necessary consequence of that which is authorised.
In other words, authority to do a thing necessarily includes the authority to do all other things which are necessary for the doing of that which is authorised.
If law authorises the termination of coal mining leases, it must be taken to authorise whatever is necessarily incidental to and consequential upon it.
Therefore, composite leases cannot be excepted from the provisions of an Act which terminates coal mining leases.
Section 3(3) (a) introduced by the Nationalisation Amendment Act, it is contended, prohibits persons other than those mentioned in clauses (i) to (iii) from carrying on coal mining operation in any form.
If a person holding a composite lease can do fireclay mining without mining coal, he may do so; otherwise section 3(3) (a) is the authority of law to prevent him from mining fireclay.
In other words, according to the learned Solicitor General, the necessary implication of law is that though a composite lease for mining coal and fireclay may remain outstanding after the enactment of the Nationalisation Amendment Act, the lessee cannot work it, if it involves a coal mining operation.
The point raised by Shri Seervai is so nicely balanced that it is as difficult to reject it wholly as it is to accept it wholly.
The contrast in definitions favours him.
The , 26 of 1973, defines a coal mine by section 2(b) thus: "Coal mine" means a mine in which there exists one or more seams of coal.
If this definition is considered in isolation, the learned Attorney General could perhaps be right in his submission that any mine in which there is one seam of coal, at least one, is a coal mine.
The definition takes no account of whether there are seams of other minerals, and if so, how many, in the mine.
One seam of coal is enough to make a mine a coal mine.
For reasons which we will presently mention, it is not easy to 1082 stretch the definition as far as logic may take it, for that will produce the result that just one seam of coal at the roof of a mine or at its base will be enough to bring a mine within the definition contained in section 2(b).
The scheme of the Coal Nationalisation Acts on which Shri Seervai relies has a relevance of its own on this point.
The of 1972 and the of 1973 cover the whole field of 'Coal ' which was intended to be nationalised.
The titles of the two Acts and the various provisions contained therein show that what was being nationalised was three distinct categories of mines: mines containing seams of coking coal exclusively; mines containing seams of coking coal along with seams of other coal; and mines containing seams of other coal.
Though Parliament had power under Article 31A(1) (e) of the Constitution to terminate mining leases without payment of any compensation or 'amount ', it decided to nationalise coal mines on payment of amounts specified in the Schedules to the Nationalisation Acts of 1972 and 1973.
Besides, even when something apart from coking coal mines was acquired, namely, 'coke oven plants ', provision was separately made in section 11 of the Nationalisation Act of 1972, read with the 2nd Schedule, for payment of amounts to owners of coke oven plants.
Thus, whatever was intended to be acquired was paid for.
This scheme is prima facie inconsistent with the Parliament intending to acquire lease hold rights in other minerals like fireclay, without the payment of any amount.
Coupled with this is the unambiguous wording of section 3(3) (b) and section 3(3) (c) of the Nationalisation Act of 1973, which were introduced therein by section 3 of the Nationalisation Amendment Act.
Section 3(3)(b) says that excepting the mining leases and sub leases granted before the commencement of the Act in favour of or by certain bodies or authorities, all other mining leases and sub leases in force before such commencement, "shall in so far as they relate to the winning or mining of coal, stand terminated".
(emphasis supplied) Section 3(3)(c) provides that: "no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred in clause (a)".
(emphasis supplied).
These provisions carry the scheme of the Nationalisation Acts to their logical conclusion by emphasising that the target of those Acts is coal mines, pure and simple.
What stands terminated under 1083 section 3(3)(b) is certain mining leases and sub leases in so far as they relate to the winning or mining of coal.
The embargo placed by section 3(3)(c) is on the granting of leases for winning or mining coal to persons other than those mentioned in section 3(3)(a).
Since the definition of 'coal mine ' in section 2(b) of the has an uncertain import and the scheme of that Act and of the makes it plausible that rights in minerals other than coke and coal were not intended to be acquired under the two Nationalisation Acts, it becomes necessary to compare and contrast the definition of 'coal mine ' in section 2(b) of the Act of 1973 with the definition of 'coking coal mine ' in section 3(c) of the of 1972.
Section 3(c) of the latter Act says: " 'coking coal mine ' means a coal mine in which there exists one or more seams of coking coal, whether exclusively or in addition to any seam of other coal".
(emphasis supplied).
This definition justifies Shri Seervai 's argument that whereas in regard to coking coal mines, the existence of any seam of other coal was regarded as inconsequential, the existence of any seam of another mineral was not considered as inconsequential in regard to a coal mine.
The definition of coal mine in section 2(b) of the Act of 1973 scrupulously deleted the clause, "whether exclusively or in addition to" any other seam.
The same Legislature which added the particular clause in the definition of 'coking coal mine ' in the 1972 Act, deleted it in the definition of 'coal mine ' in the 1973 Act.
The position in regard to the coking coal mines is crystal clear, namely, that by section 4(1) of the Act of 1972, the right, title and interest of owners in relation to the coking coal mines specified in the First Schedule to the Act stood transferred to and vested absolutely in the Central Government free from all incumbrances on the appointed day.
The same position obtained under section 5 of that Act in regard to coke oven plants specified in the Second Schedule.
But in so far as coal mines are concerned, we have, willy nilly, to proceed on the basis that by reason of the definition of coal mine contained in section 2(b) of the Act of 1973, and the definition of coking coal mine in section 3(c) of the Act of 1972 which presents a striking contrast to the definition in section 2(b), composite coal mines, that is to say, coal mines in which there are seams of coal and fireclay (we are only concerned with fireclay in these petition), do not fall within the scope of the definition of 'coal mine ' in section 2(b) of the 1084 Act of 1973.
To that extent Shri Seervai 's contention must succeed.
But what then is the sequitur? Can the lessees of composite mines (like the petitioners in Writ Petitions Nos.
257, 220, 111, 600, 1130 1134, 352, 221 and 178 of 1977) who hold composite mining leases for winning coal and fireclay, continue their mining operations unabated despite the provisions of the Nationalisation Amendment Act? We think not.
It is one thing to say that a composite mine is outside the scope of the definition of coal mine in section 2(b) of the Nationalisation Act of 1973 and quite another to conclude therefrom that the other provisions introduced into that Act by the Nationalisation Amendment Act will have no impact on composite leases for winning coal and fireclay.
Section 3(3) (a) which was introduced into the parent Act by the Nationalisation Amendment Act provides expressly that on and from the commencement of section 3 of the Amendment Act, that is, from April 29, 1976, no person other than those mentioned in clauses (i) to (iii) shall carry on "coal mining operation, in India, in any form".
Section 4 of the Nationalisation Amendment Act which introduced sub section (2) in section 30 of the parent Act provides: "Any person who engages, or causes any other person to be engaged in winning or mining coal from the whole or part of any land in respect of which no valid prospecting licence or mining lease or sub lease is in force, shall be punishable with imprisonment for a term which may extend to two years and also with fine which may extend to ten thousand rupees".
These provisions of sections 3(3)(a) and 30(2) of the parent Act will apply of their own force, whether or not the lessee holds a composite lease for winning coal and fireclay and whether or not the mine is a composite mine containing alternate seams of coal and fireclay.
In other words, as contended by the learned Solicitor General, if a person holding a composite lease can do fireclay mining without mining coal, he may do so.
But if he cannot win or mine fireclay without doing a coal mining operation, that is, without winning or mining coal, he cannot do any mining operation at all.
If he does so, he will be liable for the penal consequences provided for in section 30(2) of the Nationalisation Act of 1973.
The provision contained in section 3(3)(a) totally prohibiting the generality of persons from carrying on coal mining operation in India in any form and the penal provision of section 30(2) virtually 1085 Leave with the lessees of composite mines the husk of a mining interest.
That they cannot win or mine coal is conceded and, indeed, there is no escape from that position in view of the aforesaid provisions.
The only surviving question then is whether they can win or mine fireclay since their composite lease is outside the scope of section 2(b) of the Nationalisation Act of 1973.
The answer has to be in the negative on the basis of the very averments made by the petitioners in their Writ Petitions.
For example, the petitioner in Writ Petition No. 257 of 1957 has stated in his petition, more particularly in paragraph 5 thereof, that the seams of coal and fireclay are so situated in the mine of which he is a lessee, that it is not possible to mine fireclay without mining coal.
This position was not only admitted but reiterated by Shri Seervai, both during the course of his oral argument and in his written brief.
The conclusion is therefore inevitable that the lessees of composite mines will, for all practical purposes, have to nurse their deeds of lease without being able to exercise any of the rights flowing from them.
On their own showing, they will be acting at their peril if they attempt to win fireclay.
If they cannot win fireclay without winning coal, they cannot win fireclay either, even if they hold composite leases under which they are entitled to win coal and fireclay.
This position fortifies the argument of the learned Solicitor General that though the Parliament provided for the payment of amounts for acquisition of certain interests under the Nationalisation Acts of 1972 and 1973, it did not intend to pay any compensation or amount for the termination of leasehold rights in respect of composite mines.
Mines which have alternate seams of coal and fireclay are in a class by themselves and they appear to be far fewer in number as compared with the coking coal mines and coal mines, properly so called.
The authority of law for the termination of the rights of composite lessees is the provision contained in section 3(3) (a), the violation of which attracts the penal provisions of section 30(2) of the Nationalisation Act of 1973.
The Parliament has deprived composite lessees of their right to win fireclay because they cannot do so without winning coal.
The winning of coal by the generality of people is prohibited by the section 3(3) (a) of the Act of 1973.
This is just as well, because Parliament could not have intended that such islands of exception should swallow the main stream of the Nationalisation Acts.
Obviously, no rights were intended to be left outstanding, once the rights in respect of coking coal mines and coal mines were brought to an end.
1086 The petitioners in Writ Petitions Nos. 257, 220, 111, 600, 1130 1134, 352, 221 and 178 of 1977 hold composite mining leases for mining fireclay and coal.
In these Petitions we had passed the following order on May 5, 1978: "These petitions are allowed partly in that the petitioners therein shall be entitled, for the duration of the unexpired portion of their existing leases, to carry on mining operations for the purpose of winning fireclay so long as, and to the extent that, they do not carry on any coal mining operation or engage in winning or mining coal.
In these Writ Petitions there will be no order as to costs".
As we have already stated, no tangible benefit will accrue to the petitioners from this order because, on their own showing, they cannot carry on mining operations for the purpose of winning fireclay without carrying on a coal mining operation or without engaging in winning or mining coal.
That is how the matter rests.
The only other arguments which requires consideration is the one made principally by Shri A. K. Sen which, like Shri Seervai 's argument of legislative competence, is common to all the writ petitions.
Shri Sen 's argument may be stated thus: (1) The Nationalisation Amendment Act affects, in substance, two kinds of transfers: the transfer of the leasehold interests of the lessees in favour of the lessor, namely the State; and the transfer of the mining business of the lessees in favour of the Central Government.
Since these transfers amount to acquisition within the meaning of Article 31(2), the Act is open to challenge under Articles 14, 19(1) (g) and 31 of the Constitution.
(2) The Nationalisation Amendment Act is open to challenge under Article 14 because lessees who fall within that Act are patently discriminated against in comparison with lessees of other mines, both coking and non coking, who were paid compensation when their property was taken over, first for management under the Management Acts and then under the Nationalisation Acts.
(3) The Nationalisation Amendment Act is open to challenge under Article 19(1) (g) because the prohibition against lessees from carrying on their business and the transfer of their business, in substance, to the Central Government or a Company is an unreasonable restriction on the 1087 right of the lessees to hold their lease hold property and to carry on their business of mining.
(4) The Act is open to challenge under Article 31 because no provision is made for the payment of any amount whatsoever to the lessees whose mining business is taken over under the Act.
No public purpose is involved either in the termination of the lessees ' interest or in the acquisition of their business.
Expropriation without payment of any amount requires a very heavy public purpose.
(5) Since no provision whatsoever is made for the payment of any amount to the lessees whose leases are terminated, the Nationalisation Amendment Act is not a 'Law ' within the meaning of Article 31(2) and therefore Article 19 (1) (f) is attracted.
(6) The Act is not saved from the challenge of Articles 14, 19 and 31 by Article 31A(1)(e) because that Article provides for extinguishment which does not amount to acquisition by the State.
If extinguishment amounting to acquisition was intended to be saved under Article 31A(1) (e), the subject matter dealt with by clause (e) would have been included in clause (a) of that Article.
It shall have been noticed that the entire argument hinges around the premise that, by the Nationalisation Amendment Act, the petitioners right to property has been acquired without the payment of any amount and that they have been unreasonably deprived of their right to carry on the business of mining.
A close and careful examination of the provisions of the and of the amendments made to that Act by the Nationalisation Amendment Act will show that there is no substance in either of these contentions.
The ) nationalised coal mines by providing by section 3(1) that on the appointed day, that is on May 1, 1973, the right, title and interest of the owners in relation to the coal mines specified in the Schedule shall stand transferred to, and shall vest absolutely in, the Central Government free from all incumbrances.
The Scheduled mines, 711 in number and situated in reputed coal bearing areas, were the ones which were engaged openly, lawfully and uninterruptedly in doing coal mining business.
Since it was possible to ascertain and verify the relevant facts pertaining to these undertakings, they were taken over on payment of amounts 1088 mentioned in the Schedule to the Act, which varied from mine to mine depending upon the value of their assets, their potential and their profitability.
In the very nature of things, the list of mines in the Schedule could not be exhaustive because there were and perhaps even now there are, unauthorised mines worked by persons who did not possess the semblance of a title or right to do mining business.
Persons falling within that category cannot cite the Constitution as their charter to continue to indulge in unauthorised mining which is unscientific, unsystematic and detrimental to the national interests by reason of its tendency to destroy the reserve of natural resources.
But alongside these persons, there could conceivably be mine operators who may have been doing their business lawfully but who were not easily or readily identifiable.
Section 3(2) of the Nationalisation Act, 1973 made provision for taking over the management of such mines by declaring for "the removal of doubts" that if, after the appointed day, the existence of any other coal mine comes to the knowledge of the Central Government, the provisions of the Coal Mines (Taking Over of Management) Act, 1973, shall, until that mine is nationalised by an appropriate legislation, apply to such mine.
Owners of mines whose mines were not included in the Schedule but whose right, title and interest was to vest eventually in the Central Government under "an appropriate legislation" envisaged by section 3(2) of the Nationalisation Act were, by this method, placed on par with the owners of mines of which the management was taken over under the Coal Mines (Taking Over of Management) Act, 1973.
That Act provides by section 7(1) that every owner of a coal mine shall be given by the Central Government an amount in cash for the vesting in it, under section 3, of the management of such mine.
By section 7(2), for every month during which the management of a coal mine remains vested in the Central Government, the amount referred to in sub section (1) shall be computed at the rate of twenty paise per tonne of coal on the highest monthly production of coal from such mine during any month in the years 1969, 1970, 1971 and 1972.
The two provisos to that sub section and the other sub sections of section 7 provide for other matters relating to payment of amounts to the owners of coal mines of which the management was taken over.
The Nationalisation Amendment Act carried the scheme of these two Acts to its logical conclusion by terminating the so called leases and sub leases which might have remained outstanding.
Thus, the purpose attained by these Acts is (1) to vest in the Central Government the right of management of all coal mines; (2) to nationalise the mines mentioned in the Schedule; (3) to provide for the taking over of management of coal mines the existence of which comes to the knowledge of the Central Government after the appoint 1089 ed day and lastly (4) to terminate all mining leases.
The Management Act and the Nationalisation Act provide for payment of amounts, by no means illusory, to the owners of coal mines whose rights were taken over.
In the normal course of human affairs, particularly business affairs, it is difficult to conceive that owners of coal mines who had even the vestige of a title thereto would not bring to the notice of the Central Government the existence of their mines, when such mines were not included in the Schedule to the Nationalisation Act.
Those who did not care to bring the existence of their mines to the knowledge of the Central Government, even though amounts are payable under the Management Act for the extinguishment of the right of management, did not evidently possess even the semblance of a title to the mines.
The claims of lessees, holding or allegedly holding under such owners, would be as tenuous as the title of their putative lessors.
The Nationalisation Amendment Act by section 3(3) (b) undoubtedly terminates all existing leases and sub leases except those already granted in favour of persons referred to in clauses (i) to (iii) of section 3 (3)(a).
Similarly, section 3 (3)(a) imposes an embargo on all future coal mining operations except in regard to the persons mentioned in clauses (i) to (iii).
But the generality of leases which are alleged to have remained outstanding despite the coming into force of the Management Act and the Nationalisation Act, were mostly precarious, whose holders could at best present the familiar alibi that the origin of their rights or of those from whom they derived title was lost in antiquity.
Neither in law, nor in equity and justice, nor under the Constitution can these lessees be heard to complain of the termination of their lease hold rights without the payment of any amount.
The provision contained in section 3(3)(b) of the Nationalisation Amendment Act was made ex majore cautela so as not to leave any lease of a coal mine surviving after the enactment of the Management Act and the Nationalisation Act.
There was no reasonable possibility of a lawful lease surviving the passing of those Acts; but if, per chance, anyone claimed that he held a lease, that stood terminated under section 3(3)(b).
Once the real nature of the scheme envisaged by the Management Act the Nationalisation Act and the Nationalisation Amendment Act is appreciated, it will be easy to see that section 3(3) (b) of the Nationalisation Amendment Act brings about an extinguishment simpliciter of coal mining leases within the meaning of Article 31A (1)(e) of the Constitution.
That Article, as it stood prior to the 44th Amendment, read thus: 1090 "31A. (1) Notwithstanding anything contained in Article 13, no law providing for (e) the extinguishment or modification of any rights accruing by virtue of any agreement, 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 takes away or abridges any of the rights conferred by article 14, article 19 or article 31".
We are not concerned with the amendment introduced by the 44th Amendment Act which deleted the reference to Article 31, since that Amendment Act came into force prospectively with effect from June 20, 1979.
We are unable to accept that the termination of the mining leases and sub leases brought about by section 3(3)(b) of the Nationalisation Amendment Act is a mere pretence for the acquisition of the mining business of the lessees and the sub lessees.
We have already shown how, in the context of the scheme of the Management Act, the Nationalisation Act and the Nationalisation Amendment Act, it is impossible to hold that the true intent of the last mentioned Act was to 'acquire ' anyone 's business.
This would be so whether the word 'acquire ' is understood in its broad popular sense or in the narrow technical sense which it has come to possess.
Whatever rights were intended to be acquired were paid for by the fixation of amounts or by the laying down of a formula for ascertaining amounts payable for acquisition.
It is hard to believe that having provided for payment of amounts for acquisition of management and ownership rights, the legislature resorted to the subterfuge of acquiring the mining business of the surviving lessees and sub lessees by the device of terminating their leases and sub leases.
The legislative history leading to the termination of coal mining leases points to one conclusion only that, by and large, every lawful interest which was acquired was paid for; the extinguishment of the interest which survived or which is alleged to have survived the passing of the Management Act and the Nationalisation Act was provided for merely in order to ensure that no loophole was left in the implementation of the scheme envisaged by those Acts.
1091 This will provide a short answer to Shri Sen 's argument that persons whose leases and sub leases are terminated without payment of any amount are discriminated against in comparison with other lessees who were paid amounts when their property was taken over.
The answer is that persons dealt with by section 3(3)(b) of the Nationalisation Amendment Act are differently situated from those who were dealt with by the two earlier Acts.
No violation of Article 14 is therefore involved.
Likewise, we see no substance in the contention that no public purpose is involved in the termination of the interest of the lessees and sub lessees which was brought about by the Nationalisation Amendment Act.
The public purpose which informs that Act is the same which lies behind its two precursors, the Management Act and the Nationalisation Act.
The purpose is to reorganize and re structure coal mines so as to ensure the rational, coordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country.
The Statement of Objects and Reasons of the Nationalisation Amendment Act points in the direction.
Public purpose runs like a continuous thread through the well knit scheme of the three Acts under consideration.
This discussion is sufficient to meet the contention of the petitioners that the interest of the lessees and sub lessees has been "acquired" under the Nationalisation Amendment Act by the termination of leases and sub leases.
But, we may examine that contention in the light of the relevant Constitutional provisions and principles.
It was observed in Dwarkadas Shrinivas vs The Sholapur Spinning & Weaving Co. Ltd. that the provisions of the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred.
"The form is unessential.
It is the substance that we must seek".
Making every allowance in favour of the right to property which was available at the relevant time and having regard to the substance of the matter and not merely to the form adopted for terminating the interest of the lessees and the sub lessees, we are of the opinion that the Nationalisation Amendment Act involves no acquisition of the interest of the lessees and the sub lessees.
It merely brings about in the language of Article 31A(1)(e) "the extinguishment" of their right, if any, to win coal.
Whichever right, title and interest was lawful and identifiable was acquired by the Management Act and the Nationalisation Act.
And whichever interest was acquired was paid for.
Tenuous and furtive interests 1092 which survived the passing of those Acts were merely extinguished by the Nationalisation amendment Act.
In Ajit Singh vs State of Punjab, it was observed by Hindayatullah, J. in the dissenting judgment which he gave on behalf of himself and Shelat, J., that in the case of extinguishment within the meaning of Article 31A, if all the rights in a property are extinguished the result would be nothing else than acquisition, because no property can remain in suspense without the rights therein being vested in some one or the other.
These observations made by the learned Judge are not contrary to anything contained in the majority judgment delivered by Sikri, J., and naturally therefore, great reliance is placed upon them by the petitioners.
Even greater sustenance is drawn by the petitioners from the judgment of a 7 Judge Bench of this Court in Madan Mohan Pathak vs Union of India & Ors.
In that case, a settlement which the Life Insurance Corporation had arrived at with its employees was substantially set at naught by the Life Insurance Corporation (Modification of Settlement) Act, 1976.
It was held by this Court that the Act was violative of Article 31(2) since it did not provide for payment of any amount for the compulsory acquisition of the debts owed by the Life Insurance Corporation to its employees; that the direct effect of the impugned Act was to transfer ownership of the debts due and owing to Class III and Class IV employees in respect of annual cash bonus to the Life Insurance Corporation and that, since the Corporation is owned by the State, the impugned Act was a law providing for compulsory acquisition of the debts by the State within the meaning of Article 31(2A).
These decisions have no application to the instant case because the interest of the lessees and sub lessees which was brought to termination by section 3(3) (b) of the Nationalisation Amendment Act does not come to be vested in the State.
The Act provides that excepting a certain class of leases and sub leases, all other leases and sub leases shall stand terminated in so far as they relate to the winning or mining of coal.
There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the provisions of the Act.
Sub section (4) of section 3 of the Act provides that where a mining lease stands terminated under sub section (3), it shall be lawful for the Central Government or a Government company or a corporation owned or controlled by the Central government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated.
1093 The plain intendment of the Act, which, may it be reiterated, is neither a pretence nor a facade, is that once the outstanding leases and subleases are terminated, the Central Government and the other authorities will be free to apply for a mining lease.
Any lease hold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by section 3(3)(b).
Another event has to intervene between the termination of existing leases and the creation of new interests.
The Central Government, etc.
have to take a positive step for obtaining a prospecting licence or a mining lease.
Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a Government Company or a Corporation owned, managed or controlled by the Central Government.
As observed by Sikri, J., in Ajit Singh, (supra) the essential difference between "acquisition by the State" on the one hand and "modification or extinguishment of rights" on the other, is that in the first case the beneficiary is the State while in the second the beneficiary is not the State.
The Nationalisation Amendment Act merely extinguishes the rights of the lessees and the sub lessees.
It does not provide for the acquisition of those rights, directly or indirectly, by the State.
Article 31(2A) will therefore come into play, by which, "Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.
" The position in Madan Mohan Pathak (supra) was entirely different because the direct effect of the impugned Act was to transfer ownership of the debts due and owing to Class III and Class IV employees in respect of annual cash bonus to the Life Insurance Corporation; since the L.I.C. is a Corporation owned by the State, the impugned Act was held to be a law providing for compulsory acquisition of these debts by the State within the meaning of clause (2A) of Article 31.
Shri Sen 's argument on the question of acquisition of the rights of lessees and sub lessees by the State therefore fails.
It follows that the Nationalisation Amendment Act must receive the protection of Article 31A(1)(e) of the Constitution, that is to say, that the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31.
1094 These are our reasons for the order passed by us on May 5, 1978 which reads thus : The stay orders passed in these Writ Petitions are vacated except in those Writ Petitions, viz., Writ Petitions Nos. 257, 220, 111, 600, 1130 1134, 352, 221 and 178/77 in which composite mining leases have been granted for mining both fireclay and coal.
The stay orders in these latter petitions shall stand modified as from to day on the lines of the order recorded below.
All the Writ Petitions are dismissed with costs except Writ Petitions Nos. 257, 220, 111, 600, 1130 1134, 352, 221 and 178/77 in each of which there is a composite mining for mining fireclay and coal.
These Petitions are allowed partly in that the petitioners therein shall be entitled, for the duration of the unexpired portion of their existing leases, to carry on mining operations for the purpose of winning fireclay so long as, and to the extent that, they do not carry on any coal mining operation or engage in winning or mining coal.
In these writ petitions there will be no order as to costs.
We have already indicated how, though the petitioners holding composite leases were permitted to carry on mining operations for the purpose of winning fireclay, they, according to their own showing, cannot win or mine fireclay without doing a coal mining operation or without engaging in winning or mining coal.
It is self evident that in attempting to win fireclay, they will have to act at their own peril since they will run the risk of being prosecuted under section 30(2) of the .
Petition Nos. 111, 178, 220, 221, 257, 352, 600 and 1130 1134 partly allowed.
Petition Nos. 150, 151, 180, 205 210, 226, 270 271, 346, 355, 403, 396 398, 599, 541, 543, 626, 635 639, 661, 687 692, 758/77 and 154, 571 574, 603, 605, 610 and 611/77 dismissed.
| IN-Abs | Article 246(1) of the Constitution of India confers upon the Parliament, notwithstanding anything contained in clauses 2 and 3 of that Article, the exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule, called the Union List, Clause 2 of Article 246 deals with the power of the Parliament and the State Legislatures to make laws with respect to any of the matters enumerated in the Concurrent List, while clause 3 deals with the power of the State Legislatures to make laws with respect to any of the matters enumerated in the State List.
Entry 23 List II, Schedule VII of the Constitution read with Article 246(3) confers legislative power on the State Legislatures in respect of "Regulation of mines and mineral development" but that power is "subject to the provisions of List I with respect to regulation and development under the control of the Union".
Entry 54 List I enables Parliament to acquire legislative power in respect of "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".
Entry 24 List II relates to "Industries subject to the provisions of entries 7 and 52 of List I".
Entry 7, List I, relates to Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war.
Entry 52, List I, enables Parliament to acquire legislative power in respect of "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest".
Pursuant to these powers the Parliament enacted the Industries (Development & Regulation) Act, 65 of 1951, the Mines Act 35 of 1952, the Mines and Minerals (Regulation and Development) Act 67 of 1957, the Coking Coal Mines (Emergency Provisions) Act, 64 of 1971, the Coking Coal Mines (Nationalisation) Act, 36 of 1972, the Coking Coal Mines (Nationalisation) Amendment Act, 56 of 1972, the Coal Mines (Taking over of Management) Act, 15 of 1973 and the Coal Mines (Nationalisation) Act 26 of 1973.
Thereafter the Coal Mines (Nationalisation) Amendment Act 67 of 1976 was passed, the objects and reasons being: 1043 "After the nationalisation of coal mines, a number of persons holding coal mining leases unauthorisedly started mining of coal in the most reckless and unscientific manner without regard to considerations of conservation, safety and welfare of workers.
Not only were they resorting to slaughter mining by superficial working of outcrops and thereby destroying a valuable national asset and creating problems of water logging fires, etc.
for the future development of the deeper deposits, their unsafe working also caused serious and fatal accidents.
They were making larger profits by paying very low wages, and by not providing any safety and welfare measures.
Thefts of coal from adjacent nationalised mines were also reported after the commencement of these unauthorised operations which had shown an increasing trend of late.
Areas where illegal and unauthorised operations were carried on, were without any assessment of reserves in regard to quality and quantity of coal which could be made available after detailed exploration work was undertaken and results analysed.
No scientific exploitation of these deposits could be undertaken in the nationalised sector without these details.
It was, therefore, considered that it would not be appropriate either to nationalise these unauthorisedly worked mines after taking them over under the Coal Mines (Taking over of Management) Act, 1973 or to get the concerned mining leases prematurely terminated and regranted to Government Companies under the Mining and Minerals (Regulation and Development) Act, 1957.
In view of the policy followed by the Central Government that the Coal Industry is to be in the nationalised sector, it was decided that the Coal Mines Nationalisation Act, 1973 should be enacted to provide for termination of all privately held coal leases except those held by privately owned steel companies, so that it may be possible for the Central Government, Government Company or Corporation to take mining leases where necessary, after necessary exploration has been made as to the extent of the deposits of coal etc.
" The petitioners who were the lessees of coal mines by the State Government, being aggrieved by the provisions of the Amendment Act 67 of 1976, challenged the competence of Parliament to enact the Amendment Act and also the validity of the Act and contended: (a) Laws made in the exercise of power conferred by Entry 54 must stand the test of public interest because the very reason for the Parliament acquiring power under that entry is that it is in public interest that the regulation of mines and minerals should be under the control of the Union.
In other words, Entry 54 confers a legislative power which is purposive, that is to say, any law made in the exercise of the power under Entry 54 must be designed to secure the regulation and development of coal mines in public interest or else it must fail.
The Nationalisation Amendment Act is not such a law which Parliament can pass under Entry 54 because, that Act not only terminates all leases but it destroys the contracts of service of thousands of workmen, and indeed it destroys all other contracts and all securities for moneys lent without even so much as making a provision for priorities for the payment of debts.
Since the Nationalisation Amendment Act terminates all leases, it is a complete negation of the integrated scheme of taking over the management of mines, acquisition of the rights of lease holders and the running of the mines.
(b) The word 'Regulation ' in Entry 54 does not include 'Prohibition '.
'Regulation ' should not also be confused with the expression 'Restrictions ' occur 1044 ring in Article 19(2) to (6) of the Constitution.
In the very nature of things, there cannot be a power to prohibit the regulation and development of mines and minerals '.
Section 3(4) inserted by the Nationalisation Amendment Act imposes no obligation on the Central Government or any other authority to obtain a mining lease and work the mines, the leases in respect of which stand terminated under the Act.
The words "it shall be lawful" for the Central Government to obtain a lease are words of discretionary power which create no obligation.
They only enable the Central Government to obtain a lease, making something legal and possible for which there would otherwise be no right or authority to do.
Section 3(4) does not confer a power coupled with a duty; it merely confers a faculty or power.
No Court can by a Writ of Mandamus or otherwise compel the Central Government to obtain a lease of a coal mine and to run it under any of the provisions of the Nationalisation Amendment Act.
(c) Where the Legislative power is distributed among different legislative bodies, the Legislature may transgress its legislative power either directly or manifestly, or covertly or indirectly.
In the instant case, the exercise of power by the Parliament is colourable because although in passing the Nationalisation Amendment Act it purported to act within the limits of its legislative power, in substance and in reality it transgressed that power, the transgression being veiled by what appears on proper examination to be a mere pretence or disguise.
(d) In order to tear off the veil or disguise and in order to get at the substance of the law behind the form, the Court must examine the effect of the legislation and take into consideration its object, purpose and design.
Where the legislative entry is purposive, like Entry 54 of the Union List, it is the object or purpose of the legislation which requires consideration.
The purpose for which the Parliament is permitted to acquire legislative power of Regulation and Development of mines must dictate the nature of law made in the exercise of that power because public interest demands that power.
Under the provisions of the Nationalisation Amendment Act, not only is there no obligation on the Central Government to run a mine, but there is no obligation imposed upon it even to carry out prospecting or investigation in order to decide whether a particular mine should be worked at all.
Section 3(4) merely authorises the Central Government to apply for "a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands determined".
A close examination of the Act thus discloses that far from providing for regulation and development of coal mines, it totally prohibits all mining activity even if the State Government wants to run a mine.
It does not impose prohibition as a step towards running the mines since there is neither any obligation to carry out the prospecting or investigation nor to run the mines.
(e) The Nationalisation Amendment Act runs directly counter to the whole policy of the Coal Mines (Nationalisation) Act of 1973, to acquire and run the mines.
The Parent Act becomes a dead letter in regard to several of its provisions as a result of the Amendment Act.
It only adopts a colourable device to amend the Nationalisation Act while completely negativing it in fact.
The Act therefore lacks legislative competence and is, in the sense indicated, a colourable piece of legislation.
1045 (f) Article 31(A)(1)(e) only lifts a restriction on the legislative competence in so far as violation of fundamental rights is concerned.
The most benign motive cannot make a law valid if the legislative competence is lacking.
(g) Under Article 31(1) of the Constitution, no person can be deprived of his property without the authority of law.
Article 31A(1) which exempts the laws mentioned in clauses (a) to (e) from invalidity under Articles 14, 19 and 31 does not dispense with the necessity of the authority of law for depriving a person of his property, because the opening words of Article 31A(1) are ". . no law providing for . ." matters mentioned in clauses (a) to (e) shall be deemed to be void as offending Articles 14, 19 and 31.
(h) The Nationalisation Amendment Act confers no authority to terminate a composite lease for mining coal and fire clay.
The right to mine fire clay is given to the petitioner by law and it can only be taken away by law.
(i) Though the Nationalisation Amendment Act does not in terms prohibit the petitioner from mining fireclay, the effect of the law, in a practical business sense, is to prohibit the petitioner from mining fireclay and, therefore, the position is the same as though the Act had enacted the prohibition in express terms.
The Court must look at the direct impact of the law on the right of the party, and if that impact prohibits him from exercising his right, the fact that there is no express prohibition in the Act is immaterial.
(j) The Nationalisation Amendment Act by making it punishable, to mine coal, in substance and in a practical business sense, prohibits the petitioner from mining fireclay.
For this prohibition the Amendment Act does not provide, and therefore, there is no authority of law for it.
Coal and fireclay are two distinct minerals as shown by Schedule II to the Mines and Minerals (Regulation and Development) Act, 67 of 1957 wherein item 1 is coal and item 15 is fireclay.
The dictionary meanings of coal and fireclay also show that they are two distinct minerals.
(k) The Nationalisation Amendment Act affects, in substance, two kinds of transfers: the transfer of the lease hold interests of the lessees in favour of the lessor, namely the State; and the transfer of the mining business of the lessees in favour of the Central Government.
Since these transfers amount to acquisition within the meaning of Article 31(2), the Act is open to challenge under Articles 14, 19(1)(g) and 31 of the Constitution.
(1) The Nationalisation Amendment Act is open to challenge under Article 14 because lessees who fall within that Act are patently discriminated against in comparison with lessees of other mines, both coking and non coking, who were paid compensation when their property was taken over first for management under the Management Acts and then under the Nationalisation Acts.
(m) The Nationalisation Amendment Act is open challenge under Article 19(1)(g) because the prohibition against lessees from carrying on their business and the transfer of their business, in substance, to the Central Government or a Company is an unreasonable restriction on the right of the lessees to hold their lease hold property and to carry on their business of mining.
(n) The Act is open to challenge under Article 31 because no provision is made for the payment of any amount whatsoever to the lessees whose mining business is taken over under the Act.
No public purpose is involved either in the 1046 termination of the lessees ' interest or in the acquisition of their business.
Expropriation without payment of any amount requires a very heavy public purpose.
(o) Since no provision whatsoever is made for the payment of any amount to the lessees whose leases are terminated, the Nationalisation Amendment Act is not a 'Law ' within the meaning of Article 31(2) and therefore Article 19(1)(f) is attracted.
(p) The Act is not saved from the challenge of Articles 14, 19 and 31 by Article 31A (1) (e) because that Article provides for extinguishment which does not amount to acquisition by the State.
If extinguishment amounting to acquisition was intended to be saved under Article 31A(1) (e), the subject matter dealt with by clause (e) would have been included in clause (a) of that Article.
Dismissing all the Writ Petitions except Writ Petitions Nos. 111, 178, 220, 221, 257, 352, 600 & 1130 1134/77 which are allowed in part, the Court, ^ HELD : (1) The provisions of the Amendment Act 67 of 1976 are not a mere facade for terminating mining leases without any obligation in the matter of regulation of mines and mineral development.
[1071H, 1072A] Grating that Entry 54, List I is purposive since it qualifies the power to pass a law relating to "Regulation of Mines and Mineral Development" by the addition of a restrictive clause, "to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest", the provisions of the Nationalisation Amendment Act show that they are designed to serve progressively the purpose of Entry 54.
[1972 A B] The Coal Mines (Nationalisation) Act was passed in order to provide for the acquisition and transfer of the right, title and interest of the owners in respect of the Coal mines specified in the Schedule to that Act.
This was done with a view to re organising and reconstructing such coal mines so as to ensure the rational, co ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country.
The high purpose of that Act was to ensure that the ownership and control of such resources are vested in the State and thereby so distributed as best to subserve the common good.
[1072 D F] The several provisions of the Nationalisation Amendment Act, are, (1) by section 3(3) (a) of the which was introduced by the Nationalisation Amendment Act, no person other than those mentioned in clauses (i) to (iii) can carry on coal mining operations after April 29, 1976, being the date on which section 3 of the Nationalisation Amendment Act came into force; (2) by section 3 (3) (b) all mining leases and sub leases stood terminated except those granted before April 29, 1976 in favour of the Central Government, a Government company or corporation owned, managed or controlled by the Central Government; (3) section 3(3) (c) prohibits the granting of a lease for winning or mining coal in favour of any person other than the Government, a Government company or a corporation of the above description provided that a sub lease could be granted by these authorities to any person if the two conditions mentioned in the proviso are satisfied; and (4) when a mining lease stands terminated under section 3(3), "it shall 1047 be lawful" for the Central Government or the Government company or the corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands terminated.
Section 4 of the Nationalisation Amendment Act introduced an additional penal provision in the parent Act.
The provisions of Ss. 3 and 4 are not a direct negation of the principles of the parent Act and they do not destroy the integral scheme of taking over the management of mines, of acquiring the rights of lease holders and continuing to run the mines.
On the contrary, the Nationalisation Amendment Act is manifestly in furtherance of the object of nationalisation mentioned in the preamble to the parent Act and effectuates the purpose mentioned in sections 3(1) and 3(2) of that Act by the addition of a new sub section, sub section (3), which terminates all coal mining leases and sub leases except those referred in sub section (3) (b).
The circumstance that the marginal note to section 3 and the title of Chapter II of the Nationalisation Act are not amended by the Nationalisation Amendment Act, despite the addition of a new sub section, is of little or no consequence.
That sub section is a logical extension of the scheme envisaged by the original sub sections (1) and (2) of section 3.
[1073 C H, 1074A B] 2.
Besides, marginal notes to the sections of a statute and the titles of its chapters cannot take away the effect of the, provisions contained in the Act so as to render those provisions legislatively incompetent, if they are otherwise within the competence of the legislature to enact.
One must principally have regard to the object of an Act in order to find out whether the exercise of the legislative power is purposive, unless, of course, the provisions of the Act show that the avowed or intended objects is a mere pretence for covering a veiled transgression committed by the legislative upon its own powers.
Whether a particular object can be successfully achieved by an Act, is largely a matter of legislative policy.
[1074 B D] 3.
The Nationalisation Amendment Act needs no preamble, especially when it is backed up by a statement of objects and reasons.
Generally, an amendment Act is passed in order to advance the purpose of the parent Act as reflected in the preamble to that Act.
Acquisition of coal mines, is not an end in itself but is only a means to an end.
The fundamental object of the Nationalisation Act as also of the Nationalisation Amendment Act is to bring into existence a state of affairs which will be congenial for regulating mines and for mineral development.
In regard to the scheduled mines, that purpose was achieved by the means of acquisition.
In regard to mines which were not included in the Schedule, the same purpose was achieved by termination of leases and sub leases and by taking over the right to work the mines.
Termination of leases, vesting of lease hold properties in the State Governments and the grant of leases to the Central Government or Government Companies are together the means conceived in order to achieve the object of nationalisation of one of the vital material resources of the community.
[1074 D G] 4.
Section 18 of the Mines and Mineral (Regulation and Development) Act 67, 1957 contains a statutory behest and projects a purposive legislative policy.
The later Acts on the subject of regulation of mines and mineral development are linked up with the policy enunciated in section 18.
Therefore, nothing contained in the later analogous Acts can be construed as in derogation of the principle enunciated in section 18 of the Mines and Minerals (Regulation and Development) Act, 67 of 1957, which provides that it shall be the duty of the 1048 Central Government to take all such steps as may be necessary for the conservation and development of minerals in India.
Therefore, even in regard to matters falling under the Nationalisation Amendment Act which terminates existing leases and makes it lawful for the Central Government to obtain fresh leases, the obligation of section 18 of the Act of 1957 will continue to apply in its full rigour.
[1074 G H, 1075 A B] 5.
Entry 54 refers to two things : (1) regulation of mines and (2) mineral development.
It is true that the Entry is purposive, since the exercise of the power under Entry 54 has to be guided and governed by public interest.
But neither the power to regulate mines nor the power to ensure mineral development postulates that no sooner is a mining lease terminated by the force of the statute, then the Central Government must begin to work the mine of which the lease is terminated.
It is possible that after the Nationalisation Amendment Act came into force, there was a hiatus between the termination of existing leases and the granting of fresh ones.
But, the Nationalisation Amendment Act does not provide that any kind of type of mine shall not be developed or worked.
Conservation, prospecting and investigation, developmental steps and finally scientific exploitation of the mines and minerals, is the process envisaged by the Nationalisation Amendment Act.
It is undeniable that conservation of minerals, which is brought about by the termination of existing leases and subleases, is vital for the development of mines.
A phased and graded programme of conservation is in the ultimate analysis one of the most satisfactory and effective means for the regulation of mines and the development of minerals.
[1075 D G] 6.
The Nationalisation Amendment Act is not destructive of the provisions of the Parent Act.
The destruction which the Nationalisation Amendment Act brings about is of the lease or the sub lease and not of its subject matter, namely, the mine itself.
In terminating the lease of a house one does not destroy the house itself.
It may be arguable that prohibiting the use of the house for any purpose whatsoever may, for practical purposes, amount to the destruction of the house itself.
The Nationalisation Amendment Act neither contains provisions directed at prohibiting the working of mines, the leases in respect of which are terminated.
A simple provision for granting sub leases shows that the object of the Nationalisation Amendment Act is to ensure that no mine will lie idle or unexplored.
Interregnums can usefully be utilised for prospecting and investigation.
They do not lead to destruction of mines.
In fact, it is just as well that the Amendment Act does not require the new leases to undertake an adventure, reckless and thoughtless, which goes by the name of 'scratching of mines ', which ultimately results in the slaughtering of mines.
[1075H, 1976A D] Natural resources, however, large are not inexhaustible, which makes it imperative to conserve them.
Without a wise and planned conservation of such resources, there can neither be a systematic regulation of mines nor a scientific development of minerals.
The importance of conservation of natural resources in any scheme of regulation and development of such resources can be seen from the fact that the Parliament had to pass in August 1974 an Act called the Coal Mines (Conservation and Development) Act, 28 of 1974, in order, principally, to provide for the conservation of coal and development of coal mines, Section 4(1) of that Act enables the Central Government, for the purpose of conservation of coal and for the development of coal mines, to exercise such powers and take or cause to be taken such measures as it may be necessary or proper or as may be prescribed.
By section 5(1), a duty is cast on the 1049 owners of coal mines to take such steps as may be necessary to ensure the conservation of coal and development of the coal mines owned by them.
Measures taken for judicious preservation and distribution of natural resources may involve restrictions on their use and even prohibition, upto a degree, of the unplanned working of the repositories of such resources.
[1076 D F, 1077 B] Attorney General for Ontario vs Attorney General for Canada , 363; Municipal Corporation of City of Toronto vs Virgo explained and referred to.
Section 3(4) of the Act uses an enabling or permissive expression in order that regulation of mines and mineral development may be ensured after a scientific prospecting, investigation and planning.
It is doubtless that, in the language of Lord Cairns in Julius (1880) 5 Appeal Cases 214, 222, there is something in the nature of the things which the Nationalisation Amendment Act empowers to be done, something in the object for which it is to be done and something in the conditions under which it is to be done which couples the power conferred by the Act with a duty, the duty being not to act in haste but with reasonable promptitude depending upon the nature of the problem under investigation.
An obligation to act does not cease to be so merely because there is no obligation to act in an ad hoc or impromptu manner.
It is in the context of a conglomeration of these diverse considerations that one must appreciate why, in section 3(4) which was introduced by the Nationalisation Amendment Act, Parliament used the permissive expression "it shall be lawful".
[1078 H, 1079 A C] A broad and liberal approach to the field of legislation demarcated by Entry 54, List I, an objective and practical understanding of the provisions contained in the Nationalisation Amendment Act and a realistic perception of constitutional principles will point to the conclusion that the Parliament had the legislative competence to enact the Nationalisation Amendment Act.
[1079 C D] Julius vs Bishop of Oxford [1880] 5 Appeal cases 214,222 referred to.
The Coking of 1972 and the of 1973 cover the whole field of "Coal" which was intended to be nationalised.
The titles of the two Acts and the various provisions contained therein show that what was being nationalised was three distinct categories of mines: mines containing seams of coking coal exclusively; mines containing seams of coking coal along with seams of other coal; and mines containing seams of other coal.
Though Parliament had power under Article 31A(1)(e) of the Constitution to terminate mining leases without payment of any compensation or 'amount ', it decided to nationalise coal mines on payment of amounts specified in the Schedules to the Nationalisation Acts of 1972 and 1973.
Besides, even when something apart from coking coal mines was acquired, namely, 'coke oven plants ', provision was separately made in section 11 of the Nationalisation Act of 1972, read with the 2nd Schedule, for payment of amounts to owners of coke oven plants.
Thus, whatever was intended to be acquired was paid for.
This scheme is prima facie inconsistent with the Parliament intending to acquire leasehold rights in other minerals, like fireclay, without the payment of any amount.
[1082 B E] Coupled with this is the unambiguous wording of section 3(3)(b) and section 3(3)(c) of the Nationalisation Act of 1973 which were introduced therein by 1050 section 3 of the Nationalisation Amendment Act.
These provisions carry the scheme of the Nationalisation Acts to their logical conclusion by emphasising that the target of those Acts is coal mines, pure and simple.
What stands terminated under section 3(3)(b) is certain mining leases and sub leases in so far as they relate to the winning or mining of coal.
The embargo placed by section 3(3)(c) is on the granting of leases for winning or mining coal to persons other than those mentioned in section 3(3)(a).
[1082 E F, H, 1083 A] The definition of 'coal mine ' in section 2(b) of the has an uncertain import and the scheme of that Act and of the makes it plausible that rights in minerals other than coke and coal were not intended to be acquired under the two Nationalisation Acts.
A comparison of the definition of "coal mine" in section 2(b) of the Act of 1973 with the definition of "coking coal mine" in section 3(c) of the of 1972 makes it clear that whereas in regard to coking coal mines, the existence of any seam of other coal was regarded as inconsequential, the existence of any seam of another mineral was not considered as inconsequential in regard to a coal mine.
The definition of coal mine in section 2(b) of the Act of 1973 scrupulously deleted the clause, "whether exclusively or in addition to" any other seam.
The same Legislature which added the particular clause in the definition of 'coking coal mine ' in the 1973 Act, deleted it in the definition of 'coal mine in the 1973 Act.
In so far as coal mines are concerned, by reason of the definition of coal mine contained in section 2(b) of the Act of 1973, and the definition of coking coal mine in section 3(c) of the Act of 1972 which presents a striking contrast to the definition in section 2(b), composite coal mines, that is to say, coal mines in which there are seams of coal and fireclay do not fall within the scope of the definition of "coal mine" in section 2(b) of the Act of 1973.
[1083 A B, C E, G H] 9.
The lessees of composite mines, therefore, who hold composite mining leases of winning coal and fireclay, cannot continue their mining operations unabated despite the provisions of the Nationalisation Amendment Act.
It is one thing to say that a composite mine is outside the scope of the definition of coal mine in section 2(b) of the Nationalisation Act of 1972 and quite another to conclude therefrom that the other provisions introduced into that Act by the Nationalisation Amendment Act will have no impact on composite leases for winning coal and fireclay.
Section 3(3) (a) which was introduced into the parent Act by the Nationalisation Amendment Act provides expressly that on and from the commencement.
Of section 3 of the Amendment Act, that is, from April 29, 1976, no person other than those mentioned in clauses (i) to (iii) shall carry on "coal mining operation, in India, in any from." These provisions of sections 3(3)(a) and 30(2) of the parent Act will apply of their own force, whether or not the lessee holds a composite lease for winning coal and fireclay and whether or not the mine is a composite mine containing alternate seams of coal and fireclay.
In other words, if a person holding a composite lease can do fireclay mining without mining coal, he may do so.
But if he cannot win or mine fireclay without doing a coal mining operation, that is, without winning or mining coal, he cannot do any mining operation at all.
If he does so, he will be liable for the penal consequences provided for in section 30(2) of the Nationalisation Act of 1973.
The provision contained in section 3(3)(a) totally prohibiting the generality of persons from carrying on coal mining operation in India in any form and the penal provision of section 30(2) 1051 virtually leave with the lessees of composite mines the husk of a mining interest.
That they cannot win or mine coal is conceded and, indeed, there is no escape from that position in view of the aforesaid provisions.
[1084 B H, 1085 A] The lessees of composite mines cannot win or mine fireclay though their composite lease is outside the scope of section 2(b) of the Nationalisation Act of 1973.
The lessees of composite mines will, for all practical purposes, have to nurse their deeds of lease without being able to exercise any of the rights flowing from them.
On their own showing, they will be acting at their peril if they attempt to win fireclay.
If they cannot win fireclay without winning coal, they cannot win fireclay either, even if they hold composite leases under which they are entitled to win coal and fireclay.
[1085 C D] (10).
Though the Parliament provided for the payment of amounts for acquisition of certain interests under the Nationalisation Acts of 1972 and 1973, it did not intent to pay any compensation or amount for the termination of lease hold rights in respect of composite mines.
Mines which have alternate seams of coal and fireclay are in a class by themselves and they appear to be far fewer in number as compared with the coking coal mines and coal mines, properly so called.
The authority of law for the termination of the rights of composite lessees is the provision contained in section 3(3)(a), the violation of which attracts the penal provisions of section 30(2) of the Nationalisation Act of 1973.
The Parliament has deprived composite lessees of their right to win fireclay because they cannot do so without winning coal.
The winning of coal by the generality of people is prohibited by section 3(3)(a) of the Act of 1973.
[1085 E H] This is just as well, because Parliament could not have intended that such islands of exception should swallow the main stream of the Nationalisation Acts.
Obviously, no rights were intended to be left outstanding once the rights in respect of coking coal mines and coal mines were brought to an end.
[1085 G H] 11.
A close and careful examination of the provisions of the and of the amendments made to that Act by Nationalisation Amendment Act makes it clear that by the Nationalisation Amendment Act, neither the petitioners ' right to property has been acquired without the payment of any amount nor they have been unreasonably deprived of their right to carry on the business of mining.
[1087 E F] The nationalised coal mines by providing by section 3(1) that on the appointed day, that is on May 1, 1973, the right, title and interest of the owners in relation to the coal mines specified in the Schedule shall stand transferred to, and shall vest absolutely in, the Central Government free from all incumbrances.
The scheduled mines, 711 in number and situated in reputed coal bearing areas, were the ones which were engaged openly, lawfully and uinterruptedly in doing coal mining business.
Since it was possible to ascertain and verify the relevant facts pertaining to these undertakings, they were taken over on payment of amounts mentioned in the Schedule to the Act, which varied from mine to mine depending upon the valve of their assets, their potential and their profitability.
In the very nature of things, the list of mines in the Schedule could not be exhaustive because there were, and perhaps even now there are, unauthorised mines worked by persons who did not possess the semblance of a title or right to do mining business.
Persons falling within that category cannot cite the Constitution as their charter 1052 to continue to indulge in unauthorised mining which is unscientific, unsystematic and detrimental to the national interest by reason of its tendency to destroy the reserve of natural resources.
But alongside these persons, there could conceivably be mine operators who may have been doing their business lawfully but who were not easily or readily identifiable.
Section 3(2) of the Nationalisation Act, 1973 made provision for taking over the management of such mines by declaring for "the removal of doubts" that if, after the appointed day, the existence of any other coal mine comes to the knowledge of the Central Government, the provisions of the Coal Mines (Taking Over of Management) Act, 1973, shall, until that mine is nationalist by an appropriate legislation, apply to such mine.
Owners of mines whose mines were not included in the Schedule but whose right, title and interest was to vest eventually in the Central Government under "an appropriate legislation" envisaged by section 3(2) of the Nationalisation Act were, by this method, placed on par with the owners of mines of which the management was taken over under the Coal Mines (Taking Over of Management) Act, 1973.
That Act provides by section 7(1) that every owner of a coal mine shall be given by the Central Government an amount in cash for the vesting in it, under section 3, of the management of such mine.
By section 7(2), for every months during which the management of a coal mine remains vested in the Central Government, the amount referred to in sub section (1) shall be computed at the rate of twenty paise per tone of coal on the highest monthly production of coal from such mine during any month in the years 1969, 1970, 1971 and 1972.
The two provisos to that subsection and the other sub sections of section 7 provide for other matters relating to payment of amounts to the owners of coal mines of which the management was taken over.
The Nationalisation Amendment Act carried the scheme of these two Acts to its logical conclusion by terminating the so called leases and sub leases which might have remained outstanding.
[1087 G H, 1088 A G] Thus, the purpose attained by these Acts is (1) to vest in the Central Government the right of management of all coal mines; (2) to nationalise the mines mentioned in the Schedule; (3) to provide for the taking over of management of coal mines the existence of which comes to the knowledge of the Central Government after the appointed day and lastly (4) to terminate all mining leases.
The Management Act and the Nationalisation Act provide for payment of amounts, by no means illusory, to the owners of coal mines whose rights were taken over.
In the normal course of human affairs, particularly business affairs, it is difficult to conceive that owners of coal mines who had even the vestige of a title thereto would not bring to the notice of the Central Government the existence of their mines, when such mines were not included in the Schedule to the Nationalisation Act.
Those who did not care to bring the existence of their mines to the knowledge of the Central Government, even though amounts are payable under the Management Act for the extinguishment of the right of management did not evidently possess even the semblance of a title to the mines.
The claims of lessees, holding or allegedly holding under such owners, would be as tenuous as the title of their putative lessors.
[1088 G H, 1089 A C] 12.
The Nationalisation Amendment Act by section 3(3) (b) undoubtedly terminates all existing leases and sub leases except those already granted in favour of persons referred to in clauses (i) to (iii) of section 3(3)(a).
Similarly section 3(3)(a) imposes an embargo on all future coal mining operations except in regard to the persons mentioned in clauses (i) to (iii).
But the 1053 generality of leases which are alleged to have remained outstanding despite the coming into force of the Management Act and the Nationalisation Act, were mostly precarious, whose holders could at best present the familiar alibi that the origin of their rights or of those from whom they derived title was lost in antiquity.
Neither in law, nor in equity and justice, nor under the Constitution can these lessees be heard to complain of the termination of their lease hold rights without the payment of any amount.
The provision contained in section 3(3)(b) of the Nationalisation Amendment Act was made ex majore cautela so as not to leave any lease of a coal mine surviving after the enactment of the Management Act and the Nationalisation Act.
There was no reasonable possibility of a lawful lease surviving the passing of those Acts; but if, per chance, anyone claimed that he held a lease, that stood terminated under section 3(3)(b).
[1089 C G] 13.
Section 3(3)(b) of the Nationalisation Amendment Act brings about an extinguishment simpliciter of coal mining leases within the meaning of Article 31A(1) (e) of the Constitution.
The termination of the mining leases and sub leases brought about by section 3(3)(b) of the Nationalisation Amendment Act is not a mere pretence for the acquisition of the mining business of the lessees and sub lessees.
The true intent of the Nationalisation Amendment Act was not to "acquire" anyone 's business.
This would be so whether the word 'acquire ' is understood in its broad popular sense or in the narrow technical sense which it has come to possess.
Whatever rights were intended to be acquired were paid for by the fixation of amount or by the laying down of a formula for ascertaining amounts payable for acquisition.
Having provided for payment of amounts for acquisition of management and ownership rights, it is unbelievable that the legislature resorted to the subterfuge of acquiring the mining business of the surviving lessees and sub lessees by the device of terminating their leases and sub leases.
The legislative history leading to the termination of coal mining leases points to one conclusion only that, by and large, every lawful interest which was acquired was paid for; the extinguishment of the interest which survived or which is alleged to have survived the passing of the Management Act and the Nationalisation Act was provided for merely in order to ensure that no loophole was left in the implementation of the scheme envisaged by those Acts.
Persons dealt with by section 3(3)(b) of the Nationalisation Amendment Act are differently situated from those who were dealt with by the two earlier Acts, namely, the Management Act and the Nationalisation Act.
No violation of Article 14 is, therefore, involved.
[1089 G 1090 D H, 1091 A B] 14.
The public purpose which informs the Nationalisation Amendment Act is the same which lies behind its two precursors, the Management Act and the Nationalisation Act.
The purpose is to re organise and re structure coal mines so as to ensure the rational, co ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country.
The Statement of Objects and Reasons of the Nationalisation Amendment Act points in the same direction.
Public purpose runs like a continuous thread through the well knit scheme of the three Acts under consideration.
[1091 B D] 15.
Making every allowance in favour of the right to property which was available at the relevant time and having regard to the substance of the matter and not merely to the form adopted for terminating the interest of the lessees and the sub lessees, the Nationalisation Amendment Act involves no acquisition of the interest of the lessees and the sub lessees.
It merely brings about in 1054 the language of Article 31A(1)(e) "the extinguishment" of their right, if any, to win coal.
Whichever right, title and interest was lawful and identifiable was acquired by the Management Act and the Nationalisation Act.
And whichever interest was acquired was paid for.
Tenuous and furtive interests which survived the passing of those Acts were merely extinguished by the Nationalisation Amendment Act.
[1091 F H, 1092 A] The interest of the lessees and sub lessees which was brought to termination by section 3(3)(b) of the Nationalisation Amendment Act does not come to be vested in the State.
The Act provides that excepting a certain class of leases and sub leases, all other leases and sub leases shall stand terminated in so far as they relate to the winning or mining of coal.
There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the Provisions of the Act.
Sub section (4) of section 3 of the Act provides that where a mining lease stands terminated under sub section (3), it shall be lawful for the Central Government or a Government Company or a corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated.
The plain intendment of the Act, which is neither a pretence nor a facade, is that once the outstanding leases and sub leases are terminated, the Central Government and the other authorities will be free to apply for a mining lease.
Any lease hold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by section 3(3)(b).
Another event has to intervene between the termination of existing leases and the creation of new interests.
The Central Government etc.
have to take a positive step for obtaining a prospecting licence or a mining lease.
Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government a Government Company or a Corporation owned, managed or controlled by the Central Government.
The essential difference between "acquisition by the State" on the one hand and "modification or extinguishment of rights" on the other, is that in the first case the beneficiary is the State while in the second the beneficiary is not the State.
The Nationalisation Amendment Act merely extinguishes the rights of the lessees and the sublesses.
It does not provide for the acquisition of those rights, directly or indirectly, by the State.
Article 31A(2A) will therefore come into play.
It follows that the Nationalisation Amendment Act must receive the protection of Article 31A(1)(e) of the Constitution, that is to say, that the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31.
[1092 F H, 1093 A H] Ajit Singh vs State of Punjab ; ; Madan Mohan Pathak vs Union of India & Ors. ; discussed and distinguished.
Dwarkadas Shrinivas vs The Sholapur Spinning & Weaving Co. Ltd. ; , 733 734 applied.
|
ition No. 1079 of 1979.
(Under Article 32 of the Constitution.) Dr. Y.S. Chitale, (Amicus Curiae) and Mukul Mudgal, for the petitioner.
862 R.N. Sachthey, H.S. Marwah and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER J.
"When they arrested my neighbour I did not protest.
When they arrested the men and women in the opposite house I did not protest.
And when they finally came for me, there was nobody left to protest.
" This grim scenario burns into our judicial consciousness the moral emerging from the case being that if to day freedom of one forlorn person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process in vigilates in time and polices the police before it is too late.
This futuristic thought, triggered off by a telegram from one Shukla, prisoner lodged in the Tihar Jail, has prompted the present 'habeas ' proceedings.
The brief message he sent runs thus: In spite of Court order and directions of your Lordship in Sunil Batra vs Delhi handcuffs are forced on me and others.
Admit writ of Habeas Corpus.
Those who are injured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which forms h part of our constitutional culture, and the positive provisions of articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness ' and security.
This sensitized perspective, shared by court and counsel alike, has prompted us to examine the issue from a fundamental viewpoint and not to dismiss it as a daily sight to be pitied and buried Indeed, we have been informed that the High Court had earlier dismissed this petitioner 's demand to be freed from fetters on his person but we are far from satisfied going by what is stated in Annexure A to the counter affidavit of the Asst.
Superintendent of Police, that the matter has received the constitutional concern it deserves.
Annexure A to the counter affidavit is a communication from the Delhi Administration for general guidance and makes disturbing reading as it has the flavour of legal advice and executive directive and makes mention of a petition for like relief in the High Court: The petition was listed before Hon 'ble Mr. Justice Yogeshwar Dayal of Delhi High Court.
After hearing arguments, 863 the Hon 'ble Court was pleased to dismiss the petition filed by the petitioner Shri P.S. Shukla asking for directions for not putting the handcuffs when escorted from jail to the court and back to the Jail.
In view of the circumstances of the case, it was observed that no directions were needed.
However, it came to my notice that the requirements of Punjab Police Rules contained in Volume III Chapter 25 Rule 26, 22, 23 and High Court Rules and orders Volume III Chapter 27 Rule 19 are not being complied with.
I would also draw the attention of all concerned to the judgment delivered by Mr. Justice R.N. Aggarwal in Vishwa Nath Versus State, Crl.
Main No. 430 of 1978 decided on 6 4 1979 wherein it has been observed that a better class under trial be not handcuffed with out recording the reasons in the daily diary for considering the necessity of the use of such a prisoner is being escorted to and from the court by the police, use of handcuffs be not reported to unless there is a reasonable expectation that such prisoner will use violence or that an attempt will be made to rescue him.
The practice of use of handcuffs be followed in accordance with the rules mentioned above.
In plain language, it means that ordinary Indian under trials shall be routinely handcuffed during transit between jail and court and the better class prisoner shall be so confined only if reasonably apprehended to be violent or rescued.
The facts are largely beyond dispute and need brief narration so that the law may be discussed and declared.
The basic assumption we humanistically make is that even a prisoner is a person, not an animal, that an under trial prisoner a fortiori so.
Our nation 's founding document admits of no exception on this subject as Sunil Batra 's case has clearly stated.
Based on this thesis, all measures authorised by the law must be taken by the court to keep the stream of prison Justice unsullied.
A condensed statement of the facts may help concritise the legal issue argued before us.
A prisoner sent a telegram to a judge of this Court (one of us) complaining of forced handcuffs on him and other prisoners, implicitly protesting against the humiliation and torture of being held in irons in public, back and forth, when, as under trials kept in custody in the Tihar Jail, they were being taken to Delhi courts for trial of their cases.
The practice persisted, bewails the petitioner, despite the court 's direction not to use irons on him and this led to 864 the telegraphic 'litany ' to the Supreme Court which is the functional sentinel on the qui vive where 'habeas ' justice is in jeopardy.
If iron enters the soul of law and of the enforcing agents of law rather, if it is credibly alleged so this court must fling aside forms of procedure and defend the complaining individual 's personal liberty under articles 14, 19 and 21 after due investigation.
Access to human justice is the essence of article 32, and sensitized by this dynamic perspective we have examined the facts and the law and the rival versions of the petitioner and the Delhi Administration.
The blurred area of 'detention jurisprudence ' where considerations of prevention of escape and personhood of prisoner come into conflict, warrants fuller exploration than this isolated case necessitates and counsel on both sides (Dr. Chitale as amicus curiae, aided ably by Shri Mudgal, and Shri Sachthey for the State) have rendered brief oral assistance and presented written submissions on a wider basis.
After all, even while discussing the relevant statutory provisions and constitutional requirements, court and counsel must never forget the core principle found in article 5 of the Universal Declaration of Human Rights, 1948: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." And read article 10 of the International Covenant on Civil and Political Rights: article 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Of course, while these larger considerations may colour our mental process, our task cannot over flow the actual facts of the case or the norms in Part III and the Provisions in the Prisoners (Attendance in Courts) Act, 1955 (for short, the Act).
All that we mean is that where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage, if within the reach of the judicial process.
In this jurisdiction, the words of Justice Felix Frankfurter are a mariner 's compass: "The history of liberty has largely been the history of observance of procedural safeguards.
And, in Maneka Gandhi 's case it has been stated: 865 'the ambit of personal liberty protected by article 21 is wide and comprehensive.
It embraces both substantive rights to personal liberty and the procedure provided for their deprivation." Has the handcuffs device if so, how far procedural sanction? That is the key question.
The prisoner complains that he was also chained but that fact is controverted and may be left out for the while.
Within this frame of facts we have to consider whether it was right that Shukla was shackled.
The respondent relies upon the provisions of the Act and the rules framed thereunder and under the Police Act as making shackling lawful.
This plea of legality has to be scanned for constitutionality in the light of the submissions of Dr. Chitale who heavily relies upon article 21 of the Constitution and the collective consciousness relating to human rights burgeoning in our half century.
The petitioner is an under trial prisoner whose presence is needed in several cases, making periodical trips between jail house and magistrate 's courts inevitable.
Being in custody he may try to flee and so escort duty to prevent escape is necessary.
But escorts, while taking responsible care not to allow their charges to escape, must respect their personhood.
The dilemma of human rights jurisprudence comes here.
Can the custodian fetter the person of the prisoner, while in transit, with irons, maybe handcuffs or chains or bar fetters? When does such traumatic treatment break into the inviolable zone of guaranteed rights? When does disciplinary measure end and draconic torture begin ? What are the constitutional parameters, viable guidelines and practical strategies which will permit the peaceful co existence of custodial conditions and basic dignity? The decisional focus turns on this know how and it affects tens of thousands of persons languishing for long years in prisons with pending trials Many.
Shukla 's in shackles are invisible parties before us that makes the issue a matter of moment.
We appreciate the services of Dr. Chitale and his junior Shri Mudgal who have appeared as amicus curiae and belighted the blurred area of law and recognise the help rendered by Shri Sachthey who has appeared for the State and given the full facts.
The petitioner claims that he is a 'better class ' prisoner, a fact which is admitted, although one fails to understand how there can be a quasi caste system among prisoners in the egalitarian context of article 14.
It is a sour fact of lire that discriminatory treatment based upon wealth and circumstances dies hard under the Indian Sun.
We hope the Ministry of Home Affairs and the Prison Administration will take due note of the survival after legal death of this invidious distinction and put all 866 prisoners on the same footing unless there is a rational classification based upon health, age, academic or occupational needs or like legitimate ground and not irrelevant factors like wealth, political importance, social status and other criteria which are a hang over of the hierarchical social structure hostile to the constitutional ethos.
Be that as it may, under the existing rules, the petitioner is a better class prisoner and claims certain advantage for that reason in the matter of freedom from handcuffs.
It is alleged by the State that there are several cases where the petitioner is needed in the courts of Delhi.
The respondents would have it that he is "an inter State cheat and a very clever trickster and tries to brow beat and misbehave with the object to escape from custody.
" of course, the petitioner contends that his social status, family background and academic qualifications warrant his being treated as a better class prisoner and adds that the court had directed that for that reason he be not handcuffed.
He also states that under the relevant rules better class prisoners are exempt from handcuffs and cites in support the view of the High Court of Delhi that a better class under trial should not be handcuffed without recording of reasons in the daily diary for considering the necessity for the use of handcuffs.
The High Court appears to have observed (Annexure A to the counter affidavit on behalf of the State) that unless there be reasonable expectation of violence or attempt to be rescued the prisoner should not be handcuffed.
The fact, nevertheless, remains that even apart from the High Court 's order the trial judge (Shri A. K. Garg) had directed the officers concerned that while escorting the accused from jail to court and back handcuffing should not be done unless it was so warranted. ".
I direct that the officers concerned while escorting the accused from jail to court and back, shall resort to handcuffing only if warranted by rule applicable to better class prisoners and if so warranted by the exigency of the situation on obtaining the requisite permission as required under the relevant rules.
" Heedless of judicial command the man was fettered during transit, under superior police orders, and so this habeas corpus petition and this Court appointed Dr. Y. section Chitale as amicus curiae, gave suitable directions to the prison officials to make the work of counsel fruitful and issued notice to the State before further action. "To wipe every tear from every eye" has judicial dimension.
Here is a prisoner who bitterly complains that he has been publicly handcuffed while being escorted to court and invokes the court 's power to protect the integrity of his person and the dignity of his humanhood against custodial cruelty contrary to constitutional prescriptions.
867 The Superintendent of the Jail pleaded he had nothing to do with the transport to and from court and Shri Sachthey, counsel for the Delhi Administration, explained that escorting prisoners between custodial campus and court was the responsibility of a special wing of the police.
He urged that when a prisoner was a security risk, irons were not allergic to the law and the rules permitted their use.
The petitioner was a clever crook and by enticements would escape from gullible constables.
Since iron was too stern to be fooled, his hands were clad with handcuffs.
The safety of the prisoner being the onus of the escort police the order of the trial court was not blindly binding.
The Rules state so and this explanation must absolve the police.
Many more details have been mentioned in the return of the police officer concerned and will be referred to where necessary but the basic defence, put in blunt terms, is that all soft talk of human dignity is banished when security claims come into stern play.
Surely, no cut and dried reply to a composite security versus humanity question can be given.
We have been persuaded by counsel to consider this grim issue because it occurs frequently and the law must be clarified for the benefit of the escort officials and their human charges.
Dr. Chitale 's contention comes to this: Human rights are not constitutional clap trap in silent meditation but part of the nation 's founding charter in sensitized animation.
No prisoner is beneath the law and while the Act does provide for rules regarding journey in custody when the court demands his presence, they must be read in the light of the larger back drop of human rights.
Here is a prisoner the petitioner who protests against his being handcuffed routinely, publicly, vulgarly and unjustifiably in the trips to and fro between the prison house and the court house in callous contumely and invokes the writ jurisdiction of this Court under article 32 to protect, within the limited circumstances of his lawful custody.
We must investigate the deeper issues of detainee 's rights against custodial cruelty and infliction of indignity.
within the human rights parameters of Part III of the Constitution, informed by the compassionate international charters and covenants.
The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention.
No longer is this liberating writ tramelled by the traditional limits of English vintage; for, our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction.
That is why, in India, as in the similar jurisdiction in America, the broader horizons of Habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades 868 human dignity or defiles his personhood to a degree that violates articles 21, 14 and l 9 enlivened by the Preamble.
The legality of the petitioner 's custody is not directly in issue but, though circumscribed by the constraints of lawful detention, the indwelling essence and inalienable attributes of man qua man are entitled to the great rights guranteed by the Constitution.
In Sunil Batra 's case (supra) it has been laid down by a Constitution Bench of this Court that imprisonment does not, ipso facto Mean that fundamental rights desert the detainee There is no dispute that the petitioner was, as a fact handcuffed on several occasions.
It is admitted, again, that the petitioner was so handcuffed on 6 10 1979 under orders of the Inspector of Police whose reasons set out in Annexure E, to say the least, are vague and unverifiable, even vagarious Counsel for the respondent in his written submissions states that the petitioner is involved in over a score of cases.
But that, by itself, is no ground for handcuffing the prisoner.
He further contends that the police authorities are in charge of escorting prisoners and have the discretion to handcuff them, a claim which must be substantiated not merely with reference to the Act and the Rules but also the Articles of the Constitution.
We may first state the law and then test that law on the touch stone of constitutionality.
Section 9(2)(e) of the Act empowers the State Government to make Rules regarding the escort of persons confined in a prison to and from courts in which their attendance is required and for their custody during the period of such attendance.
The Punjab Police Rules, 1934 (Vol.
III), contain some relevant provisions although the statutory source is not cited.
We may extract them here: 26.22(1) Every male person falling within the following category, who has to be escorted in police custody, and whether under police arrest, remand Conditions in which or trial, shall, provided that he handcuffs are to be appears to be in health and not used.
incapable of offering effective resistance by reason of age, be carefully handcuffed on arrest and before removal from any building from which he may he taken after arrest: (a) persons accused of a non bailable offence punishable with any sentence exceeding in severity a term of three years ' imprisonment.
869 (b) Persons accused of an offence punishable under section 148 or 226, Indian Penal Code.
(c) Persons accused of, and previously convicted of, such an offence as to bring the case under section 75, Indian Penal Code.
(d) Desperate characters.
(e) Persons who are violent, disorderly or obstructive or acting in a manner calculated to provoke popular demonstration.
(f) Persons who are likely to attempt to escape or to commit suicide or to be the object of an attempt at rescue.
This rule shall apply whether the prisoners are escorted by road or in a vehicle.
(2) Better class under trial prisoners must only be hand cuffed when this is regarded as necessary for safe custody, When a better class prisoner is handcuffed for reasons other than those contained in (a), (b) and (c) of sub rule (1) the officer responsible shall enter in the Station Diary or other appropriate record his reasons for considering the use of hand cuffs necessary.
This paragraph sanctions handcuffing as a routine exercise on arrest, if any of the conditions (a) to (f) is satisfied. 'Better Class ' under trial prisoners receive more respectable treatment in the sense that they shall not be handcuffed unless it is necessary for safe custody Moreover, when handcuffing better class under trials the officer concerned shall record the reasons for considering the use of handcuffs necessary.
Better class prisoners are defined in rule 26.21 A which also may be set out here: 26.21 A. Under trial prisoners are divided into two classes based on previous standard of living.
The classifying authority is the trying court subject to the approval of the District Magistrate, but during the period before a Classification of under prisoner is brought before a trial prisoners.
competent court, discretion shall be exercised by the officer in charge of the Police Station concerned to classify him as either 'better class ' or 'ordinary '.
Only those prisoners should be classified provisionally as 'better class ' who by social status, education or habit of life have been accustomed 870 to a superior mode of living.
The fact, that the prisoner is to be tried for the commission of any particular class of offence is not to be considered.
The possession of a certain degree of literacy is in itself not sufficient for 'better class ' classification and no under trial prisoner shall be so classified whose mode of living does not appear to the Police officer concerned to have definitely superior to that of the ordinary run of the population, whether urban or rural.
Under trial prisoners classified as 'better class ' shall be given the diet on the same scale as prescribed for A and B class convict prisoners in Rule 26.27(1).
The dichotomy between ordinary and better class prisoners has relevance to the facilities they enjoy and also bear upon the manacles that may be clamped on their person.
Social status, education.
mode of living superior to that of the ordinary run of the population are the demarcating tests.
Paragraph 27.12 directs that prisoners brought into court in handcuffs shall continue in handcuffs unless removal thereof is "specially ordered by the Presiding officer", that is to say, handcuffs even within the court is the rule and removal an exception.
We may advert to revised police instructions and standing orders bearing on handcuffs on prisoners since the escort officials treat these as of scriptural authority.
Standing order 44 reads: (1) The rules relating to handcuffing of political prisoners and others are laid down in Police Rules 18.30, 18.35, 26.22, 26.23 and 26.24.
A careful Perusal of these provisions shows that handcuffs are to be used if a person is involved in serious non bailable offences, is a previous convict, a desperate character, violent, disorderly or obstructive or a person who is likely to commit suicide or who may attempt to escape.
(2) In accordance with the instructions issued by the Government of India, Ministry of Home Affairs, New Delhi vide their letters No. 2/15/57 P IV dated 26 7 57 and No. 8/70/74 GPA I dated 5 11 74, copies of which were sent to all concerned vide this Hdqrs.
endst.
No. 19143 293/C&T dated 3 9 76, handcuffs are normally, to be used by the Police only where the accused/prisoner is violent, disorderly, obstructive or is likely to attempt 'to escape or commit suicide or is charged with certain serious non bailable ' offences.
(3) x x x x x x 871 (4) It has been observed that in actual practice prisoners/persons arrested by the police are handcuffed as a matter of routine.
This is to be strictly stopped forthwith.
(5) Handcuffs should not be used in routine.
They are to be used only where the person is desperate, rowdy or is involved in non bailable offence.
There should ordinarily be no occasion to handcuff Persons occupying a good social position in public life, or professionals like jurists, advocates doctors, writers, educationists and well known journalists.
This is at best an illustrative list; obviously it cannot be exhaustive.
It is the spirit behind these instructions that should be understood.
It shall be the duty of supervisory officers at various levels, the SHO primarily, to see that these instructions are strictly complied with.
In case of non observance of these instructions severe action should be taken against the defaulter.
There is a procedural safeguard in sub clause (6): (6) The duty officers of the police station must also ensure that an accused when brought at the police station or despatched.
the facts where he was handcuffed or otherwise should be clearly mentioned along with the reasons for handcuffing in the relevant daily diary report.
The SHO of the police station and ACP of the Sub Division will occasionally check up the relevant daily diary to see that these instructions are being complied with by the police station staff Political prisoners, if handcuffed, should not be walked through the streets (sub para 7) and so, by implication others can be.
These orders are of April 1979 and cancel those of 1972.
The instructions on handcuffs of November 1977 may be reproduced in fairness: In practice it has been observed that handcuffs are being used for under trials who are charged with the offences punishable with imprisonment of less than 3 years which is contrary to the instructions of P.P.R. unless and until the officer handcuffing the under trial has reasons to believe that the handcuff was used because the under trial was violent, disorderly or obstructive or acting in the manner calculated to provoke popular demonstrations or he has apprehensions that the person so handcuffed was likely to attempt to escape or to commit suicide or any other reason of that type for which he should record a report in D.D. before use of hand.
cuff when and wherever available.
872 The above instructions should be complied with meticulously and all formalities for use of handcuff should be done before the use of handcuffs.
This collection of handcuff law must meet the demands of articles 14, 19 and 21.
In the Sobraj case the imposition of bar fetters on B, a prisoner was subjected to constitutional scrutiny by this Court.
Likewise, irons forced on under trials in transit must conform to the humane imperatives of the triple articles.
Official cruelty, sans constitutionality, degenerates into criminality.
Rules, Standing orders, Instructions and Circulars must bow before Part III of the Constitution.
So the first task is to assess the limits set by these I articles.
The Preamble sets the humane tone and temper of the Founding Document and highlights Justice, Equality and the dignity of the individual.
article 14 interdicts arbitrary treatment discriminatory dealings and capricious cruelty.
article 19 prescribes restrictions on free movement unless in the interests of the general public.
Art 21 after the landmark case in Maneka Gandhi followed by Sunil Batra (supra) is the sanctuary of human values prescribes fair procedure and forbids barbarities, punitive or processual.
Such is the apercu, if we may generalise.
Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh and at the first flush, arbitrary.
Absent fair procedure and objective monitoring, to inflict 'irons ' is to resort to zoological strategies repugnant to article 21.
Thus, we must critically examine the justification offered by the State for this mode of restraint.
Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised.
To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.
Where then do we draw the humane line and how far do the rules err in print and praxis ? Insurance against escape does not compulsorily require hand cuffing.
There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions.
Indeed, binding together either the 873 hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness.
Manacles are mayhem on the human person and inflict humiliation on the bearer.
The Encyclopaedia Britannica, Vol.
II (1973 Edn.) at p. 53 states "handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment.
" The three components of 'irons ' forced on the human person must be distinctly understood.
Firstly, to handcuff is to hoop harshly.
Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also.
Iron straps are insult and pain writ large, animalising victim and keeper.
Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily.
The latest police instructions produced before us hearteningly reflect this view.
We lay down as necessarily implicit in articles 14 and 19 that when there is no compulsive need to fetter a person 's limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him.
Such arbitrary conduct surely slaps article 14 on the face.
The criminal freedom of movement which even a detainee is entitled to under article 19 (see Sunil Batra, supra) cannot be cut down cruelly by application of handcuffs or other hoops.
It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstance so hostile to safe keeping.
Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort and we declare that to be the law the distinction between classes of prisoners becomes constitutionally obsolete.
Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under trial is any different from a poor or pariah convict or under trial in the matter of security risk ? An affluent in custody may be as dangerous or desperate as an indigent, if not more.
He may be more prone to be rescued than an ordinary person.
We hold that it is arbitrary and irrational to classify, prisoners for purposes of handcuffs, into 'B ' class and ordinary class.
No one shall be fettered in any form based on superior class differentia, as the law treats them equally.
It is brutalising to handcuff a person in public and so is unreasonable to do so.
Of course, the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration.
874 The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances.
Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf.
But even here, the policeman 's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough.
The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances.
Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability.
So it is that to be consistent with articles 14 and 19 handcuffs must be the last refuge, not the routine regimen.
If a few more guards will suffice, then no handcuffs.
If a close watch by armed policemen will do, then no handcuffs.
If alternative measures may be provided, then no iron bondage.
This is the legal norm.
Functional compulsions of security must reach that dismal degree that no alternative will work except manacles.
We must realise that our Fundamental Rights are heavily loaded in favour of personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die hard.
Discipline can be exaggerated by prison keepers; dangerousness can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the values of dignity and humanity.
We regret to observe that cruel and unusual treatment has an unhappy appeal to jail keepers and escorting officers, which must be countered by strict directions to keep to the parameters of the constitution.
The conclusion flowing from these considerations is that there must first be well grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick.
The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic.
Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac, cannot suffice.
In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit the onus of proof of which is on him who puts the person under irons the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge.
It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron ' restraint.
875 Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control.
It is hard to imagine such situations.
We must repeat that it is unconscionable, indeed, outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing.
This elitist concept has no basis except that on the assumption the ordinary Indian is a sub citizen and freedoms under Part III of the constitution are the privilege of the upper sector of society.
We must clarify a few other facets, in the light of Police Standing orders.
Merely because a person is charged with a grave offence he cannot be handcuffed, He may be very quiet, well behaved, docile or even timid.
Merely because the offence is serious, the inference of escape proneness or desperate character does not follow.
Many other conditions mentioned in the Police Manual are totally incongruous with what we have stated above and must fall as unlawful.
Tangible testimony, documentary or other, or desperate behaviour, geared to making good his escaped alone will be a valid ground for handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well protected vans.
It is heartening to note that in some States in this country no handcuffing is done at all, save in rare cases, when taking under trials to courts and the scary impression that unless the person is confined in irons he will run away is a convenient myth.
Some increase in the number of escorts, arming them if necessary, special training for escort police, transport of prisoners in protected vehicles, are easily available alternatives and, in fact, are adopted in some States in the country where handcuffing is virtually abolished, e.g. Tamil Nadu.
Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so.
Otherwise, under article 21 the procedure will be unfair and bad in law.
Nor will mere recording the reasons do, as that can be a mechanical process mindlessly made.
The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasons so recorded to the Presiding Judge and get his approval.
Otherwise, there is no control over 876 possible arbitrariness in applying handcuffs and fetters.
The minions of the police establishment must make good their security recipes by getting judicial approval.
And, once the court directs that handcuffs shall be off no escorting authority can overrule judicial direction.
This is implicit in article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty.
The ratio in Maneka Gandhi 's case and Sunil Batra 's ease (supra), read in its proper light, leads us to this conclusion.
We, therefore, hold that the petition must be allowed and handcuffs on the prisoner dropped.
We declare that the Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (paragraphs 26.21A and 26 .22 of Chapter XXVI) is untenable and arbitrary and direct that Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs.
The provisions in para 26.22 that every under trial who is accused of a non bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of articles 14, 19 and 21.
So also para 26.22 (b) and (c).
The nature of the accusation is not the criterion.
The clear and present danger of escape breaking out of the police control is the determinant.
And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced.
We go further to hold that para 26.22 (1) (b), (e) and (f) also hover perilously near unconstitutionality unless read down as we herein direct. 'Desperate character ' is who ? Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible.
Armed escorts, worth the salt, can overpower any unarmed under trial and extraguards can make up exceptional needs.
In very special situations, we do not rule out the application of irons The same reasoning appears to (e) and (f).
Why torture the prisoner because others will demonstrate or attempt his rescue ? The plain law of under trial custody is thus contrary to the unedifying escort practice.
We remove the handcuffs from the law and humanize the police praxis to harmonise with the satvic values of Part III.
The law must be firm, not foul, stern, not sadistic, strong, not callous.
Traditionally, it used to be thought that the seriousness of the possible sentence is the decisive factor for refusal of bail.
The assumption was that this gave a temptation for the prisoner to escape.
This is held by modern penologists to be a psychic fallacy and the bail jurisprudence evolved in the English and American Jurisdictions and 877 in India now takes a liberal view.
The impossibility of easy recapture supplied the temptation to jump custody, not the nature of the offence or sentence.
Likewise, the habitual or violent 'escape propensities ' proved by past conduct or present attempts are a surer guide to the prospects of running away on the sly or by use of force than the offence with which the person is charged or the sentence.
Many a murderer, assuming him to be one, is otherwise a normal, well behaved, even docile, person and it rarely registers in his mind to run away or force his escape.
It is all indifferent escort or incompetent guard, not the Section with which the accused is charged, that must give the clue to the few escapes that occur.
To abscond is a difficult adventure.
No study of escapes and their reasons has been made by criminologists and the facile resort to animal keeping methods as an easy substitute appeals to Authority in such circumstances. 'Human rights ', seriousness loses its valence where administrator 's convenience prevails over cultural values.
The fact remains for its empirical worth, that in some States, e.g. Tamil Nadu and Kerala, handcuffing is rarely done even in serious cases, save in those cases where evidence of dangerousness, underground operations to escape and the like is available.
It is interesting that a streak of humanism had found its place in the law of handcuffing even in the old Bombay Criminal Manual which now prevails in the Gujarat State and perhaps in the Maharashtra State.
But in the light 878 of the constitutional imperatives we have discussed, we enlarge the law of personal liberty further to be in consonance with fundamental rights of persons in custody.
There is no genetic criminal tribe as such among humans.
A disarmed arrestee has no hope of escape from the law if recapture is a certainty.
He heaves a sigh of relief if taken into custody as against the desperate evasions of the chasing and the haunting fear that he may be caught anytime.
It is superstitious to practise the barbarous bigotry of handcuffs as a routine regimen an imperial heritage, well preserved.
The problem is to get rid of mind cuffs which make us callous to hand cuffing a prisoner who may be a patient even in the hospital bed and tie him up with ropes to the legs of the cot.
Zoological culture cannot be compatible with reverence for life, even of a terrible criminal.
We have discussed at length what may be dismissed as of little concern.
The reason is simple.
Any man may, by a freak of fate, become an under trial and every man, barring those who through wealth and political clout, are regarded as V.I.Ps, are ordinary classes and under the existing Police Manual may be man handled by handcuffs.
The peril to human dignity and fair procedure is, therefore, widespread and we must speak up.
Of course, the 1977 and 1979 'instructions ' we have referred to earlier show a change of heart.
This Court must declare the law so that abuse by escort constables may be Repelled.
We repeat with respect, the observations in Wiliam King Jackson vs D.E. Bishop.
(1) We are not convinced that any rule or regulation as to the use of the strap, however seriously or sincerely conceived and drawn, will successfully prevent abuse.
The present record discloses misinterpretation even of the newly adopted (2) Rules in this area are seen often to go unobserved.
(3) Regulations are easily circumvented (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous.
(5) Where power to punish is granted to persons in lower levels of administrative authority, there is an inherent and natural difficulty in enforcing the limitations of that power.
879 Labels like 'desperate ' and 'dangerous ' are treacherous.
Kent section Miller, writing on 'dangerousness ' says: Considerable attention has been given to the role of psychological tests in predicting dangerous behaviour, and there is a wide range of opinion as to their value.
Thus far no, structured or projective test scale has been derived which, when used alone will predict violence in the individual case in a satisfactory manner.
Indeed, none has been developed which will adequately postdict let alone predict, violent behaviour. .
But we are on dangerous ground when deprivation of liberty occurs under such conditions.
The practice has been to markedly overpredict.
In addition, the courts and mental health professionals involved have systematically ignored statutory requirements relating to dangerousness and mental illness. .
In balancing the interests of the state against the loss of liberty and rights of the individual, a prediction of dangerous behaviour must have a high level of probability, (a condition which currently does not exist) and the harm to be prevented should be considerable.
A law which handcuffs almost every undertrial (who, presumably, is innocent) is itself dangerous.
Before we conclude, we must confess that we have been influenced by the thought that some in authority are sometimes moved by the punitive passion for retribution through the process of parading under trial prisoners cruelly clad in hateful irons.
We must also frankly state that our culture, constitutional and other, revolts against such an attitude because, truth to tell. 'each tear that flows, when it could have been spared, is an accusation, and he commits a crime who with brutal inadvertancy crushes a poor earthworm. ' We clearly declare and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jailwarder that the rule regarding a prisoner in transit between prison house and court house is freedom from hand cuffs and the exception, under conditions of judicial supervision we 880 have indicated earlier, will be restraints with irons, to be justified before or after.
We mandate the judicial officer before when the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other "irons" treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this Judgment.
PATHAK, J: I have read the judgment of my learned brother Krishna Iyer with considerable interest but I should like to set forth my own views shortly.
It is an axiom of the criminal law that a person alleged to have committed an offence is liable to arrest.
In making an arrest, declares section 46 of the Code of Criminal Procedure, "the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
" If there is forcible resistance to the endeavour to arrest or an attempt to evade the arrest, the law allows the police officer or other person to use all means necessary to effect the arrest.
Simultaneously, section 49 provides that the person arrested must "not be subjected to more restraint than is necessary to prevent his escape.
" The two sections define the parameters of the power envisaged by the Code in the matter of arrest.
And section 46, in particular, foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody.
Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape, and it should not be more than is necessary to prevent him from escaping.
Viewed in the light of the law laid down by this Court in Sunil Batra vs Delhi Administration and others that a person in custody is not wholly denuded of his fundamental rights, the limitations following from that principle acquire a profound significance.
The power to restrain, and the degree of restraint to be employed, are not for arbitrary exercise.
An arbitrary exercise of that power infringes the fundamental rights of the person in custody.
And a malicious use of that power can bring section 220 of the Indian Penal Code into play.
Too often is it forgotten that if a police officer is vested with the power to restrain a person by hand cuffing him or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power.
Whether a person should be physically restrained and, if so, what should be the degree of restraint, is a matter which affects the person in custody so long as he remains in custody.
Consistent with 881 the fundamental rights of such person the restraint can be imposed, if at all, to a degree no greater than is necessary for preventing his escape.
To prevent his escape is the object of imposing the restraint, and that object defines at once the bounds of that power.
The principle is of significant relevance in the present case.
The petitioner complaints that he is unnecessarily handcuffed when escorted from the jail house to the court building, where he is being tried for criminal offences, and back from the court building to the jail house.
He contends that there is no reason why he should be handcuffed.
On behalf of the respondent it is pointed out by the Superintendent Central Jail, Tihar, where the petitioner is detained, that the police authorities take charge of prisoners from the main gate of the jail for the purpose of escorting them to the court building and back, and that the jail authorities have no control during such custody over the manner in which the prisoners are treated.
S.9(2) (e) of the Prisoners (Attendance in Courts) Act, 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from courts in which their attendance is required and for their custody during the period of such attendance.
The Punjab Police Rules, 1934 contain Rule 26.22 which classifies those cases in which handcuffs may be applied.
The classification has been attempted some what broadly, but it seems to me that some of the clauses of Rule 26.22, particularly clauses (a) to (c), appear to presume that in every instance covered by any of those clauses the accused will attempt to escape.
It is difficult to sustain the classification attempted by those clauses.
The rule, I think, should be that the authority responsible for the prisoners custody should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent.
That is the basic criterion, and all provisions relating to the imposition of restraint must be guided by it.
In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree.
Rule 26.22 read with rule 26.21 A of the Punjab Police Rules, 1934 draw a distinction between "better class" undertrial prisoners and "ordinary" undertrial prisoner 35 a basis for determining who should be handcuffed and who should not be.
As I have observed, the appropriate principle for a classification should be defined by the need to prevent the prisoner escaping from custody or becoming violent.
The social status of a person, his education and habit of life associated with superior mode of living seem to me to be intended to protect his 882 dignity of person.
But that dignity is a dignity which belongs to all, rich and poor, of high social status and low, literate and illiterate.
It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of the prisoner attempting to escape or attempting violence.
It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to "a better class", that he does not possess the basic dignity pertaining to every individual.
Then there is need to guard against a misuse of the power from other motives.
It is grossly objectionable that the power given by the law to impose a restraint, either by applying handcuffs or otherwise, should be seen as an opportunity for exposing the accused to public ridicule and humiliation.
Nor is the power intended to be used vindictively or by way of punishment.
Standing order 44 and the Instructions on Handcuffs of November, 1977, reproduced by my learned brother, evidence the growing concern at a higher level of the administration over the indiscriminate manner in which handcuffs are being used.
To my mind, even those provisions operate somewhat in excess of the object to be subserved by the imposition of handcuffs, having regard to the central principle that only he should be handcuffed who can be reasonably apprehended to attempt an escape or become violent.
Now whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody.
It is a judgment to be exercised with reference to each individual case.
It is for that authority to exercise its discretion, and I am not willing to accept that the primary decision should be that of any other.
The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision of the escorting authority midway to decide on imposing a restraint on the prisoner.
I do not think that any prior decision of an external authority can be reasonably imposed on the exercise of that power.
But I do agree that there is room for imposing a supervisory regime over the exercise of that power.
One sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused.
It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control.
In the present case it seems sufficient, in my judgment, that the question whether the petitioner should be handcuffed should be left 883 to be dealt with in the light of the observations made herein by the Magistrate concerned, before whom the petitioner is brought for trial in the cases instituted against him.
The petition is disposed of accordingly.
section R. Petition allowed.
| IN-Abs | Allowing the petition the Court ^ HELD: Per Iyer J. (on behalf of Chinnappa Reddy J. and himself).
The guarantee of human dignity forms part of an Constitutional culture and the positive provisions of Articles 14, 19 and 21 spring into action to disshackle any man since to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness ' and security.
Even a prisoner is a person not an animal, and an under trial prisoner is a fortiori so.
Our nations founding document admits of no exception.
Therefore, all measures authorised by the law must be taken by the Court to keep the stream of prison justice unsullied.
[862 D F, 863 E F] Sunil Batra vs Delhi Administration and ors.
; ; followed .
The Supreme Court is the functional sentinel on the qui vive where "habeas" justice is in jeopardy.
If iron enters the soul of law and of the enforcing agents of law rather, if it is credibly alleged so the Supreme Court must fling aside forms of procedure and defend the complaining individual 's personal liberty under Articles 14 19 and 21 after due investigation.
Access to human justice is the essence of Article 32.
[864 A B] 3.
Where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage.
if within the reach of judicial process.
[864 F G] 4.
There cannot be a quasi caste system among prisoners in the egalitarian context of Article 14.
In plain language, to say that the "better class under trial be not handcuffed without recording the reasons in the daily diary for considering the necessity of the use on such a prisoner while escort to and from court" means that ordinary Indian under trials shall be rentively handcuffed during transit between jail and court auld the better class prisoner 856 shall be so confined only if reasonably apprehended to be violent or rescued and is against the express provisions of Article 21.
[863 D E, 865 G H] Maneka Gandhi vs Union of India [1978] 2 SCR 621 @ 647; applied.
Vishwanath vs State Crl.
Main No. 430 of 1978 decided on 6 4 79 (Delhi High Court), overruled.
Though circumscribed by the constraints of lawful detention, the indwelling essence and inalienable attributes of man qua man are entitled to the great rights guaranteed by the Constitution.
That is why in India, as in the similar jurisdiction in America, the broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a degree that violates Articles 21, 14 and 19 enlivened by the Preamble.
[868 A B, 867 G H] 6.
The collection of handcuff law, namely, Prisoners (Attendance in Courts) Act, 1955; Punjab Police Rules, 1934, (Vol.
III) Rules 26: 22(i) (a) to (f); 26.21A, 27.12, Standing order 44, Instruction on handcuffs of November, 1977, and orders of April 1979, must meet the demands of Articles 14, 19 and 21.
Irons forced on under trials in transit must conform to the humane imperatives of the triple Articles.
Official cruelty, sans constitutionality degenerates into criminality.
Rules, standing orders, Instructions and Circulars must bow before Part III of the Constitution.
[872 B D] The Preamble sets the human tone and temper of the Founding Document and highlights justice, Equality and the dignity of the individual.
Article 14 interdicts arbitrary treatment, discriminatory dealings and capricious cruelty.
Article 19 prescribes restrictions on free movement unless in the interests of the general public.
Article 21 is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural.
such is the apercu.
[872 C E] Maneka Gandhi vs Union of India, [1978] 2 SCR 621 @ 647; Sunil Batra vs Delhi Administration, [1978] 4 S.C.C. 494 @ 545; reiterated.
Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh And at the first blush, arbitrary.
Absent fair procedure and objective monitoring to inflict "irons" is to resort to zoological strategies repugnant to Article 21.
Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonized.
To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself be castigated.
But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our Constitutional culture.
[872 F G] 8.
Insurance against escape does not compulsorily required handcuffing.
There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron In contraptions.
Indeed, binding together either the hands or feet or both has not merely a preventive impact but also a punitive hurtfulness.
Manacles are mayhem on the human person and inflict humiliation on the bearer.
857 The three components of "irons" forced on the human person are: to handcuff i.e., to hoop harshly to punish humiliatingly and to vulgarise the viewers also.
Iron straps are insult and pain writ large, animalising victim and keepers.
Since there are other ways of ensuring safety as a rule handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily.
As necessarily implicit in Articles 14 and 19, when there is no compulsive need to fetter a person 's limbs it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him.
Such arbitrary conduct surely slaps Article 14 on the face.
The animal freedom of movement, which even a detained is entitled to under Article 19, cannot be cut down cruelly by application of handcuffs or other hoops.
lt will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping.
[872 G H, 873 A E] 9.
Once the Supreme Court make it a constitutional mandate and law that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort, the distinction between classes of prisoners become constitutionally obsolete.
Apart from the fact that economic an i social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, a rich criminal or under trial is in no way different from a poor or pariah convict or under trial in the matter of security risk.
An affluent in custody may be as dangerous or desperate as an indigent, if not more.
He may be more prone to be rescued than an ordinary person.
Therefore, it is arbitrary and irrational to classify prisoners for purposes of handcuffs, into 'B ' class and ordinary class.
No one shall be fettered in any form based on superior class differential as the law heats them equally.
It is brutalising to handcuff a person in public and so is unreasonable to do so.
Of course, the police escort will find it comfortable to fetter their charges and be at ease, but that is not a relevant consideration.
[873 E H] 10.
The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances.
Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf.
But even here, the policeman 's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough.
The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances.
Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability.
So it is that to be consistent with articles 14 an(l 19 handcuffs must be the last refuge, not the routine regimen.
If a few more guards will suffice, then no handcuffs.
If a close watch by armed policemen will do, then no handcuffs.
If alternative measures may be provided, then no iron bondage.
This is the legal norm.
[874 A C] Functional compulsions of security must reach that dismal degree that no alternative will work except manacles.
Our Fundamental Rights are heavily loaded in favour or personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die hard.
Discipline can be exaggerated by prison 858 keepers; dangerousness can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the finer values of dignity and humanity.
[874 D E] Therefore, there must first be well grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick.
The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac, cannot suffice.
In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit the onus of proof of which is on him who puts the person under irons the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge.
It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron ' restraint.
[874 F H] 11.
Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control.
It is hard to imagine such situations.
It is unconscionable, indeed outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing.
This elitist concept has no basic except that on the assumption the ordinary Indian is a sub citizen and freedoms under Part III of the Constitution are the privilege of the upper sector of society.
[875 A C] Merely because a person is charged with a grave offence he cannot be handcuffed.
He may be very quiet, well behaved, docile or even timid.
Merely because the offence is serious, the inference of escape proneness or desperate character does not follow.
Many other conditions mentioned in the Police Manual are totally incongruous and must fall as unlawful.
Tangible testimony, documentary or other, or desperate behaviour, geared to making good his escape, along will be a valid ground for handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well protested vans.
And increase in the number of escorts, arming them if necessary special training for escorts police, transport of prisoners in protected vehicles, are easily available alternatives.
[875 C E] 12.
Even in cases where, in extreme circumstances handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so.
otherwise under article 21 the procedure will be unfair and bad in law.
Nor will mere recording of the reasons do, as that can be a mechanical process mindlessly made.
The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasons so recorded to the Presiding Judge and get his approval.
Otherwise, there is no control over possible arbitrariness in applying handcuffs and fetters.
The minions of the police establishment must make good their security recipes by getting judicial approval.
And, once the court directs that handcuffs shall 859 be off, no escorting authority can overrule judicial direction.
This is implicit in article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty.
[875 G H, 876 A] Maneka Gandhi vs Union of India [1978] 2 SCR 621, and Sunil Batra vs Delhi Administration ; ; applied. 13.
Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (paragraphs 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary and Indian humans shall not be dischotomised and the common run discriminated against regarding handcuffs.
The provisions in para 26.22 that every under trial who is accused of a non bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of articles 14, 19 and 21.
So also para 26.22 (b) and (c).
The nature of the accusation is not the criterion.
The clear and present danger of escape breaking out of the police control is the determinant.
And for this there must be clear material not qlib assumption record of reasons and judicial oversight and summary hearing and direction by the Court where the victim is produced.
Para 26, 22(1)(d), (e) and (f) also hover perilously near unconstitutionality unless read down Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible.
Armed escorts, worth the salt, can overpower any unarmed under trial and extraguards can make up exceptional needs.
In very special situations, the application of irons cannot be ruled out.
The prisoner cannot be tortured because others will demonstrate or attempt his rescue.
The plain law of under trial custody is thus contrary to unedifying escort practice.
[876 C G] 14.
The impossibility of easy recapture supplied the temptation to jump custody, not the nature of the offence or sentence.
Likewise, the habitual or violent 'escape propensities ' proved by past conduct or present attempts are a surer guide to the prospects of ruling away on the sly or by use of force than the offence with which the person is charged or the sentence.
Many a murderer, assuming him to be one, is otherwise a normal, well behaved, even docile, person and it rarely registers in his mind to run away or force his escape.
It is an indifferent escort or incompetent guard, not the Section with which the accused is charged, that must give the clue to the few escapes that occur.
To abscond is a difficult adventure.
"Human rights" seriousness loses it valence where administrator 's convenience prevails over cultural values.
There is no genetic criminal tribe as such among humans.
A disarmed arrestee has no hope of escape from the law if recapture is a certainty.
He heaves a sigh of relief if taken into custody as against the desperate evasions of the chasing and the haunting fear that he may be caught any time It is superstitious to practise the barbarous bigotry of handcuffs as a routine regimen an imperial heritage well preserved.
The problem is to get rid of mind cuffs which make us callous to hand cuffing prisoner who may be a patient even in the hospital bed and tie him up with ropes to the legs of the cot.
[877 A D, 878 A C] 15.
The rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception, under conditions of judicial supervision will be restraints with irons to be justified before or after.
The judicial officers, before whom the prisoner is Produced shall 860 interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other 'irons ' treatment and, if he has been, the official concerned shall he asked to explain the action forthwith.
[879 G H, 880 A B] Per Pathak J. (Concurring) 1.
It is an axiom of criminal law that a person alleged to have committed an offence is liable to arrest.
Sections 46 and 49 of the Code of Criminal Procedure define the parameters of the power envisaged in the Code in the matter of arrest.
And section 46, in particular foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody.
Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape, and it should not be more than is necessary to prevent him from escaping.
Viewed in the light of the law laid down by this Court in Sunil Batra vs Delhi Administration and ors.
; , ; that a person in custody is not wholly denuded of his fundamental rights, the limitations flowing from that principle acquire a profound significance.
[880 C F] The power to restrain, and the degree of restraint to be employed, are not for arbitrary exercise.
An arbitrary exercise of that power infringes the fundamental rights of the person in custody.
And a malicious use of that power can bring section 220 of the Indian Penal Code into play.
Too often is it forgotten that if a police officer is vested with the power to restrain a person by handcuffing hum or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power.
[880 F G] 2.
Whether a person should be physically restrained and, if so, what should be the degree of restraint, is a matter which affects the person in custody so long as he remains in custody.
Consistent with the fundamental rights of such person the restraint can be imposed, if at all, to a degree no greater than is necessary for preventing his escape.
To prevent his escape is the object of imposing the restraint and that object at once defines that power.
[880 H, 881 A] 3.
Section 9(2)(e) of the Prisoners (Attendance in Court) Act, 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from Courts in which their attendance is required and for their custody during the period of such attendance.
The Punjab Police Rules, 1934 contain Rule 26.22 which classifies those cases in which hand cuffs may be applied.
The classification has been attempted somewhat broadly.
But the classification attempted by some of the clauses of Rule 26.22, particularly (a) to (c) which presume that in every instance covered by any of these clauses the accused will attempt to escape cannot be sustained.
[881 C E] The rule should be that the authority responsible for the prisoners custody should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent.
That is the basic criterion, and all provisions relating to the imposition of restraint must be guided by it.
In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree.
[881 E G] 861 4.
Rule 26.22 read with Rule 26.21 A of the Punjab Police Rules 1934 draw a distinction between "better class" under trial prisoners and "ordinary" under trial prisoners, as a basis for determining who should be handcuffed and who should not be.
The social status of a person, his education and habit of life associated with a superior mode of living is intended to protect his dignity of person.
But that dignity is a dignity which belongs to all, rich and poor, of high social status and low, literate and illiterate.
It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of the prisoner attempting to escape or attempting violence.
It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to "a better class", that he does not possess the basic dignity pertaining to every individual.
Then there is need to guard against a misuse of the power from other motives.
It is grossly objectionable that the power given by the law to impose a restraint, either by applying handcuffs or otherwise, should be seen as an opportunity for exposing the accused to public ridicule and humiliation.
Nor is the power intended to be used vindictively or by way of punishment.
Even Standing order 44 and the instructions on handcuffs of November 1977 operate some what in excess of the object to be observed by the imposition of handcuffs, having regard to the central principle that only he should be handcuffed who can be reasonably apprehended to attempt from escape or become violent.
[881 G H. 882 A D] 5.
Whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody.
It is a judgment to be exercised with reference to each individual case.
It is for that authority to exercise its discretion.
The primary decision should not be that of any other The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision of the escorting authority midway to decide on imposing a restraint on the prisoner.
The prior decision of an external authority can not be reasonably imposed on the exercise of that power.
But there is room for imposing a supervisory regime over the exercise of that power.
One sector of superviory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused.
It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control 882 E G] 6.
In the present case, the question whether the petitioner should be handcuffed should be left to be dealt with by the Magistrate concerned before whom he is brought for trial in the cases instituted against him.
[882 H, 883 A]
|
Civil Appeal No. 1 197 (NT) of 1974.
Appeal by Special Leave from the Judgment and order dated 3 8 1973 of the Calcutta High Court in Income Tax Reference No. 109 of 1968.
D. Pal, T. A. Ramachandran & D. N. Gupta for the Appellant.
section T. Desai, B. B. Ahuja & Miss A. Subhashini for the Respondent.
1375 The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises the vexed question whether a particular expenditure incurred by the assessee is of capital or revenue nature.
This question has always presented a difficult problem and continually baffled the courts, because it has not been possible, despite occasional judicial valour, to formulate a test for distinguishing between capital and revenue expenditure which will provide an infallible answer in all situations.
There have been numerous decisions where this question has been debated but it is not possible to reconcile the reasons given in all of them, since each decision has turned upon some particular aspect which has been regarded as crucial and no general principle can be deduced from any decision and applied blindly to a different kind of case where the constellation of facts may be dissimilar and other factors may be present which may give a different hue to the case.
Often cases fall in the border line and in such cases, as observed by Lord M. R. in Inland Revenue vs British Salmon Ero Engines Ltd.(1) "the spin of coin would decide The matter almost as satisfactorily as an attempt to find persons.
" But this is not one of those border line cases.
The answer to the question here is fairly clear.
But first let us state the necessary facts.
The assessee is a limited company carrying on business of manufacture of jute.
It has a factory with a certain number of looms situate in West Bengal.
It is a member of the Indian Jute Mills Association (hereinafter referred to as the Association).
The Association consists of various jute manufacturing mills as its members and it has been formed with a view to protecting the interests of the members.
The objects of the Association, inter alia, are (i) to protect, forward and defeat the trade of members; (ii) to impose restrictive conditions on the conduct of the trade; and (iii) to adjust the production of the Mills in the membership of the Association to the demand of the world market.
It appears that right from 1939, the demand of jute in the world market was rather lean and with a view to adjusting the production of the mills to the demand in the world market, a working time agreement was entered into between the members of the Association restricting the number of working hours per week, for which the mills shall be entitled to work their looms.
The first working time agreement was entered into on 9th January 1939 and it was for a duration of five years and on its expiration, the second and thereafter the third working time agreements, each for a period of five years and in .
more or less similar terms, were entered into on 12th June, 1944 and 25th November 1949 respectively.
The third working time agreement was about to expire on 11th December, 1954 and since it 1376 was felt that the necessity to restrict the number of working hours per week still continued, a fourth working time agreement was entered into between the members of the Association on 9th December 1954 and it was to remain in force for a period of five years from 12th December 1954.
We are concerned in this appeal with the fourth working time agreement and since the decision of the controversy before us turns upon the interpretation of its true nature and effect, we shall refer to some of its relevant provisions.
The first clause of the fourth working time agreement (hereinafter referred to as the "working time agreement") to which we must refer is clause (4) which provided that, subject to the provisions of clauses 11 and 12, ". . no signatory shall work more than forty five hours of work per week and such restriction of hours of work per week shall continue in force until the number of working hours allowed shall be altered in accordance with the provisions of Clauses 7(1), (2) and (3).
" Clause (5) then proceeded to explain that the number of working hours per week mentioned in the working time agreement represented the extent of hours to which signatories were in all entitled in each week to work their registered complement of looms as determined under clause (13) on the basis that they used the full complement of their loomage as registered with and certified by the committee.
This clause also contained a provision for increase of the number of working hours per week allowed to a signatory in the event of any reduction in his loomage.
It was also stipulated in this clause that the hours of work allowed to be utilised in each week shall cease at the end of that week and shall not be allowed to be carried forward.
The number of working hours per week prescribed by clause (4) was, as indicated in the opening part of that clause, subject inter alia to the provision of clause (10) and under that clause, a joint and several agreement could be made providing that throughout the duration of the working time agreement, members with registered complements of looms not exceeding 220 shall be entitled to work upto 72 hours per week.
Clause 6(a) enabled members to be registered as a "Group of Mills" if the happened to be under the control of the same managing agents or were combined by any arrangement or agreement and it was open to any member of the Group of Mills so registered to utilise the allotment of hours of work per week of other members in the same group who were not fully utilising the hours of work allowable to them under the working time agreement, provided that such transfer of hours of work was for a period of not less than six months.
Then followed clause 6(b) which is very material and it provided, inter alia, as follows: "Subject to the provisions of sub clauses (i) to (iv). signatories to this agreement shall be entitled to transfer in 1377 part or wholly their allotment of hours of work per week to any one or more of the other signatories; and upon such transfer being duly effected and registered and a certificate issued by the committee, the signatory or signatories to whom the allotment of working hours has been transferred shall be entitled to utilise the allotment of hours of work per week so transferred.
" There were four conditions precedent subject to which the allotment of hours of work transferred by one member to another could be utilised by the latter and those of them were as under: "(1) No hours of work shall be transferred unless The transfer covers hours of work per week for a period of not less than six months; (ii) All agreements to transfer shall, as a condition precedent to any rights being obtained by transferees, be submitted with an explanation to the Committee and the Committee 's decision. whether the transfer shall be allowed shall be final and conclusive.
(iii) If the Committee sanctions the transfer, it shall be a condition precedent to its utilisation that a certificate be issued and the transfer registered.
" This, transaction of transfer of allotment of hours of work per week was commonly referred to as sale of looms hours by one member to another.
The consequence of such transfer was that the hours of work per week transferred by a member were liable to be deducted from the working hours per week allowed to such member under the working time agreement and the member in whose favour such transfer was made was entitled to utilise the number of working hours per week transferred to him in addition to the working hours per week allowed to him under the working time agreement.
It was under this clause that the assessee purchased loom hours from four different jute manufacturing concerns which were signatories to the working time agreement, for the aggregate sum of Rs. 2,03,255/ during the year 1st August 1958 to 31st July 1959.
In the course of assessment for the assessment year 1960 61 for which the relevant accounting year was the previous year 1st August 1958 to 31st July 1959, the assessee claimed to deduct this amount of Rs. 2,03,255/ as revenue expenditure on the ground that it was part of the cost of operating the looms which constituted the profit making apparatus of the assessee.
The claim was disallowed by the Income tax officer but on appeal, the 1378 Appellate Assistant Commissioner accepted the claim and allowed the deduction on the view that the assessee did not acquire any capital asset when it purchased the loom hours and the amount spent by it was incurred for running the business or working it with a view to producing day to day profits and it was part of operating cost or revenue cost of production.
The Revenue preferred an appeal to the Tribunal but the appeal was unsuccessful and the Tribunal taking the same view as the Appellate Assistant Commissioner, held that the expenditure incurred by the assessee was in the nature of revenue expenditure and hence deductible in computing the profits and gains of business of the assessee.
This view taken by the Tribunal was challenged in a reference made to the High Court at the instance of the Revenue.
The High Court too was inclined to take the same view as the Tribunal, but it felt compelled by the decision of this Court in Commissioner of Income Tax vs Maheshwari Devi Jute Mills Ltd.( ') to decide in favour of the Revenue and on that view it overturned the decision of the Tribunal and held that the amount paid by the assessee for purchase of the loom hours was in the nature of capital expenditure and was, therefore, not deductible under section 10(2) (xv) of the Act.
The assessee thereupon preferred the present appeal by special leave obtained from this Court.
Now an expenditure incurred by an assessee can qualify for deduction under section 10(2) (xv) only if it is incurred wholly and exclusively for the purpose of his business, but even if it fulfils this requirement, it is not enough; it must further be of revenue as distinguished from capital nature.
Here in the present case it was not contended on behalf of the Revenue that the sum of Rs. 2,03,255/ was not laid out wholly and exclusively for the purpose of the assessee 's business but the only argument was and this argument found favour with the High Court, that it represented capital expenditure and was hence not deductible under section 10(2)(xv).
The sole question which therefore arises for determination in the appeal is whether the sum of Rs. 2,03,255/ paid by the assessee represented capital expenditure or revenue expenditure.
We shall have to examine this question on principle but before we do so, we must refer to the decision of this Court in Maheshwari Devi Jute Mills case (supra) since that is the decision which weighed heavily with the High Court in fact, compelled it to negative the claim of the assessed and held the expenditure to be on capital account.
That was a converse case where the question was whether an amount received by the assessee for sale of loom hours was in the nature of capital receipt or revenue receipt.
The view taken by this Court was that it was in the.
1379 nature of capital receipt and hence not taxable.
It was contended on A behalf of the Revenue, relying on this decision, that just as the amount realised for sale of loom hours was held to be capital receipt, so also the amount paid for purchase of loom hours must be held to be of capital nature.
But this argument suffers from a double fallacy.
In the first place it is not a universally true proposition that what may be a capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer.
The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer.
It was felicitously pointed out by Macnaghten, J. in Race Course Betting Control Board vs Wild( ') that a "payment may be a revenue payment from the point of view of the payer and a capital payment from the point of view of the receiver and vice versa.
Therefore, the decision in Maheshwari Devi Jute Mills ' case (supra) cannot be regarded as an authority for the proposition that payment made by an assessee for purchase of loom hours would be capital expenditure.
Whether it is capital expenditure would have to be determined having regard to the nature of the trans action and other relevant factors.
But, more importantly, it may be pointed out that Maheshwari Devi Jute Mills ' case (supra) proceeded on the basis that loom hours were a capital asset and the case was decided on that basis.
It was common ground between the parties throughout the proceedings, right from the stage of the Income tax officer upto the High Court, that the right to work the looms for the allotted hours of work was an asset capable of being transferred and this Court therefore did not allow counsel on behalf of the Revenue to raise a contention that loom hours were in the nature of a privilege and were not an asset at all.
Since it was a commonly accepted basis that loom hours were an asset or the assessee, the only argument which could be advanced on behalf of the Revenue was that when the assessee transferred a part of its hours of work per week to another member, the transaction did not amount to sale of an asset belonging to the assessee, but it was merely the turning of an asset to account by permitting the transferee to use that asset and hence the amount received by the assessee was income from business.
The Revenue submitted that "where it is a part of the normal activity of the assessee 's business to earn profit by king use of its asset by either employing it in its own manufacturing concern or by letting it out to others, consideration received for allowing the transferee to use that asset is income received from busi 1380 ness and chargeable to income tax".
The principle invoked by the Revenue was that "receipt by the exploitation of a commercial asset is the profit of the business irrespective of the manner in which the asset is exploited by the owner in the business, for the owner is entitled to exploit it to his best advantage either by using it himself personally or by letting it out to somebody else.
" This principle, sup ported as it was by numerous decisions, was accepted by the court as a valid principle, but it was pointed out that it had no application in the case before the court, because though loom hours were an asset, they could not from their very nature be let out while retaining property in them and there could be no grant of temporary right to use them.
The court therefore concluded that this was really a case of sale of loom hours and not of exploitation of loom hours by permitting user while retaining ownership and, in the circumstances, the amount received by the assessee from sale of loom hours was liable to be regarded as capital receipt and not income.
It will thus be seen that the entire case proceeded on the commonly accepted basis that loom hours were an asset and the only issue debated was whether the transaction in question constituted sale of this asset or it represented merely exploitation of the asset by permitting its user by another while retaining ownership.
No question was raised before the court as to whether loom hours were an asset at all nor was any argument advanced as to what was the true nature of the transaction.
It is quite possible that if the question had been examined fully on principle, unhampered by any pre determined hypothesis, the court might have come to a different conclusion.
This decision cannot, therefore, be regarded as an authority compelling us to take the view that the amount paid for purchase of loom hours was capital and not.
revenue expenditure.
The question is res integra and we must proceed to examine it on first principle.
It is quite clear from the terms of the working time agreement that the allotment of loom hours to different mills constituted merely a contractual restriction on the right of every mill under the general law to work its looms to their full capacity.
If there had been no working time agreement, each mill would have been entitled to work its looms uninterruptedly for twenty four hours a day throughout the week, but that would have resulted in production of jute very much in excess of the demand in the world market, leading to unfair competition and precipitous fall in jute price and in the process, prejudicially affecting all the mills and therefore with a view to protecting the interest of the mills who were members of the Association, the working time agreement was entered into restricting the number of working hours per week for which each mill could work its looms.
1381 The allotment of working hours per week under the working time k agreement was clearly not a right conferred on a mill, signatory to the working time agreement.
It was rather a restriction voluntarily accepted by each mill with a view to adjusting the production to the demand in the world market and this restriction could not possibly be regarded as an asset of such mill.
This restriction necessarily had the effect of limiting the production of the mill and consequently also the profit which the mill could otherwise make by working full loom hours.
But a provision was made in clause 6(b) of the working time agreement that the whole or a part of the working hours per week could be transferred by one mill to another for a period of not less than six months and if such transfer was approved and registered by the Committee of the Association,, the transferee mill would be entitled to utilise the number of working hours per week transferred to it in addition to the working hours per week allowed to it under the working time agreement, while the transfer of mill would cease to be entitled to avail of the number of working hours per week so transferred and these would be liable to be deduced from the number of working hours per week otherwise allotted to it.
The purchase of loom hours by a mill had therefore the effect of relaxing the restriction on the operation of looms to the extent of the number of working hours per week transferred to it, so that the transferee mill could work its looms for longer hours than permitted under the working time agreement and increase its profitability.
The amount spent on purchase of loom hours thus represented consideration paid for being able to work the loom for a longer number of hours.
It is difficult to see how such payment could possibly be regarded as expenditure on capital account.
The decided cases have, from time to time, evolved various tests distinguishing between capital and revenue expenditure but no test is paramount or conclusive.
There is no all embracing formula which can provide a ready solution to the problem; no touchstone has been devised.
Every case has to be decided on its own facts keeping in mind the broad picture of the whole operation in respect of which the expenditure has been incurred.
But a few tests formulated by the court may be referred to as they might help to arrive at a correct decision of the controversy between the parties.
One celebrated test is that laid down by Lord Cave, L.C. in British Insulated and Helsby Cables Ltd. vs Atherton(1) where the learned Law Lord stated: "When an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, there is very 1382 good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital.
" This test, as the parenthetical clause shows, must yield where there are special circumstances leading to a contrary conclusion and, as pointed out by Lord Radcliffe in Commissioner of Taxes vs Nechanga Consolidated Copper Mines Ltd.,(1) it would be misleading to suppose that in all cases, securing a benefit for the business would be prima facie capital expenditure "so long as the benefit is not so transitory as to have no endurance at all.
" There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, none the less, be on revenue account and the test of enduring benefit may break down.
lt is not every advantage of enduring nature acquired by an assessee that brings the case within the principle laid down in this test.
What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test.
If the advantage consists merely in facilitating the assessee 's trading operations or enabling the management and conduct of the assesse 's business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future.
The test of enduring benefit is therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case.
But even if this test were applied in the present case, it does not yield a conclusion in favour of the Revenue.
Here, by purchase of loom hours no new asset has been created.
There is no addition to or expansion of the profit making apparatus of the assessee.
The income earning machine remains what it was prior to the purchase of loom hours.
The assessee is merely enabled to operate the profit making structure for a longer number of hours.
And this advantage is clearly not of an enduring nature.
It is limited in its duration to six months and, moreover, the additional working hours per week transferred to the assessee have to be utilised during the week.
and cannot be carried forward to the next week.
It is, therefore, not possible to say that any advantage of enduring benefit in the capital field was acquired by the assessee in purchasing loom hours and the test of enduring benefit cannot help the Revenue.
Another test which is often applied is the one based on distinction between fixed and circulating capital.
This test was applied by 1383 Lord Haldane in the leading case of John Smith & Son vs Moore(1) where the learned law Lord draw the distinction between fixed capital and circulating capital in words which have almost acquired the status of a definition.
He said: "Fixed capital (is) what the owner turns to profit by keeping it in his own possession; circulating capital (is) what he makes profit of by parting with it and letting it change masters." Now as long as the expenditure in question can be clearly referred to the acquisition of an asset which falls within one or the other of these two categories, such a test would be a critical one.
But this test also sometimes breaks down because there are many forms of expenditure which do not fall easily within these two categories and not infrequently, as pointed out by Lord Radcliffe in Commissioner of Taxes vs Nchanga Consolidated Copper Mines Ltd. (supra), the line of demarcation is difficult to draw and leads to subtle distinctions between profit that is made "out of" assets and profit that is made "upon" assets or "with" assets.
Moreover, there may be cases where expenditure, though referable to or in connection with fixed capital, is never the less allowable as revenue expenditure.
An illustrative example would be of expenditure incurred in preserving or maintaining capital assets.
This test is therefore clearly not one of universal application.
But even if we were to apply this test, it would not be possible to characterise the amount paid for purchase of loom hours as capital expenditure, because acquisition of additional loom hours does not add at all to the fixed capital of the assessee.
The permanent structure of which the income is to be the produce or fruit remains the same; it is not enlarged.
We are not sure whether loom hours can be regarded as part of circulating capital like labour, raw material, power etc., but it is clear beyond doubt that they are not part of fixed capital and hence even the application of this test does not compel the conclusion that the payment for purchase of loom hours was in the nature of capital expenditure.
The Revenue however contended that by purchase of loom hours the assessee acquired a right to produce more than what it otherwise would have been entitled to do and this right to produce additional quantity of goods constituted addition to or augmentation of its profit ( ' making structure.
The assessee acquired the right to produce a larger quantity of goods and to earn more income and this, according to the Revenue, amounted to acquisition of a source of profit or income which though intangible was never the less a source or 'spinner ' of income and the amount spent on purchase of this source of profit or income therefore represented expenditure of capital nature.
Now it is 1384 true that if disbursement is made for acquisition of a source of profit or income, it would ordinarily, in the absence of any other countervailing circumstances, be in the nature of capital expenditure.
But we fail to see how it can at all be said in the present case that the assessee acquired a source of profit or income when it purchased loom hours.
The source of profit or income was the profit making apparatus and this remained untouched and unaltered.
There was no enlargement of the permanent structure of which the income would be the produce or fruit.
What the assessee acquired was merely an advantage in the nature of relation of restriction on working hours imposed by the working time agreement, so that the assessee could operate its profit earning structure for a longer number of hours.
Undoubtedly, the profit earning structure of the assessee was enabled to produce more goods, but that was not because of any addition or augmentation in the profit making structure, but because the profit making structure could be operated for longer working hours.
The expenditure incurred for this purpose was primarily and essentially related to the operation or working of the looms which constituted the profit earning apparatus of the assessee.
It was an expenditure for operating or working the looms for longer working hours with a view to producing a larger quantity of goods and earning more income and was therefore in the nature of revenue expenditure.
We are conscious that in laws in life, and particularly in the field of taxation law, analogies are apt to be deceptive and misleading, but in the present content, the analogy of quota right may not be appropriate.
Take a case where acquisition of raw material is regulated by quota system and in order to obtain more raw material, the assessee purchases quota right of another.
Now it is obvious that by purchase of such quota right, the assessee would be able to acquire more raw material and that would increase the profitability of his profit making apparatus, but the amount paid for purchase of such quota right would indubitably be revenue expenditure, since it is incurred for acquiring raw material and is part of the operating cost.
Similarly, if payment has to be made for securing additional power every week, such payment would also be part of the cost of operating the profit making structure and hence in the nature of revenue expenditure, even though the effect of acquiring additional power would be to augment the productivity of the profit making structure.
On the same analogy payment made for purchase of loom hours which would enable the assessee to operate the profit making structure for a longer number of hours than those permitted under the working time agreement would also be part of the cost of performing the income earning options I and hence revenue in character.
When dealing with cases of this kind where the question is whether expenditure incurred by an assessee is capital or revenue expenditure, 1385 it is necessary to bear in mind what Dixon, J. said in Hallstrom 's Property Limited vs Federal Commissioner of Taxation(1): "What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view rather than upon the justice classification of the legal rights, if any, secured, employed or exhausted in the process.
" The question must be viewed in the larger context of business necessity or expediency.
If the outgoing expenditure.
is so related to the carrying on or the conduct of the business that it may be regarded as an integral part of the profit earning process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure.
See Bombay Steam Navigation Co. (1953) Pvt. Ltd. vs Commissioner of Income tax(2) The same test was formulated ' by Lord Clyde in Robert Addze & Son 's Collieries Ltd. vs Inland Revenue(3) in these words: "Is it part of the company 's working expenses, is it expenditure laid out as part of the process of profit earning ? or, on the other hand, is it a capital outlay, is it expenditure necessary for the acquisition of property or of rights of permanent character, the possession of which is a condition of carrying on its trade at all ?" It is clear from the above discussion that the payment made by the assessee for purchase of loom hours was expenditure laid out.
as part of the process of profit earning.
It was, to use Lord Soumnar 's words, an outlay of a business "in order to carry it on and to earn a profit out of this expense as an expense of carrying it on.
" It was part of the cost of operating the profit earning apparatus and was clearly in the nature of revenue expenditure.
It was pointed out by Lord Radcliffe in Commissioner of Taxes vs Nchanga Consolidated Copper Mines Ltd. (supra) that "in considering allocation of expenditure between the capital and income accounts, it is almost unavoidable to argue from analogy.
" There are always cases falling indisputably on one or the other side of the line and it is a familiar argument in tax courts that the case under review bears close analogy to a case falling on the right side of the line and must therefore be decided in the same manner.
If we apply this method, the case closes to the present one that we can find is Nchanga Consolidated Copper Mines case (supra).
The facts of this case were that three companies which were engaged in the business of copper mining formed a group and consequent on a steep fall in the price of copper in the world market, this group decided voluntarily to 1386 cut its production by 10 per cent which for the three companies together meant a cut of 27000 tons for the year in question.
It was agreed between the three companies that for the purpose of giving effect to this cut, company should cease production for one year and that the assesses company and company R should undertake between them the whole group programme for the year reduced by the overall cut of 27000 tons and should pay compensation to company for the abandonment of its production for the year.
Pursuant to this agreement the assessee paid to company 1,384,565 by way of its proportionate share of the compensation and the question arose whether this payment was in the nature of capital expenditure or revenue expenditure.
The Privy Council, held that the compensation paid by the assessee to company in consideration of the latter agreeing to cease production for one year was in the nature of revenue expenditure and was allowable as a deduction in computing the taxable income of the assessee.
Lord Radcliffe delivering the opinion of the Privy Council observed that the assessee 's arrangement with companies R and "out of which the expenditure arose, made it a cost incidental to the production and sale of the output of the mine" and as such its true analogy with an operating cost.
The payment compensation represented expenditure incurred by the assessee for enabling it to produce more goods despite the cut of 10 per cent and it was plainly part of the cost of performing the income earning operation.
This decision bears a very close analogy to the present case and if payment made by the assessee company to company for acquiring an advantage by way of entitlement to produce more goods notwithstanding the cut of 80 percent was regarded by the Privy Council as revenue expenditure, a fortiori; expenditure incurred by the assessee in the present case for purchase of loom hours so as to enable the assessee to work the profit making apparatus for a longer number of hours and produce more goods than what the assessee would otherwise be entitled to do, must be held to be of revenue character.
The decision in commissioner of Taxes vs Carron Company(1) also bears comparison with the present case.
There certain expenditure was incurred by the assessee company for the purpose of obtaining a supplementary charter altering its constitution, so that the management of the company could be placed on a sound commercial footing and restrictions on the borrowing powers of the assessee company could be removed.
The old charter contained certain anti quoted provisions and also restricted the borrowing powers of the assessee company and these features severely handicapped the assessee company in the development of its trading activities.
The House 1387 of Lords held that the expenditure incurred for obtaining the revised charter eliminating these features which operated as impediments to the profitable development of the assessee companies business was.
in the nature of revenue expenditure since it was incurred for facilitating the day to day trading operations of the assessee company and enabling the management and conduct of the assessee company 's business to be carried on more efficiently.
Lord Reid emphasised in the course of his speech that the expenditure was incurred by the assessee company "to remove antiquated restrictions which were preventing profits from being earned" and on that account held the expenditure to be of revenue character.
It must follow on an analogical reasoning that expenditure incurred by the assessee in the present case for the purpose of removing a restriction on the number of working hours for which it could operate the looms, with a view to increasing its profits, would also be in the nature of revenue expenditure.
We are therefore of the view that the payment of Rs. 2,03,255/ made by the assessee for purchase of loom hours represented revenue expenditure and was allowable as a deduction under section 10 (2) (xv) of the Act.
We accordingly allow the appeal and answer the question referred by the Tribunal in favour of the assesse and against the Revenue.
The Revenue will pay to the assessee costs throughout.
S.R. Appeal allowed.
| IN-Abs | Right from 1939, the demand of jute in the world market was rather lean and with a view to adjusting the production of the jute mills to the demand of the world market, various jute mills formed an Association styled as Indian Jute Mills Association and the appellant is one such member of the said Association.
As per the objects of the Association a quinquenniel working time agreement was entered into between the members of the Association restricting the number of working hours per week, for which the mills shall be entitled to work their looms.
The fourth working time Agreement was entered into between the members of the Association on 9th December, 1954 and it was to remain in force for a period of five years from 12th December 1954.
As per the first clause of the fourth working time Agreement no signatory shall work more than forty five hours of work per week subject to alteration in accordance with the provisions of clauses 7(1)(2) and (3) and further subject inter alia to the provision of clause (10) and under that clause, a joint and several agreement could be made providing that throughout the duration of the working time agreement, members with registered complements of loom not exceeding 220 shall be entitled to work upto seventy two hours per week.
Clause 6(a) enabled members to be registered as a "Group of Mills" if they happened to be under the control of the same managing agents or were combined by any arrangement or agreement and it was open to any member of the Group Mills so registered to utilise the allotment of hours of work per week of other members in the same group who were not fully utilising the hours of work allowable to them under the working time agreement, provided such transfer of hours of work was for a period not less than six months.
Clause 6(b) further (J prescribed three other conditions precedent subject to which the allotment of hours of work transferred by one member to another could be utilised by the latter and two of them were: (i) All agreements to transfer shall, as a condition precedent to any rights being obtained by transferee, be submitted with an explanation to the Committee and Committee 's decision .
whether the transfer shall be allowed shall be final and conclusive and (ii) If the Committee sanctions the transfer, it shall be a condition precedent to its utilisation that a certificate be issued and the transfer registered.
This transaction of transfer of allotment of hours of work per week was commonly referred to as sale of looms hours by one member to another.
The consequence of such 1371 transfer was that the hours of work per week transferred by a member were liable to be deducted from the working hours per week allowed to such member under the working time agreement and the member in whose favour such transfer was made entitled to utilise the number of working hours per week transferred to him in addition to the working hours per week allowed to him under the working time agreement.
The assessee, under this clause purchased loom hours from four different jute manufacturing concerns which were signatories to the working time agreement, for the aggregate sum of Rs. 2,03,255/ during the year 1st August 1958 to 31st July 1959.
In the course of the assessment year 1960 61 for which the relevant accounting year was the previous year 1st August 1958 to 31st July 1959, the assessee claimed this amount of Rs. 2,03,255/ as revenue expenditure on the ground that it was part of the cost of operating the looms which constituted the profit making apparatus of the assessee.
claim was disallowed by the Income Tax officer, but on appeal, the Appellate Assistant Commissioner accepted the claim and allowed the deduction on the view that the assessee did not acquire any capital asset when it purchased the loom hours and the amount spent by it was incurred for running the business of working it with a view to producing day to day profits and it was part of operating cost or revenue cost of production.
The Revenue preferred an appeal to the Tribunal, and, having lost before it, carried the matter before the High Court by a reference.
The High Court, following the decision of the Supreme Court in Commissioner of Income Tax vs Maheshwari Devi Jute Mills Ltd., held that the amount paid by the assessee for purchase of the loom hours was in the nature of capital expenditure and was therefore not deductible under section 10(2) (xv) of the Income Tax Act.
Hence the appeal by assessee by special leave.
Allowing the appeal, the Court ^ HELD: 1.
An expenditure incurred by an assessee can qualify for deduction under section 10(2)(xv) only if it is incurred wholly and exclusively for the purpose of his business, but even if it fulfills this requirement, it is nob enough; it must further be of revenue as distinguished from capital nature 2.
Maheshwari Devi Jute Mills ' case was a converse case where the question was whether an amount received by the assessee for sale of loom hours was m the nature of capital receipt or revenue receipt and the Supreme Court took the view that it was in the nature of capital receipt and hence not taxable.
The decision in Maheshwari Devi Jute Mills ' case cannot on this account be regarded as an authority for the proposition that payment made by an assessee for purchase of loom hours would be capital expenditure, because it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer.
The fact that a certain payment constitutes income or capital receipt in the hands of a recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer.
Whether it is capital expenditure or revenue expenditure would have to be determined having regard to the nature of the transaction and other relevant factors.
[1378 G H, 1379 A D] H Race Course Betting Control Board vs Wild, 22 Tax Cases 182.
quoted with approval.
1372 3.
Again, Maheshwari Devi Jute Mills ' Case proceeded on the accepted basis that loom hours were a capital asset and the only issue debated was whether the transaction in question constituted sale of this asset or it represented exploitation of the asset by permitting its user by another while retaining ownership.
No question was raised before the Court as to whether tho loom hours were an asset at all nor was any argument advanced as to what was the true nature of the transaction.
This question is res integra and therefore this decision cannot be regarded as an authority for the proposition that The amount paid for purchase of loom hours was capital and not revenue expenditure.
[1379 E, 1380 F] 4.
It is quite clear from the terms of the working time agreement that the allotment of loom hours to different mills constituted merely a contractual restriction on the right of every mill under the general law to work its looms to their full capacity.
If there had been no working time agreement, each mill would have been entitled to work its looms uninterruptedly for twenty four hours a day throughout the week, but that would have resulted in production of jute very much in excess of the demand in the world market, leading to unfair competition and precipitous fall in jute price and in the process, prejudicially affecting all the mills and therefore with a view to protecting the interest of the mills who were members of the Association, the working time agreement was entered into restricting the number of working hours per week for which each mill could work its looms.
The allotment of working hours per week under the working time agreement was clearly not a right conferred on a mill, signatory to the working time agreement.
It was rather a restriction voluntarily accepted by each still with a view to adjusting the production to the demand in the world market and this restriction could not possibly be regarded as an asset of such mill.
This restriction necessarily had the effect of limiting the production of the mill and consequentially also the profit which the mill could otherwise make by working full looms hours.
But a provision was made in clause 6(b) of the working time agreement that the whole or a part of the working hours per week could be transferred by one mill to another for a period of not less than six months and if such transfer was approved and registered by the Committee of the Association, the transferee mill would be entitled to utilise the number of working hours per week transferred to it in addition to the working hours per week allowed to it under the working time agreement, while the transferor mill could cease to be entitled to avail of the number of working hours per week so transferred and those would be liable to be deducted from the number of working hours per week otherwise allotted to it.
The purchase of loom hours by a mill had therefore the effect of relating the restriction on the operation of looms to the extent of the number of working hours per week transferred to it, so that the transferer mill could work its looms for longer hours than permitted under the working time agreement and increase is profitability.
The amount spent on purchase of looms hours thus represented consideration paid for being able to work the looms for a longer number of hours.
Such payment for the purchase of loom hours cannot be regarded as expenditure on capital account.
[1380 F H, 1381 A E] 6.
The decided cases have, from time to time, evolved various tests for distinguishing between capital and revenue expenditure but no test is amount or conclusive.
There is no all embracing formula which can provide a ready solution to the problem; no touchstone has been devised.
Every case has to be decided on its own facts keeping in mind the broad picture of the whole 1373 Operation in respect of which the expenditure has been incurred.
Two of these tests are: (a) The test of enduring benefit as laid down in British Insulated and .
Helsby Cables Ltd. vs Atherton, 10 Tax Cases 155.
Even this test must yield were there are special circumstances leading to a contrary decision There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, none the less, be on revenue account and the test one during benefit may break down.
It is not every advantage of enduring nature acquired by an assesses that brings the case within the principle laid down in this test.
What is material to consider is the nature of the advantage in a commercial sense.
that it is only where the advantage is in the capital field that the expenditure would be disavowable on an application of this test.
If the advantage consists merely in facilitating the assesses 's trading operations or enabling the management and conduct of the assesses 's business to be carried on more efficiently or more profitably while leaving the filed capital untouched.
the expenditure would be on revenue account, even though tho advantage may endure for an indefinite future.
The test of enduring benefit in therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances off a given case.
[1381 E G, 1382 A E] commissioner of Taxes vs Nchanga Consolidated Copper Mines Ltd., followed.
(b) The test based on distinction between fixed and circulating capital as applied in John Smith and Sons vs Moore, 12 Tax Cases, 266.
So long as tho expenditure in question can be clearly referred to the acquisition of an asset which falls within one or the other of these two categories such a test would be a critical one.
But this test also sometimes breaks down because there are many forms of expenditure which do not fall easily within these two categories and not infrequently, the line of demarcation is difficult to draw and leads to subtle distinctions between profit that is made "out of" assets and profit that is made "upon" assets or "with" assets.
Moreover, there may be cases where expenditure though referable to or in connection with fixed capital is nevertheless allowable as revenue expenditure e.g. expenditure incurred in preserving or maintaining capital assets.
This test is therefore clearly not one of universal application.
[1383 A D] Commissioner of Taxes vs Nchanga Consolidated Copper Mines LTD [1965]58 ITR 241; followed.
It is true that if disbursement is made for acquisition of a source of profit or income, it would ordinarily be in the nature of capital expenditure But it cannot be said in the present case that the assesses acquired a source d profit or income when it purchased loom hours.
The source of profit or income was the profit making apparatus and this remained untouched and unaltered, There was no enlargement of the permanent structure of which the income would be the produce or fruit.
What the assesses acquired wag merely an advantage in the nature of relation of restriction on working hours imposed by the working time agreement, so that the assesses could operate its profit earning structure for a longer number of hours.
Undoubtedly the profit earn 1374 ing structure of the assesses was enabled to produce more goods, but that was not because of any addition or augmentation in the profit making structure but because the profit making structure could be operated for longer working hours.
The expenditure incurred for this purpose was primarily and essentially related to the operation or working of the looms which constituted the profit earning apparatus of the assesses.
It was an expenditure for operating or working the looms for longer working hours with a view to producing a larger quantity of goods and earning more income and was therefore in the nature of revenue expenditure.
[1384 A D] 7.
When dealing with cases where the question is whether expenditure incurred by an assesses is capital or revenue expenditure, the question must be viewed in the larger context of business necessity or expediency.
If the outgoing expenditure is so related to the carrying on or the conduct of the business that it may be regarded as an internal part of the profit earning process and not for acquisition of an asset or a right of a permanent character.
the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure.
[1384 H, 1385 A C Nelletroms ' Property Ltd. vs Federal Commr.
Of Taxation, ; ; Robert Addis & Sons Collieries Ltd. vs Inland Revenue 8 Tax Case, 671 quoted with approval.
Bombay Steam Navigation Co. P. Ltd. vs Commissioner of Income Tax, ; followed.
In the instant case (a) the payment made by the assesses for the purchase of loom hours was expenditure laid out as part of the process of profit earning.
It was an outlay of a business in order to carry it on and to earn profit out of the expense as an expense of carrying it on.
It was part of the cost of operating the profit earning apparatus and was clearly in the nature of revenue expenditure; and [1385 D E (b) the payment of Rs. 2,03,255/ made by the assesses for purchase of loom hours represented Revenue expenditure and was allowable as a deduction under section 10(2) (xv) of the Income Tax Act.
[1387 C D] Commissioner of Income Tax v Nchanga Consolidated Copper Mines ltd. ; Commissioner of Taxes vs Curron Company 45 Tax Cases 18; followed.
|
Civil Appeal No. 2398 of 1978.
Appeal by Special Leave from the Judgment and Order dated 24 1 1978 of the Kerala High Court at Ernakulam in T.R.C. No. 2 of 1976.
M. M. Abdul Khader, V. J. Francis and M. A. Firoz for the Appellant.
section T. Desai, P. A. Francis and Mrs. section Gopalakrishnan for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment of the Kerala High Court holding that the turnover of pineapple fruit purchased for preparing pineapple slices for sale in sealed cans is not covered by s.5 A(1)(a) of the Kerala General Sales Tax Act, 1963.
The respondent, Messrs. Pio Food Packers ("the assessee"), carries on the business of manufacturing and selling canned fruit besides other products.
In its return for the year 1973 74 under the Kerala General Sales Tax Act, 1963 the assessee claimed that a turnover of Rs. 3,64,138 89 representing the purchase of pineapple fruit was not covered by section 5 A(1)(a) of the Act.
It was asserted that the pineapple was converted into pineapple slices, pineapple jam, pineapple squash and pineapple juice.
Section 5 A(1) (a) of the Act provides: "5 A. Levy of purchase tax (1) Every dealer who, in the course of his business, purchases from a registered dealer or from any other person any goods the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable under section 5, and either (a) consumes such goods in the manufacture of other goods for sale or otherwise; or . . . . . . . shall, whatever be the quantum of the turnover relating to such purchase for a year, pay tax 1274 on the taxable turnover relating to such purchase for the year at the rates mentioned in section 5." The assessee maintained that by the conversion of pineapple fruit into its products no new commodity was created and it was erroneous to say that there was a consumption of pineapple fruit "in the manufacture of" those goods.
The Sales Tax Officer did not accept the contention and completed the assessment on the finding that a manufacturing process was involved and that, therefore, the case fell within section 5 A(1)(a).
In revision before the Sales Tax Appellate Tribunal, the assessee conceded that pineapple jam and pine apple squash would be covered by section 5 A(1)(a), and in regard to pineapple juice the Tribunal found that section 5 1(a) was attracted.
The only question which remained was whether the preparation of pineapple slices fell within section 5 A(1)(a).
On that question two members of the Tribunal found in favour of the assessee, and the third member found in favour of the Revenue, The Revenue then applied in revision to the High Court and the High Court has, by its judgment dated 24th January, 1978, maintained the order of the Tribunal.
It appears that the pineapple purchased by the assessee is washed and then the inedible portion, the end crown, skin and inner core are removed, thereafter the fruit is sliced and the slices are filled in cans, sugar is added as a preservative, the cans are sealed under temperature and then put in boiling water for sterilisation.
Is the pineapple fruit consumed in the manufacture of pineapple slices ? Section 5 A(1)(a) of the Kerala General Sales Tax Act envisages the consumption of a commodity in the manufacture of another commodity.
The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be the manufacture of other goods.
There are several criteria for determining whether a commodity is consumed in the manufacture of another.
The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodity involved in its manufacture.
Commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass.
The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage.
With each process suffered, the original commodity experiences a change.
But it is only when the change, or a series of changes, take the commodity to the point where 1275 commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place.
Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another.
Although it has undergone a degree of processing, it must be regarded as still retaining its original identity.
A large number of cases has been placed before us by the parties, and in each of them the same principle has been applied: Does the processing of the original commodity bring into existence a commercially different and distinct article ? Some of the cases where it was held by this Court that a different commercial article had come into existence include Anwarkhan Mehboob Co. vs The State of Bombay and Others (where raw tobacco was manufactured into bidi patti), A Hajee Abdul Shukoor and Co. vs The State of Madras (raw hides and skins constituted a different commodity from dressed hides and skins with different physical properties), The State of Madras vs Swasthik Tobacco Factory (raw tobacco manufactured into chewing tobacco) and Ganesh Trading Co. Karnal vs State of Haryana and Another, (paddy dehusked into rice).
On the other side, cases where this Court has held that although the original commodity has undergone a degree of processing it has not lost its original identity include Tungabhadra Industries Ltd., Kurnool vs Commercial Tax Officer, Kurnool (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U.P., Lucknow vs Harbilas Rai and sons (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according to their size and colour were regarded as remaining the same commercial commodity, pigs bristles).
In the present case, there is no essential difference between pineapple fruit and the canned pineapple slices.
The dealer and the consumer regard both as pineapple.
The only difference is that the sliced pineapple is a presentation of fruit in a more convenient form and by reason of being canned it is capable of storage without 1276 spoiling.
The additional sweetness in the canned pineapple arises from the sugar added as a preservative.
On a total impression, it seems to us, the pineapple slices must be held to possess the same identity as the original pineapple fruit.
While on the point, we may refer to East Texas Motor Freight Lines vs Frozen Food Express, where the U.S. Supreme Court held that dressed and frozen chicken was not a commercially distinct article from the original chicken.
It was pointed out: "Killing, dressed and freezing a chicken is certainly a change in the commodity.
But it is no more drastic a change than the change which takes place in milk from pasturising, homogenizing, adding vitamin concentrates, standardising and bottling.
" It was also observed: ". . . there is hardly less difference between cotton in the field and cotton at the gin or in the bale or between cottonseed in the field and cottonseed at the gin, than between a chicken in the pen and one that is dressed.
The ginned and baled cotton and the cottonseed, as well as the dressed chicken, have gone through a processing stage But neither has been "manufactured" in the normal sense of the word.
" Referring to Antheuser Busch Brewing Association vs United States the Court said: "Manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation.
But something more is necessary. . . .There must be transformation; a new and different article must emerge, having a distinctive name, character or use." And further: "At some point processing and manufacturing will merge.
But where the commodity retains a continuing substantial identity through the processing stage we cannot say that it has been "manufactured".
The comment applies fully in the case before us.
Although a degree of processing is involved in preparing pineapple slices from 1277 the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it.
It is contended for the Revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity.
The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the can employed to contain it.
It is not as if the higher price is claimed because it is a different commercial commodity.
It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple slices he has in mind something very different from fresh pineapple fruit.
Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit is desired.
Learned counsel for the Revenue contends that even if no manufacturing process is involved, the case still falls within section 5 A(1) (a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise.
There is a fallacy in the submission.
The clause, truly read, speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale.
In the result, we hold that when pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans there is no consumption of the original pineapple fruit for the purpose of manufacture.
The case does not fall within section 5 A(1)(a) of the Kerala General Sales Tax Act.
The High Court is right in the view taken by it.
The appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
| IN-Abs | The respondent assessee, Pio Food Packers carries on the business of manufacturing and selling canned fruit besides other products.
The Pineapple purchased by the assessee is washed and then the inedible portion, the end crown, skin and inner core are removed, thereafter the fruit is sliced and the slices are filled in cans, sugar is added as a preservative, the cans are sealed under temperature and then put in boiling water for sterilisation.
In its return for the year 1973 74 under the Kerala General Sales Tax Act, 1963 the assessee claimed that a turnover of Rs. 3,84,138 89 representing the purchase of pineapple fruit was not covered by Section 5 A(1)(b) of the Act.
It was asserted that the pineapple was converted into pineapple slices, pineapple jam, pineapple squash and pineapple juice.
The assessee maintained that by the conversion of pineapple fruit into its products no new commodity was created and it was erroneous to say that there was a consumption of pineapple fruit "in the manufacture of" these goods.
The Sales Tax Officer did not accept the contention and completed the assessment on the finding that a manufacturing process was involved and that, therefore, the case fell within section 5 A (1) (a).
In revision before the Sales Tax Appellate Tribunal, the assessee conceded that pineapple jam and pineapple squash would be covered by section 5 A(1)(a), and in regard to pineapple juice the Tribunal found that section 5 1(a) was attracted.
The only question which remained was whether the preparation of pineapple slices fall within section 5 A(1)(a).
On that question two members of the Tribunal found in favour of the assessee, and the third member found in favour of the Revenue.
The Revenue then applied in revision to the High Court and the High Court, has by its judgment dated 24th January, 1978, maintained the order of the Tribunal.
Dismissing the appeal, by special leave, the court ^ HELD : 1.
When pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans, there is no consumption of the original pineapple fruit for the purpose of manufacture within the meaning of Section 5A(1)(a) of the Kerala General Sales Tax Act, 1963 [1277 E F] 2.
Section 5 A(1)(a) of the Kerala General Sales Tax Act envisages the consumption of a commodity in the manufacture of another commodity.
The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be the manufacture of other goods.
1272 There are several criteria for determining whether a commodity is consumed in the manufacture of another.
The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodity involved in its manufacture.
Commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass.
The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage.
With each process suffered, the original commodity experience a change.
But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place.
Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another.
Although it has undergone a degree of processing, it must be regarded as still retaining its original identity.
[1274 F H, 1275 A B] In the present case, there is no essential difference between pineapple fruit and the canned pineapple slices.
The dealer and the consumer regard both as pineapple.
The only difference is that the sliced pineapple is a presentation of fruit in a more convenient form and by reason of being canned it is capable of storage without spoiling.
The additional sweetness in the canned pineapple arises from the sugar added as a preservative.
The pineapple slices continue to possess the same identity as the original pineapple fruit.
[1275 G H, 1276 A] Tunghabhadra Industries Ltd., Kurnool vs Commercial Tax Officer, Kurnool, [1960] 10 S.T.C. 827 (SC); Commissioner of Sales Tax, U.P., Lucknow vs Harbilas Rai & Sons, [1968] 21 S.T.C. 17 (SC); followed.
East Texas Motor Freight Lines vs Frozen Food Express, ; ; Anheuser Busch Brewing Association vs United States, 52 L. ed.
336 338; quoted with approval.
Anwarkhan Mahboob Co. vs The State of Bombay and Ors., [1960] 11 STC 698, A Hajee Abdul Shukoor and Co. vs The State of Madras, [1964] 15 STC 719; The State of Madras vs Swasthik Tobacco Factory, [1966] 17 STC 316 and Ganesh Trading Co. Karnal vs State of Haryana and Anr., [1973] 32 STC 623; held inapplicable.
The fact that the pineapple slices have a higher price in the market than the original fruit does not imply that the slices constitute a different commercial commodity.
The higher price, is occasioned only because of the labour put into making the fruit more readily consumable and because of the can employed to contain it.
It is not as if the higher price is claimed because it a different commercial commodity.
[1277 A B] 4.
The fact that the pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple slices he has in mind something very different from fresh pineapple fruit does not give to the canned pineapple slices a separate identity either.
The distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit is desired.
[1277 B C] 1273 5.
Clause (1) (a) of Section 5 A of the Kerala General Sales Tax Act, speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale.[1277 C D]
|
Civil Appeal No. 531 of 1979.
Appeal by Certificate from the Judgment and Order dated the 23 10 1969 of the Bombay High Court in S.C.A. No. 1596 of 1965.
D. V. Patel, N. N. Keshwani and R. N. Keshwani for the Appellant.
J. Sorabjee, R. Daruwala, P. G. Gokhale and J. R. Gagarat for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is by the defendant tenant by certificate granted by the High Court of Judicature at Bombay against its judgment dated 21 1 69 is Special Civil Application No. 1596 of 1965 granting a decree directing that the defendant shall vacate and deliver peaceful possession not only of the land demised to him under the lease in the suit but also of the three buildings which have been constructed on the demised land.
By a lease deed dated 14th December, 1948 the plaintiff gave to the defendant on lease two plots Nos. 12 and 13 situated at Sitaladevi 1018 Temple Road, Mahim for a period of 15 years commencing from 1st December, 1948 at the yearly rent of Rs. 10,200/ payable in equal quarterly instalments of Rs. 2,550/ in advance.
The lease deed provided that the defendant was at liberty to erect building and structures on the two plots of land.
The defendant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also on the buildings to be created by the defendant.
On the expiration of the term of 15 years or sooner termination of the lease the defendant agreed to deliver back the possession of the two plots to the plaintiff ' free of all buildings, erections and structures and levelled and put in good order and condition to the satisfaction of the plaintiff '.
Clause IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach of conditions of the lease.
The forfeiture clause also provided that upon forfeiture the plaintiff would be entitled to re enter upon not only the two plots of land but also the structures standing thereon.
The defendant defaulted not only in payment of rent but also in payment of taxes due in respect of lands and buildings which he erected.
The plaintiff filed a suit in 1951 for ejectment.
The defendant filed an application for the fixation of standard rent and the standard rent was fixed at Rs. 435/ per month from September 1, 1950.
A compromise was entered into between the parties in the suit on 5th March, 1954 by which the parties agreed on a rent of Rs. 435/ per month from September, 1950 to February, 1954.
An appeal against the fixation of standard rent of Rs. 435/ per mensem was disposed of on 28th June, 1955 whereby standard rent was fixed at Rs. 620/ per month from 1st September, 1950.
The defendant again defaulted in payment of rent and taxes.
The arrears of rent amounted to Rs. 11,472.30 and taxes to the extent of Rs. 1,12,053.60 for the period ending 30th September, 1960.
The plaintiff by a notice determined and forfeited the lease and called upon the defendant to deliver possession of the lands alongwith structures thereupon.
The notice also specified that the notice was not only a notice of forfeiture but also notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act).
On 1st December, 1961 as the defendant failed to pay the arrears of rent and the taxes, the plaintiff filed the present suit and prayed for a decree for ejectment against the defendant in respect of two plots of land and also the buildings and structures standing thereon, and claimed arrears of rent of Rs. 11,472.30 and mesne profits at the rate of Rs. 620/ 1019 per month.
The defendant filed written statement and denied the allegations made in the plaint.
The defendant in order to get the benefit of the provisions of Section 12(3) (b) of the Bombay Rents Act applied for time for making deposit of arrears of rent.
The application was taken on the 20th June, 1962 and further time was granted to enable the defendant to make the deposits.
Time was extended on several occasions and finally on 6th August, 1962, the defendant informed the court that he was not in a position to make any deposit at all.
After the issues were framed and the suit was taken up for trial, the defendant once again applied for relief under section 12(3)(b) of the Act and prayed that he may be allowed to deposit the arrears of rent and cost.
The deposit was accepted by the Court after making an endorsement, "accept without prejudice".
Subsequently, on 11th November, 1964, the trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the plaintiff.
A decree was granted regarding arrears of rent and for mesne profits.
Both the plaintiff and the defendant preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeal on 4th April, 1965.
The appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on Plot No. 12 by the defendant.
It held that clause IV of the lease which permitted forfeiture was in the nature of penalty and the defendant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the plaintiff.
It also found that the defendant was entitled to be relieved from the penalty of forfeiture of the lease under Ss. 114 and 114A of the Transfer of Property Act.
It rejected the plea of the defendant that he was always ready and willing to pay all arrears of rents and found that because of repeated defaults the defendant was not entitled for relief from ejectment under section 12(3) (b) of the Bombay Rent Act.
The plaintiff filed a revision petition against the order of the appellate Court declining to direct possession of the two buildings and the defendant/tenant filed an appeal against the order of the appellate Court directing ejectment of the defendant from the two plots of lands mentioned in the plaint.
The High Court disposed of both the revisions by the plaintiff and the appeal by the defendant by a common judgment whereby it allowed the revisions filed by the plaintiff and dismissed the appeal of the defendant and decreed the suit of the plaintiff directing the defendant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the defendant on the demised 1020 lands.
It also confirmed the decree regarding arrears of rents and mesne profits.
On behalf of the defendant it was submitted that the Court 's jurisdiction is limited only to adjudicate on leased premises under the Bombay Rent Act and therefore it had no jurisdiction to try the suit regarding possession of the structures put upon the leased lands.
It was pleaded that a relief regarding the superstructures will not be one under the provisions of the Bombay Rent Act.
It was contended that as the suit is for a composite relief namely for the possession of the leased land and for the superstructures it is beyond the jurisdiction of the court and the suit as a whole should have been dismissed.
It was submitted that in any event as clause IV in the lease deed is in the nature of penalty providing for the forfeiture of the structure which did not form part of the lease, the decree for possession of the structures is not maintainable.
In any event it was submitted that there could be no forfeiture of the structures on the ground that the municipal taxes were not paid and that the term as to payment of arrears of taxes cannot be considered as a clause in the lease deed and the defendant should be relieved against the penal clause.
Lastly, it was submitted that the Courts below were wrong in not granting relief under section 12(3) (b) of the Bombay Rent Act.
Before considering the several contentions raised by the learned counsel for the appellant it will be useful to refer to the relevant clauses of the lease deed and the relief prayed for in the plaint.
The lease deed dated 14th December, 1948 executed by the plaintiff in favour of the defendant was a lease of two plots of land, plot Nos. 12 and 13 situated at Sitladevi Temple Road, Mahim for a period of 15 years at an yearly rent of Rs. 10,200/ payable in equal quarterly instalments of Rs. 2,550/ in advance.
Subsequently standard rent was fixed by the trial Court at Rs. 435/ which was raised by the appellate court to Rs. 620/ per mensem.
The lease permitted the defendant to erect buildings and structures in the two plots of land.
The buildings were erected in only plot No. 12 and not in plot No. 13 which remains unbuilt and vacant.
The defendant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also to the buildings to be erected by the defendant.
The defendant also undertook to deliver possession of the two plots to the plaintiff "free of all buildings, erections and structures" on the expiration of the lease.
Clause IV empowered the lessor to terminate the lease and provided that the lessor will be at liberty to re enter not only upon the two plots of the lands but also on the structures standing thereon.
In the plaint it was stated that as the defendant had failed to pay rents and taxes and 1021 committed breach of conditions the plaintiff forfeited the lease and called upon the defendant to pay arrears of rent and taxes.
The suit was based not only on the forfeiture of the lease but also for possession of the leased plots under section 12 of the Bombay Rents Act.
In paragraph 9 of the plaint it is alleged "the plaintiff say that in the event of the defendant contending that he has become a statutory tenant of the said land, after the tenancy had been duly and validly terminated, the plaintiff would submit that the defendant had failed and neglected to pay the arrears of standard rent amounting to Rs. 11,472.30 upto 31st August, 1961 and does not observe and perform condition 11(b) of his lease, and so he is not entitled to the protection of the Bombay Rent Control Act.
" In paragraphs 10 and 11 of the Plaint, it is alleged that the provisions of the Bombay Rents Act 47 of 1947 apply to the said land and the Court has jurisdiction to entertain and try the suit.
The reliefs asked for by the plaintiff in paragraph 13(a) is that the defendant may be directed to hand over peaceful possession of the lands to the plaintiff together with the buildings and structures standing thereon.
Thus it would be seen that the plaint is based on the terms of the lease deed after forfeiting the lease and for the possession of the leased lands according to the terms of the Bombay Rent Act.
The main defence which was raised by the tenant in the Courts below as well as before us is that the suit is not triable under section 28 of the Bombay Rents Act and in any event relief regarding possession of the structures would be beyond the scope of the relief contemplated in the Bombay Rent Act.
Section 28 of the Bombay Rent Act runs as follows: "28 (1).
Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for the provision, be within its jurisdiction, in Greater Bombay, the Court of Small Causes Bombay.
(a) X X X X X X X X X (b) X X X X X X X X X shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions 1022 and subject to the provisions of sub section (2), no other court shall have jurisdiction to entertain any such claim or question.
" The Section confers jurisdiction on the Court of Small Causes Bombay to entertain and try any suit or proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of this part apply.
The jurisdiction thus conferred enables the Court to try any suit between the landlord and the tenant relating to recovery of possession of the premises.
It is admitted that the premises is the two plots of land only and not the superstructure.
The plea of the plaintiff is that the relief for recovery of possession of the plot which is the subject matter of the lease, would also include relief relating to the superstructure as being related to relief of recovery of possession of the leased premises namely the plots and land.
The submission on behalf of the plaintiff is that as the jurisdiction of Civil Courts have been specifically excluded, and the matters relating to possession of the leased premises, it would imply that not only relief of the possession of the leased lands but also matters relating to it would be beyond the jurisdiction of other courts and therefore the plaintiff has no other option than to file the suit for relief as to the structure being only ancillary and incidental to the relief of possession of the leased lands.
Before we proceed to consider this plea, we might note that Mr. Soli J. Sorabjee, learned counsel for the plaintiff submitted that though it might be open to him to contend that the reliefs relating to the structures based on the terms of the contract would also be decisive on an application made under the act as being related to the recovery of the possession of the leased premises, he would content himself with the plea that the relief as to structures is so closely and inextricably related to possession of the land that no effective relief of possession of the leased lands could be given without giving relief in respect of structures.
Relief as to structures also should inevitably follow.
If this submission is accepted it would be unnecessary for us to consider the other limb of the arguments on behalf of the appellants that the relief claimed as a result of the forfeiture is not enforceable by a Court administering Bombay Rent Act or that the plaintiff cannot enforce terms of forfeiture which did not relate to leased plots or that the defendant would be entitled to relief against forfeiture under Ss.114 and 114A of the Transfer of Property Act.
All the Courts below have found that the defendant is not entitled to any relief under section 12(3)(b) of the Act and that so far as the leased plots are concerned, the plaintiff is entitled to possession under the Bombay Rent Act.
After filing of the suit it is seen that the 1023 defendant asked for time for payment of arrears of rents and the matter came up before the Court on the 28th June, 5th July and 6th August, 1962 for payment of arrears.
On the last date the appellant 's advocate informed the Court that the appellant was not in a position to pay the arrears.
It is only two years later on 18th September, 1964 the defendant obtained Court 's permission to deposit balance of arrears of Rs. 12,800/ and deposited the amount under protest by the plaintiff.
The Trial Court after considering all the facts found that there was intention of default and neglect in payment of rent.
The conduct of the defendant was wilfully not ready and willing to pay the rent.
It again found that the payment of arrears was not made diligently and the defendant had flouted the orders of the Court to deposit the arrears of rent and the discretion cannot be exercised in his favour when he persisted in not paying the taxes for about 12 or 13 years and was constantly in arrears of rent for about 14 months at the time of the notice.
The appellate Court also came to the same conclusion holding that it is not a case where discretion of the Court under S.12 (3) (b) should be exercised in favour of the tenant.
The High Court also confirmed the findings of the Court below that the defendant was not entitled to relief under Section 12(3)(b) of the Act.
On the facts we are also in agreement with the findings of the three courts below that the persistent default of the defendant on various occasions and his clear statement that he was not in a position to pay the arrears, would exclude any relief under section 12(3) (b).
In a recent decision of this Court reported in Ganpat Ladha vs Sashikant Vishnu Shinde, it has been held that when the tenant does not fulfil the conditions as required under section 12(3)(b), he could not claim protection under section 12(3)(b).
This Court observed that it is difficult to see how judicial discretion exercisable in favour of the tenant can be found under section 12(3)(b) even where conditions laid down by it were not satisfied.
This Court overruled the decision of the case of Bombay High Court in Kalidas vs Bhavan Bhagwandas.
The conditions specified in section 12(3) (b) will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the Section.
On the facts therefore we find that the plaintiff is entitled to a decree for possession of the two plots under the provisions of the Bombay Rent Act.
As plot No. 13 has not been built upon and is vacant there could be no difficulty in confirming the decree for possession in favour of the plaintiff regarding plot No. 13.
1024 In Importers and Manufacturers Ltd. vs Pheroze Framroze Taraporewala and Ors, this Court held that the claim for compensation was merely an incidental claim for possession under the Act.
"Section 28 had conferred jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and tenant for recovery of rent or possession but also to deal with any claim or question arising out of this Act or any of its provisions and section 28 was thus wide enough to cover the question raised as between the plaintiff and the sub lessee".
It will be seen that the plea that a suit against a sub lessee is not within the jurisdiction of the Small Causes Court, was negatived by this Court and it was held that section was wide enough to cover the questions raised between the plaintiff and the sub lessee.
In Babulal Bhuramal and Anr.
vs Nandram Shivram and Ors.
related to sub lessee of the premises.
The suit was filed for ejectment of the tenant and the sub tenant in the Court of Small Causes.
The tenant and the sub tenants later filed a suit before the Bombay City Civil Court for declaration that the lessee was a tenant and was protected from eviction by the provisions of the Bombay Rents Act and that as B and C were lawful sub tenants, were also entitled to possession.
This Court agreed with the view taken by the High Court that section 28 of the Act barred the City Civil Court from entertaining the suit filed by the lessees and the sub lessees as section 28 conferred the right on the Small causes to entertain a suit between a landlord and a tenant in respect of a claim which arose out of the Act or any of its provisions.
Thus it prohibits a suit from being entertained by the City Civil Court at the instance of the tenant.
In Raizada Topandas and Anr.
vs M/s. Gorakhram Gokalchand it was held that if a suit is framed by a landlord or a tenant and relief asked for is in the nature of a claim which arises out of Act or any of the provisions then only and not otherwise will be covered by section 28 and as there were no such claim the City Civil Court has jurisdiction to entertain the suit.
The plaint in the case proceeded on the footing that during the period of agreement the appellants were mere licensees and after the expiry of the agreement they were trespassers.
As the plaint in terms negatived the relationship of the landlord and tenant, it was held that the Rent Court had no jurisdiction.
This decision cannot be of any help to the appellant.
1025 In Sushila Kashinath Dhonde and Ors.
vs Harilal Govindji Bhogani and Ors.
, this Court held that it is not necessary that there should be relationship of landlord and tenant in respect of all the matters covered by section 28(1) of the Act so as to give jurisdiction to the Court of Small Causes.
It further held that in respect of other matters dealt with sub section, it is not necessary that the relationship of landlord and tenant should exist between the parties before the Court.
The Court repelled the contention that a charge created by the deed executed between the parties did not give rise to any claims or questions arising out of the Bombay Rents Act or its provisions and held that nature of reliefs to be granted to the plaintiff are all claims or questions arising out of the Act and can be dealt with only by the special court constituted under section 28 of the Act.
No doubt, the deed of charge furnished a cause of action, but its legality, validity and binding nature and other incidental matters connected therewith are all questions arising out of the Act and the plea on behalf of the appellants that the rights of the plaintiff did not flow from the Act or any of its provisions but from the contract, could not be accepted.
The decisions referred to above will show that the plaintiff/ landlord of the land is entitled to claim the relief for possession of his land and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures.
Apart from the relief under the lease deed, the plaintiff is entitled to succeed as he has established that there was default of payment under the provisions of the Bombay Rents Act.
The jurisdiction of the Small Causes Court to grant an effective decree for possession of the land cannot be denied.
Equally untenable is the contention of the respondent that as the plaintiff has sought two reliefs one under the Bombay Rent Act and another under the Contract, the entire plaint must be rejected.
As we have already observed so far as the relief of possession of the premises, i.e the land is concerned, it is exclusively within the jurisdiction of the Small Causes Court.
In asking for the relief for possession of the land, the plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structures.
The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court.
In this view it is not necessary for us to go into the question as to whether the terms in the contract regarding the forfeiture can be enforced by the Small Causes Court.
It is sufficient for the purpose of this Suit to hold that the plaintiff is entitled to seek for 1026 possession of the land which is the premises in the suit, and in getting possession of the land he is entitled to ask for possession of the land without any superstructures.
In this connection reference may be made to the nature of the relief which the plaintiff is entitled to.
In Ramchandra Raghunath Shirgaonkar vs Vishnu Balaji Hindalakar, it was held that the ordinary rule of law is that the tenant must give up vacant possession of the land demised at the end of the term and that if he builds on the land of the tenancy he builds at his own risk.
At the end of the term he can take away his building but if he leaves it there, it becomes the landlord 's property.
The Court further held that the tenant who had been in possession of land for a large number of years and built a costly and substantial house on the land of the tenancy with the knowledge of the landlord, is entitled to some compensation In K. Arumugham Naicker and Anr.
vs Tiruvalluva Nainar Temple that after the determination of the lease, lessees were required to deliver over possession of the demised premises to the lessor and the lessees were entitled to remove the structures which they might have erected during the continuance of the tenancy.
The lessees, however, failed to remove the structures on the date of the determination of the tenancy and on the next date the premises were occupied by other lessees, it was held the lessees could remove the structures on and not after determination of the tenancy and having failed to remove the same on the determination of the tenancy they lost not only their right to remove the structures after the determination of the tenancy but also all right, title and interest in those structures In K. Arumugham Naicker and Anr.
vs Tiruvalluva Naickar Temple by its Trustee, it was held that where a court directs by a decree or order vacant possession of land, that decree could be made effective by directing its own officers to remove the super structures in the property and deliver vacant possession of the properties to the decree holder.
It is unnecessary to have any specific power in that behalf.
The power to remove the superstructures is an incidental necessary and ancillary power to the power to deliver possession of the property.
We are satisfied that the Small Causes Court had jurisdiction to entertain the suit of the plaintiff not only for possession of the land which is the premises under the Act but also for other reliefs to make the decree for possession effective.
In this connection the plaintiff is entitled to ask for relief regarding the superstructures.
This incidental or ancillary relief would not take out the suit beyond 1027 the jurisdiction of the Small Causes Court.
The plea that the composite relief had been asked for and that the entire plaint ought to be rejected is also unsustainable.
In the result, we agree with the contentions of the plaintiff that in asking for relief as to possession of the land, he is entitled to ask for the demolition of the structures and for grant of vacant possession of the plots.
So far as the plot No. 13 is concerned, there is no difficulty.
The plot is not built upon and is vacant and therefore we have no hesitation in confirming the decree for possession so far as the plot No. 13 is concerned.
Plot No. 12 has been built upon.
There are about three storeys consisting of about 72 flats, shops with carpet area of 13,000 square ft. and the cost of building with superstructures in 1949 was about Rs. 6,00,000/ .
We may in this connection note that from the date of the decree passed by the High Court on 23rd October 1969, the defendant has not paid arrears of rents or the taxes due on the buildings.
He is in law bound to pay the arrears of rent and the municipal charges which he has undertaken.
On a consideration of the facts of the case, we feel that there are no grounds for interfering with the decree passed by the High Court for possession not only of the vacant plot but also of the superstructure and mesne profits and arrears of rent.
The law provides for the tenant to remove the superstructure on the termination of the tenancy.
If it is not thus removed the tenant loses all his rights to the superstructure and the landlord becomes entitled to it.
But in a case where there is a substantial building, it is only reasonable that the court should explore the possibility of payment of some compensation to the tenant who had put up this structure.
But in this connection we are reminded that for several years neither the arrears of rent nor the taxes amounting to several lacs of rupees had been paid by the tenant.
Not only the tenant but several persons who have put up flats at their own costs may press their claim for compensation and it will be difficult to determine as to who are entitled to compensation and the proportion of the compensation to which they will be entitled to.
We enquired of the parties at the conclusion of the arguments if it was possible to come to some arrangement regarding the superstructure but to our regret the parties informed us that they could not arrive at any settlement.
In the circumstances, we have no alternative except to confirm the judgment and decree passed by the High Court.
We, therefore, dismiss the appeal, but in the special circumstances of this case we make no order as to costs in this Court.
S.R. Appeal dismissed.
| IN-Abs | By a lease dated 14th December 1948, the respondent plaintiff gave to the appellant defendant on lease two plots Nos. 12 and 13 situated at Sitaladevi Temple Road, Mahim for a period of 15 years commencing from 1st December 1948 at the yearly rent of Rs. 10,200/ payable in equal quarterly instalments of Rs. 2,550/ in advance.
The lease deed provided that the appellant was at liberty to erect building and structures on the two plots of land.
The appellant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also on the buildings to be erected by the defendant.
On the expiration of the term of the lease, the appellant agreed to deliver back the possession of two plots to the respondent `free of all buildings, erections and structures and levelled and put in good order and condition to the satisfaction of the respondent '.
Clause IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach of conditions of the lease.
The forfeiture clause also provided that upon forfeiture the respondent would be entitled to re enter upon not only the two plots of land but also the structure standing thereon.
The appellant constructed on plot No. 12 a three storied building consisting of about 72 flats, shops with carpet area of 13,000 square feet and the cost of the building with superstructures in 1949 was about Rs. 6,00,000/ .
Since the appellant defaulted not only in payment of rent but also in payment of dues in respect of lands and buildings which he erected, the respondent filed a suit in 1951 for ejectment.
The appellant filed an application for the fixation of standard rent and the standard rent was fixed at Rs. 435/ per month from September 1, 1950.
A compromise was entered into between the parties in the suit on 5th March, 1954, by which they agreed on a rent of Rs. 435/ per month from September 1950 to February 1954.
An appeal against the fixation of standard rent of Rs. 435/ per month was disposed of on 28th June, 1955 whereby standard rent was refixed at Rs. 620/ p.m. from 1st September 1950.
The appellant again defaulted in payment of rent and taxes.
The arrears of rent amounted to Rs. 11,472.30 and taxes to the extent of Rs. 1,12,053.60 for the period ending 30th September 1960.
The respondent by a notice determined and forfeited the lease and called upon the appellant to deliver possession of the lands alongwith structures thereupon.
The notice also specified that the notice was not only a notice of forfeiture, but also notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
On 1st 1016 December 1961, as the appellant failed to pay the arrears of rent and the taxes, the respondent filed the suit for ejectment and prayed for a decree for ejectment against the appellant in respect of two plots of land Nos. 12 and 13 and also the buildings and structures standing thereon, and claimed arrears of rent of Rs. 11,472.50 and mesne profits at the rate of Rs.620/ p.m. The appellant in order to get the benefit of section 12(3)(b) of the Rent Control Act, 1947, applied for time for making deposit of arrears of rent.
The appellant could not make the payment within the extended time allowed, but after the issues were framed and the suit was taken up for trial, he deposited the arrears of rent and cost in the Court after the Court made an endorsement "accept without prejudice".
Subsequently, on 11th November, 1964 the Trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the respondent.
A decree was granted regarding arrears of rent and for mesno profits.
Both the appellant and the respondent preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeals on 4th April 1965.
The Appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on plot No. 12 by the appellant.
It held that clause IV of the lease which permitted forfeiture was in the nature of penalty and the appellant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the respondent.
It also found that the appellant was entitled to be relieved from the penalty of forfeiture of the lease under section 114 and 114A of the Transfer of Property Act.
It rejected the plea of the appellant that he was always ready and willing to pay arrears of rents and found that because of repeated defaults the appellant was not entitled for relief from ejectment under section 12(3)(b) of the Bombay Rent Act.
The respondent filed a revision petition against the order of the appellate Court declining to direct possession of the two buildings and the appellant tenant filed an appeal against the order of appellate Court directing his ejectment from the two plots of lands Nos. 12 and 13.
The High Court disposed of both the revision petition and the cross appeal by a common judgment whereby it allowed the revision petition of the respondent/landlord and dismissed the appeal of the appellant/tenant and decreed the suit of the respondent directing the appellant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the appellant on the demised lands.
It also confirmed the decree regarding arrears of rents and mesne profits.
Hence the appeal by certificate.
Dismissing the appeal, the Court.
^ HELD: 1.
Section 28 of the Bombay Rent Act, 1947 confers jurisdiction on the Court of Small Cause.
Bombay to entertain try any suit for proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of that part applied.
The Jurisdiction thus conferred enables the Court to try any Suit between the landlord and the tenant relating to recovery of possession of the premises.
[1022 A B] Importers and Manufacturers Ltd. vs Pheroze Framroze Taraporewala and Ors. ; Babulal Bhura Mal and Anr.
vs Nandram Shivram and Ors., ; ; followed.
1017 Raizada Tapen Das and Anr.
vs M/s Gorakhram Gokalchand ; ; Sushila Kashinath Dhonde and Ors.
vs Harilal Govinji Bhogani and Ors., ; explained and distinguished.
The conditions specified in section 12(3)(b) of the Bombay Rent Act, 1947 will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the section.
In the instant case, the persistent default of the appellant tenant on various occasions and his clear statement that he was not in a position to pay the arrears would exclude any relief under section 12(3) (b) of the Act.
The respondent plaintiff would be entitled to a decree for possession of the plots under the provisions of the Bombay Rent Act and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures.
[1023 D G, 1025 D E] Ganpat Lodha vs Sachikant Vishnu Shivale. ; ; applied. 3.
To contend that as the respondent plaintiff has sought two reliefs one under the Bombay Rent Act and another under the contract, the entire plaint must be rejected is wrong.
In asking for the relief for possession of the land.
the respondent plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structure, that is he is entitled to ask for the demolition of the superstructure.
The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court.
[1025 E. F G] Ramachandra Raghunath Shirgaonkar vs Vishnu Balaji Hindalekar.
; Khimjee Thakorsee vs Pioneer Fibre Co. Ltd., AIR 1941 Bom.
337 and K Arumugham Naicker and Anr.
vs Tiruvalluva Nainar Temple by its Trustee.
AIR 1954 Mad. 985; approved.
|
Civil Appeal No. 1172 of 1979.
Appeal by Special Leave from the Judgment and order dated 1 2 1979 of the Madras High Court in O.S.A. No. 75/77.
878 G. Swaminathan, A.C. Muthana, M. Subramaniam, K. Rajendra Chowdhary and N.N. Sivam for the Appellant.
P. Chidambaram, Shakeel Ahmed, M.N. Krishnamani and M.A. Malik for Respondent No. 1.
S.V. Gupte and V. N. Ganpule for Respondent 2, 4 6.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question involved in this case is whether a suit for ejectment filed in respect of any non residential building or part thereof pending before any court on the date on which the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act No. XVIII of 1960) (hereinafter referred to as 'the principal Act ') was amended by the Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1964 (Act No. XI of 1964) (hereinafter referred to as 'the Amending Act ') could have been proceeded with after that date.
It arises in the following circumstances: Haji Mohamed Hussain Sait, the father of the plaintiff, Haji Abdulla Sait was the owner of a building situated in the city of Madras.
He leased it out in favour of the defendant, K. Seetharama Rao under a lease deed dated July 8, 1940 for the purpose of Running a restaurant known as 'Modern Cafe ' in it for a period of three years with effect from July 15, 1940 on a monthly rent of Rs. 950/ .
The agreed h period of lease expired in July, 1943 but the defendant continued to be in possession of the building as a tenant holding over.
On the coming into force of the Madras Non residential Buildings Rent Control order in 1946, the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that order in the year 1946 at Rs. 1,680/ per month.
The aforesaid order was replaced by the Madras Buildings (Lease and Rent Control) Act.
1949 which was also applicable to the said building.
On the death of the landlord Haji Mohamed Hussain Sait in 1955, under a partition amongst his heirs the plaintiff became the owner of the building.
The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing of the principal Act by virtue of section 35 thereof which repealed the Act of 1949 and section 30(iii) thereof which provided that nothing contained in the principal Act was applicable to any non residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the Corporation of Madras exceeded Rs. 400/ per mensem.
The defendant, however, continued to be in possession of the building by paying the rent every month.
879 The plaintiff issued a notice to the defendant terminating the tenancy with effect from the expiry of February 29, 1964 and as the building was not governed by the principal Act at that point of time, he instituted a suit in Civil Suit No. 730 of 1964 on the file of the City Civil Court, Madras on March 2, 1964 for eviction and for damages at the rate of Rs. 6000/ per month.
The defendant filed his written statement on May 2, 1964 before the City ' Civil Court.
On June 10, 1964, the Amending Act came into force.
The relevant part of it is reproduced below: "2.
Amendment of section 30, Madras Act XVlII of 1960.
In section 30 of the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the principal Act) (i) in clause (ii) the word "or" occurring at the end shall be omitted; (ii) clause (iii) shall be omitted; (iii) in the Explanation, for the words, brackets and figures "clauses (ii) and (iii) ", the word, brackets and figures "clause (ii)" shall be substituted.
Certain pending proceedings to abate.
Every proceeding in respect of any non residential building or part thereof pending before any court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act, shall abate in so far as the proceeding relates to such building or part.
All rights and privileges which may have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause (iii) of section 30 of the principal Act, shall cease and determine and shall not be enforceable: Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section.
" The statement of objects and reasons appended to the Bill which ultimately became the Amending Act read as follows: "The Madras Buildings (Lease and Rent Control) Act, 1960 (Madras Act 18 of 1960), relates to the regulation of 880 the letting of residential and non residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Madras.
Under section 30 of the said Act, certain buildings are exempted from the provisions of the said Act.
Any non residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees is one such building or part is exempted under the said section 30.
It has been brought to the notice of the Government that the landlords of such non residential buildings, taking advantage of the exemption, referred to above, demand exorbitant rents from the tenants of such buildings, who mostly belong to the business community, and threaten to evict the tenants when the latter do not concede to the demands for such rents.
In order to provide relief to such tenants and to ensure that the interests of trade and industries do not suffer by demands of landlords for unreasonable and exorbitant rents.
the Government consider that the exemption now available to any non residential building or part thereof fetching a monthly rent exceeding four hundred rupees should be withdrawn.
At the same time, the Government consider that there is no need to take away the exemption available at present to any residential building or part thereof fetching a monthly rent exceeding Rs. 250/ .
The Bill seeks to achieve the above object.
" The result of the amendment was that the buildings which had been exempted from the operation of the principal Act under clause (iii) of section 30 came within the scope of the principal Act and the relationship between landlords and tenants of such buildings was to be regulated thereafter in accordance with the provisions of the principal Act.
Apparently in order to give protection to tenants of such buildings against whom proceedings for eviction had been instituted in civil courts, section 3 of the Amending Act provided that such proceedings should be treated as having abated.
The proviso to section 3 of the Amending Act however provided that nothing contained in that section should be deemed to invalidate any suit or proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section, the said date being, June 10, 1964.
This by necessary implication, section 3 of the Amending Act was applicable even to the case of a building in respect of which a decree for eviction had been passed but had not been executed or satisfied in full before June 10, 1964.
In view of the above provision, the City 881 Civil Court dismissed the suit as having abated by its order dated December 4, 1964.
The plaintiff filed two applications before the City Civil Court in March, 1965 one under order 9 Rule 9 of the Code of Civil Procedure to set aside the order dated December 4, 1964 dismissing the suit as having abated and another under section 5 of the Limitation Act for condoning delay in filing the application, under order 9, Rule 9 of the Code of Civil Procedure.
He also filed an appeal in A.S. No. 266 of 1965 on the file of the High Court of Madras against the order of the City Civil Court dated December 4, 1964.
Both the above applications were allowed by the City Civil Court on August 3, 1965.
On August 13, 1965, the defendant filed an additional written statement before the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act.
He also filed two revision petitions against the order passed by the City Civil Court allowing the two applications on August 3, 1965.
In the meanwhile, on an application made under section 24 of the Code of Civil Procedure by the plaintiff, the suit was withdrawn to the file of the High Court and it was renumbered as C.S. No. 218 of 1965.
It should be mentioned here that owing to the alteration of the pecuniary jurisdiction of the City Civil Court, the suit stood transferred to the file of the High Court on May 1, 1964 itself.
The defendant died on January 15, 1968.
He had made will on January 7. 1968 appointing executors and administrators in respect of his assets and issuing directions regarding the manner in which his assets should be disposed of.
By an order dated July 20, 1970 made by the High Court, defendants Nos. 2 to 10 who had been appointed executors an administrators were impleaded as legal representatives of the defendant (who was shown as defendant No. 1 thereafter).
The two civil revision petitions filed by the defendant! against the order passed on August 3,.1965 by the City Civil Court and the Appeal Suit No. 266 of 1965 filed by the plaintiff against the order of the City Civil Court dated December 4, 1964 were disposed of by a Division Bench of the High Court of Madras by a common order on June 28, 1972, the relevant part or which read as follows: "It is seen from the foregoing dates that at the time of the dismissal of the suit, the lower court had no jurisdiction to deal with suit and in that view the counsel appearing on both sides represent that the order dismissing the suit as having abated may be set aside and the suit may be tried on the original side of this Court.
We accordingly allow the appeal and set aside the order of dismissal of the suit on the ground that the City Civil Court had no jurisdiction to deal 882 with the same on the date of dismissal and direct the suit to be posted on the original side for being dealt with.
" It may be mentioned here that as stated earlier, the suit had already been withdrawn to the file of the High Court under section 24 of the Code of Civil Procedure and had been numbered as Civil Suit No. 218 of 1965.
In July, 1973, the plaintiff sought an amendment of the plaint praying for relief against defendants Nos. 2 to 10 on the ground that after the death of the original defendant No. 1, they were not entitled to continue in possession of the building as 'statutory tenants and the plaintiff was entitled to a decree against them in that very suit.
The above contention was based on the definition of the expression "tenant" in section 2(8) of the principal Act as it stood then.
After the amendment of the plaint, fresh written statements were filed by defendants Nos. 2 to 10 raising several pleas including the pleas which had already been raised in the written statements filed by defendant No. 1 before the City Civil Court.
On the basis of the pleadings, the trial court framed the following issues: "1.
Is the suit maintainable ? 2.
Has the plaintiff given proper notice of termination of the suit premises ? 3.
Does the suit abate by reason of Act XI of 1964 ? 4.
Are not the defendants entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 ? 5.
Whether the tenancy came.
to an end upon the death of K. Seethararma Rao ? 6.
Whether the defendants have no legal interest in the premises and consequently liable to be rejected ? 7.
To what reliefs are the parties entitled ? At the conclusion of the trial, the learned Judge held on issue No. 1 that the suit was maintainable, on issue No. 2 that the notice to quit had validly terminated the tenancy, on issue No. 4 that the defendants were not entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960; on issue No. S that the tenancy had come to an end even on March 1, 1964 and on issue No. 6 that the defendants had no legal interest in the premises.
He, however, declined to record any finding on issue No. 3 which related to the question whether the suit had abated ar not on June 10, 1964 by virtue of section 3 of ,; the Amending Act.
The learned Judge proceeded to dispose of the suit as if it was a fresh suit instituted after the death of the original 883 defendant No. 1 on January 15, 1968 even though there was no specific issue on the question whether it cd be treated such.
This appears to be so in view of the following observations made by the trial Judge in the course of his judgment: "Under the above circumstances, if the plaintiff files a suit today against the defendants he is entitled to get an executable decree for possession (without the necessity of going to the Rent Control Court) inasmuch as defendants 2 to 10 had never become 'tenants ' under the Act.
Therefore even if the suit filed in.
the City Civil Court is held to have abated, under the peculiar circumstances of this case, I see no reason why I should not treat the suit before me to be a fresh one.
It is to be seen that the application under section 24 of the Code of Civil Procedure for transfer of the suit from City Civil Court to this court was consented by the defendants.
In A.S. No. 266 of 1965, apart from setting aside the order of abatement passed by the City Civil Court, this Court directed that the suit be tried on the original side of this Court.
Even if the City Civil Court had no pecuniary jurisdiction to deal with the matter and record abatement, the defendants could have pressed in A.S. No. 266 of 1965 for an order by this Court that the suit had abated.
It is need less to point out that the order that was under appeal was one by which the City Civil Court held that the suit had abated.
No doubt that was passed without jurisdiction, inasmuch as the pecuniary jurisdiction of that Court had been reduced.
But it is open to this Court to have held in the said appeal itself that the suit had abated.
But the order was that the suit was to be tried on the original side.
The suit had been originally filed in 1964, that is more than 12 years ago.
Under such circumstances, I think it is wholly unnecessary to drive the plaintiff to a fresh suit.
" On the basis of the findings recorded by him, the learned trial Judge passed a decree for possession and damages for use and occupation.
The quantum of damages was directed to be determined under order 20, Rule 12 of the Code of Civil Procedure.
Defendants Nos. 2 to 10 were, however, allowed three years ' time to deliver vacant possession of the premises.
Aggrieved by the decree passed by the trial Court, the plaintiff filed O.S.A. No. 23 of 1977 and defendant No. 2 filed O.S.A 75 of 1977 on the file of the High Court of Madras.
The plaintiff in his appeal questioned the decree of the trial court only to the extent it granted a period of three years to the defendants to deliver possession 884 of the premises.
Defendant No. 2 in his appeal questioned the entire decree.
Both the appeals came up for hearing before a Division Bench of the High Court.
In the course of its judgment, the Division Bench formulated the following points for its consideration: "1.
What was the status of late Seetharama Rao after the termination of the tenancy whether he was a trespasser or a tenant holding over or a tenant at sufferance ? 2.
Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act, on the coming into force of the Tamil Nadu Act XI of 1964 ? 3.
Whether the suit instituted by the plaintiff abated in view of section 3 of the Tamil Nadu Act XI of 1964 ? 4.
Whether the "tenancy" came to an end upon the death of Seetharama Rao ? 5.
Whether defendants 2 to 10 are entitled to protection against eviction from the suit property by virtue of the Act as amended by the Tamil Nadu Act 23 of 1973 ?" The Division Bench held that the status of the defendant, Seetharama Rao from March 1, 1964 was that of a trespasser and he was liable to pay profits or damages for use and occupation to the plaintiff; that the defendant, Seetharama Rao was not entitled to the benefit of the principal Act by the coming into force of the Amending Act as the building itself was outside the scope of the principal Act and even if the building was within its scope, he was not a tenant as defined in the principal Act; that section 3 of the Amending Act did not apply to the suit in question and hence it did not abate on June 10, 1964 and that after the death of the defendant, Seetharama Rao, defendants 2 to 10 were not entitled to the protection against eviction under the principal Act as amended by the Tamil Nadu Act No. 23 of 1973.
Accordingly, it dismissed the appeal filed by defendant No. 2.
The appeal filed by the plaintiff was also dismissed as a period of 2.6 years out of the period of three years ' time granted by the trial court had expired by the time the judgment in appeal was delivered.
Aggrieved by the decree passed by the Division Bench, defendants 2 to 4 and 10 have filed the above appeal by special leave in this Court.
The principal contention urged in support of the appeal before us was that the suit having abated on the coming into force of the Amending Act, it was not open to the trial court to treat the proceedings before it as a new suit instituted after the death of the defendant, Seetharama Rao against defendants Nos. 2 to 10 and to pass a decree.
In the 885 instant case, as noticed earlier, the trial court did not decide the question whether the suit abated on the coming into force of the Amending Act.
The Division Bench of the High Court has held that the provisions of section of the Amending Act were not applicable to the suit and, therefore, the question of its abatement did not arise.
The undisputed facts in this case are: (1) Seetharama Rao held the suit property as a lessee before the institution of the suit; (2) that the lease had been terminated by the issue of a notice in accordance with section 106 of the Transfer of Property Act; (3) that a suit for eviction of Seetharama Rao was filed on March 2, 1964 before the City Civil Court, Madras which was competent to try it on the date of its institution; (I) that by virtue of alteration of the pecuniary jurisdiction of the City Civil Court and consequential provisions made in that connection, the suit stood transferred to the file of the original side of the High Court with effect from May 1, 1964 and that the suit was, therefore, deemed to be pending in law on the file of the High Court on June 10, 1964 on which date the Amending Act was published in the official Gazette even though in fact the file was Lying on that date with the City Civil Court.
The other proceedings which have been referred to above in some detail are not relevant for the purpose of deciding the question whether the suit abated on the publication of the Amending Act in the official Gazette.
Section 2 (ii) of the Amending Act repealed clause (iii) of section 30 of the principal Act.
Consequently any non residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district Board, panchayat or panchayat union council or the Corporation of Madras, as the case may be exceeded four hundred rupees per mensem was also brought within the scope of the principal Act and the relationship between the landlord and tenant of such building came to be regulated by it with effect from June 10, 1964.
Section 3 of the Amending Act consists of three parts.
Under the first part, it directed that every proceeding in respect of any nonresidential building or part thereof pending before any court or other authority or officer on the date of the publication of the Amending Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act abated in so far as the proceedings related to such building or part.
Under the second part, it provided that all rights and privileges which might have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause (iii) of section 30 of 886 the principal Act would cease and determine and would not be enforceable.
The proviso to section 3 which is the third part of that section provided that nothing contained in section 3 should be deemed to invalidate any suit or proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section.
On behalf of the plaintiff, three contentions were urged in the appeal before the High Court in support of his case that section 3 of the Amending Act was inapplicable to the present case.
They were (i) that section 3 of the Amending Act had no reference to a suit at all; (ii) that even if it had any reference to a suit, it did not apply to a suit of the present nature and (iii) that even if it applied to a suit of the present nature still on the pleadings of the plaintiff.
the present suit was not affected by the said provision.
The Division Bench rejected the first contention of the plaintiff that section 3 had no reference to a suit at all but it, however, upheld me case of the plaintiff on the basis of the other two contentions.
Relying upon the language of section 10(l) of the principal Act which provided that a tenant was not liable to be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16 and the decision of the Madras High Court in Theruvath Vittil Muhammadunny vs Melepurakkal Unniri & Anr.
and the decision of this Court in B.V. Patankar & ors vs C.G. Sastry, the Division Bench held that it was settled law that the principal Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed except in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement ' there was no justification whatever for the Legislature making a contrary provision in respect of non residential buildings to which the principal Act became applicable by virtue of the Amending Act.
The Division Bench, therefore, held that section 3 of the Amending Act was not applicable to the case on hand.
We are of the view that the above conclusion of the Division Bench is erroneous.
It is not for the Court to ask whether there was any justification for the Legislature to make a contrary provision in respect of the suits of the present nature.
It was not the contention of the plaintiff that section 3 of the Amending Act was unconstitutional.
In that situation, the High Court had no option but to apply the provision in question to the case on hand without going 887 into the question whether there was any justification for enacting it.
We are, however.
Of the view that in the circumstances in which the Amending Act came to be enacted, there was every justification for enacting section 3 in order to give protection to tenants against whom suits for eviction had been filed from buildings which were brought within the scope of the principal Act by deleting clause (iii) of section 30 of the principal Act.
The third contention of the plaintiff in support his plea that section 3 of the Amending Act was inapplicable was formulated thus: The provisions of the aforesaid section 3 would apply only when the three conditions viz. (i) that there should be a proceeding in respect of a non residential building or part thereof; (ii) that proceeding should be pending before any court or other authority or officer on the date of the publication of the Amending Act in the Fort St. George Gazette; and (iii) that proceeding should have been instituted on the ground that such building or part thereof was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act, existed.
It was argued that since the present suit did not satisfy the third requirement referred to above as the plaintiff had not referred to clause (iii) of section 30 of the principal Act in the plaint, section 3 of the Amending Act should be held to be inapplicable to it.
The Division Bench upheld the above contention observing that in order to attract section 3 of the Amending Act, there should be an allegation in the plaint that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act.
In order to arrive at the above conclusion, it relied upon the decision of the Madras High Court in M/s. Raval & Co vs K. G. Ramachandran & Ors.
and the decision of this Court in P. J. Gupta Co. vs K. Venkatesan Merchant & ors.
The passage in the case of M/s. Raval & Co (supra) on which the Division Bench relied was follows: "It has to be immediately conceded that the wording of this section can by no means be described as happy, or free from any cloud of ambiguity.
It is not very clear how a proceeding could have been instituted 'on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 ', or what is the precise scope of the rights and privileges which may accrue to the landlord, and which are to cease and determine." 888 We do not think that in the context in which section 3 of the Amending Act was enacted, it could be said that it was not possible to identify the proceedings to which that provision referred.
In the case of P. J. Gupta & Co. (supra), the effect of section 3 of the Amending Act is set out as follows: "The obvious result of section 30(iii) of the Act, as it stood before the amendment, was that, if the rental value of a non residential building,, as entered in the property tax book of the Municipality exceeded Rs. 400/ per mensem, a description which applies to the premises under consideration before us the landlord would have no right to proceed against the tenant for eviction under section 10(2) (ii) a) of the Act.
Section 3 of the Amending Act, on the face of it, applies to two kinds of cases.
Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds.
It applies: firstly, to cases in which a proceeding has been instituted "on the ground" that a non residential building "was exempt from the provisions of the principal Act" and is pending; and secondly, to cases where "rights and privileges, which may have accrued before such date to) any landlord in respect of non residential building by virtue of clause (iii) of section 30 of the principal Act" exist.
In the kind of case falling in the first category, the amendment says that the pending proceedings shall abate.
As regards the second kind of case, the amendment says that "the rights and privileges of the landlord shall cease and determine shall not be enforceable." Proceeding further, this Court observed: "It is not necessary, for the purposes of tho case before us, to speculate about the types of cases which may actually fall within the two wings of the obviously inartistically drafted section 3 of the Amending Act.
It is enough for us to conclude, as we are bound to on the language of the provision, that the case before us falls outside it.
" The above observations were made by this Court in a case where a proceeding had been initiated before the City Rent Controller in December, 1964 by a landlord for eviction of his tenant from a non residential building situated in the city of Madras which had been leased at Rs. 600/ per month on the ground that the building had been sub let.
The City Rent Controller ordered the eviction of the tenant.
In appeal, the Court of Small Causes at Madras allowed the 889 tenant 's appeal holding that the tenant had the right under the original lease of August 21, 1944 to sub let, and also because even violation of a clause of the subsequent lease of April 3, 1963, prohibiting subletting, did not entail a forfeiture of tenancy rights under the provisions of the Transfer of Property Act.
Its view was that, in the case of what it described as "a contractual tenancy" the provisions of the Transfer of Property Act applied to the exclusion of the remedies provided by the principal Act so that unless the lease deed itself provided for a termination of tenancy for sub letting in addition to a condition against subletting, the tenancy right itself could not be forfeited or determined by such a breach of the contract of tenancy.
In exercise of its revisional jurisdiction, under section 25 of The principal Act, the High Court of Madras reversed the judgment and order of the Small Cause Court holding that the rights of the landlord and tenant were governed on the date of the application for eviction by section 10(2) (ii) (a) of the principal Act which contained a prohibition against sub letting which involved parting with possession.
On appeal to this Court, the decision of the Madras High Court was affirmed holding that the effect of the amendment was that the landlord acquired a new right to evict a tenant under section 10(2) (ii) a).
This Court held that by virtue of section 3 of the Amending Act, all rights and privileges which might have accrued before the date of publication of the Amending Act in the official Gazette to any landlord in respect of any non residential building or part thereof by reason of clause (iii) of section 30 of the principal Act alone became enforceable.
But the right to seek eviction of the tenant Under section 10(2) (ii) (a) was unaffected even though the sub letting of the building had taken place prior to the enactment of the Amending Act.
From a reading of he above decision, it is obvious that This Court held that the right which the landlord acquired under section 10(2) (ii) (a) to evict the tenant was a now right and was not a pre existing right which could possibly be affected by section 3 of the Amending Act.
It is, however, clear from the observations of this Court extracted above that a proceeding which had been instituted "on the ground" that a non residential building "was exempt from the provisions of the principal Act" by virtue of clause (iii) of section 30 of The principal Act and was pending on the date of publication of the amendment in the official Gazette would abate.
This Court did not, however, go into the question as to what types of cases would fall within the scope of section 3 of the Amending Act.
We are of the view that the identification of such cases depends on the true cons 890 truction of the said provision.
In this case, we are faced with that question.
It is appropriate to refer at this stage to the following passage occurring in Craies on Statute Law (Sixth Edition) at page 99: "In Bratt vs Bratt [1926] 3 Addams 210, 216, Sir John Nicholl M. R. said as follows: "The key to the opening of every law is the reason and spirit of the law; it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.
Hence, to arrive at the true meaning of any particular phrase in a statute, the particular phrase is not to be viewed detached from its context in the statute; it is to be viewed in connection with its whole con text, meaning by this as well the title and preamble as the purview or enacting part of the statute.
" We have already referred to the object with which the Amending Act was passed and that was to give relief against unreasonable evictions and demands for unconscionable rates of rents to tenants of buildings which had been originally exempted from the operation of the principal Act.
It is clear that while doing so the Legislature gave relief also to persons against whom suits had been filed.
WE think that the words "instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue , of clause (iii) of section 30 of the principal Act" should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30(iii) of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act.
lt is seen that in the instant case, the original plaint was filed on the basis that the tenancy had been terminated with effect from the expiry of February 29, 1964.
The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs. 6000/ per month from the date of the plaint till delivery of the vacant possession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of Rs. 1,680/ per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then.
The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (iii) of section 30 of the principal Act because in the absence of such exemption, no effective decree for ejectment could be passed by the City Civil Court in view of section 891 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions of section 10 and section 14 to 16 thereof.
The plaintiff could not also have asked for a decree for damages at Rs. 6000/ per month which he had claimed in the plaint but for such exemption.
We are, therefore.
Of the view that section 3 of the Amending Act was applicable to the suit in question as it was a proceeding instituted in the City Civil Court on the ground that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 thereof although no express allegation was made in the plaint to that effect.
In order to get over the inevitable consequences flowing from section 3 of the Amending Act and the effect of an earlier decision of a Division Bench of the Madras High Court in Moolchand Gupta vs Madras Piece Goods Merchants Charitable Trust a novel and ingenious contention was urged on behalf of the plaintiff, the said contention being that after the termination of the lease with effect from February 29, 1964 by the issue of a notice under section 106 of the Transfer of Property Act, the original defendant became a trespasser and the premises in question ceased to be a building as defined in section 2(2) of the principal Act.
On the above basis, it was contended that the original defendant could not claim the benefit of any of the provisions of the principal Act and section 3 of the Amending Act.
It was argued that since a contention of this nature had not been considered in the case of Moolchand Gupta (supra), it had no binding effect on the Division Bench which heard this case.
It is appropriate at this stage to set out the passage from the judgment of the Division Bench of the High Court in which the binding nature of Moolchand Gupta 's case (supra) is considered: "In this context, Mr. Govind Swaminathan brought to our notice a decision of a Bench of this Court in Moolchand Gupta vs Madras Piece Goods Merchants Charitable Trust (supra) to which one of us was a party.
In our opinion, in that decision this question was not considered.
That case also was concerned with a non residential building which did not fall within the purview of the Act because of section 30(iii) of the Act.
The tenancy was terminated on 31st October, 1960 and the suit in ejectment was instituted on 19 12 1960 which ended in a compromise decree dated 31st January, 1963.
The decree provided for a direction for eviction against the quondam tenant, subject to cer 892 tain terms thereafter mentioned, to wit, the landlord being entitled to take possession of the portion of the premises in occupation of one Panchand and the Bullion Market Post Office immediately by executing the decree in so far as The said portion was concerned and the quondam tenant delivering possession of the rest of the portion in his occupation on or before 31st January, 1964 and the quondam tenant paying mesne profits at Rs. 1340/ per month for the period from 1st November 1960 to 31st January, 1963 and further mesne profits at Rs. 800/ per month for the period commencing from 1st February, 1963 till delivery of possession.
The decree also provided that if there was default in payment of the sum of Rs. 800/ or the other sum per month, the landlord would be entitled to execute the decree immediately.
Time for vacating was extended and before the building was actually vacated the Tamil Nadu 'Act 11 of 1964 intervened.
The question was, whether by virtue of the intervention of the Tamil Nadu Act 11 of 1964, the decree could be executed.
The learned trial Judge felt that in view of the fact that there had been a surrender of a part of the holding by the quondam tenant 's sub tenant, there was a disruption of the entire holding and therefore the quondam tenant would not be a statutory tenant within the meaning of section 2(8) of the Act.
The Bench disagreed with this conclusion and held that the quondam tenant would be a tenant under section 2(8) of the Act as he continued to remain in possession of the property even after the termination of the tenancy in his favour.
No point was urged before the Court that the termination of tenancy having taken place ? before Tamil Nadu Act 11 of 1964 came into force, the definition of the term 'tenant ' in section 2(8) did not apply to the quondam tenant in that case and therefore the said decision cannot be considered to be an authority for the point which is now raised before us.
" From the facts of Moolchand Gupta 's case (supra) it is clear that the Division Bench of the Madras High Court had held that a tenant whose tenancy had been terminated with effect from October 31, 1960 and against whom a decree for eviction had been passed prior to the date on which section of the Amending Act came into force was entitled to be treated as a tenant by virtue of the said provision since he had continued to remain in possession of the property even after 893 the termination of the tenancy.
The only ground on which the Division Bench which heard the present case did not follow the ruling in Moolchand Gupta 's case (supra) is that the effect of the termination of tenancy prior to the date on which Tamil Nadu Act No. Xl of 1964 came into force had not been considered in that case.
The binding effect of a decision, as observed by this Court in Smt.
Sommavanti & Ors.
vs The Sate of Punjab & Ors does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.
On going through the decision in Moolchand Gupta 's case (supra) we are of the view that the appropriate procedure which the Division Bench should have followed in this case was to refer it to a full Bench instead of bypassing the said decision in the manner in which it has been done in this case.
The well settled practice to be followed in such cases is succinctly put by Das Gupta, J. in Mahadeolal Kanodia vs The Administrator General of West Bengal as follows: "Before we part with this appeal, however, it is our duty to refer to one incidental matter.
We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan 's case was cited before the learned Judges ' who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench.
Judicial decorum no less than legal propriety forms the! basis of judicial procedure.
If one thing is more necessary in law than any other thing, it is the quality of certainty.
That quality would totally disappear if judges of co ordinate jurisdiction in a High Court start overruling one another 's decision.
If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion.
The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench.
894 In such a case lawyers would not know how to advise their the clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.
As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.
" Be that as it may, we are of the view that having regard to our finding that the suit stood abated on June 10, 1964 by virtue of the provisions of section 3 of the Amending Act, the original defendant, Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act.
The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date.
The several decisions on which reliance was placed by the Division Bench for determining the character of possession of the original defendant, Seetharama Rao after the expiry of the notice given under section 106 of the Transfer of Property Act were not relevant for the purpose of this case because in none of them there was any occasion to consider the effect of a provision similar to section 3 of the Amending Act.
We, therefore, do not agree with the finding of the Division Bench that the original defendant was a trespasser in possession of the premises in question after June 10, 1964.
We also find it difficult to agree with the finding of the Division Bench that the premises in question was not a 'building ' as defined in section 2(2) of the principal Act.
The reason given by the Division Bench for holding that the building in question was not a 'building ' within the meaning of section 2(2) of the principal Act was that it was not a building which was either 'let ' or 'to be let ' separately for residential or non residential purposes.
It is necessary to extract that part of the judgment of the Division Bench where the above question is dealt with: "The definition of the word 'building ' in section 2(2) states: "building ' means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes . . 895 Consequently it is not every building that comes within the scope of the Act, but only a building let or to be let separately for either of the two purposes.
Admittedly on 10 6 1964 the suit building was not let because the tenancy came to an end by 29 2 1964 and late Seetharama Rao was not occupying the building from 1 3 1964 as a tenant, as found by us.
Therefore, the only other question is, whether the suit building can be said to be a building to be let separately for non residential purposes on 10 6 1964.
We have already referred to the claim of their plaintiff in his plaint that he needed the building for his own use and the contention of late Seetharama Rao in his written statement dated 25 4 1964 that the plaintiff was merely anxious to extort higher rent and for that purpose had from time to time approached him, that although he was prepared to pay a reasonable rent, he was not willing to pay anything exorbitant and that it is because of that the plaintiff had instituted the present suit on a pretence of requiring it for his own business.
With reference to the notice exhibit P 2, late Seetharama Rao stated that notice was merely in keeping with the previous notices to the same effect which were not intended to be acted upon.
However before the trial Judge the claim of the plaintiff that he required the premises for his own need was not put in issue and no issue was framed with reference thereto.
Tho learned Judge himself states in his judgment: "On the relevant date, undoubtedly there was no letting of the building and it is nobody 's case that the same was to be let.
" The correctness of this statement found in the judgment of the learned Judge, namely, that it was nobody 's case that the building was to be let has not been challenged either in the ground of the appeal filed before this Court or in the arguments before us.
Therefore we have to proceed on the basis that it was not the case of the defend its that the plaintiff wanted to let the premises in question.
This Court has construed the relevant expression, namely, 'building to be let ' occurring in section 2(2) of the Act as meaning 'building intended to be let ' in R. K. Veerappa Naidu & Anr.
vs N. Gopalan In the present case on 10 6 1964 it was not the case of the defendants that the building was intended to be let and it was not also their case that at any stage thereafter the plaintiff intended to let the 896 suit building.
Therefore, it follows that the suit building did not come within the purview of the Act as a result of the amending Act 11 of 1964.
" The reason given by the Division Bench for holding that the building in question was not a 'building ' within the meaning of section 2(2) of R the principal Act appears to be a strange one.
A definition clause does not necessarily in any statute apply in all possible contexts in which the word which is defined may be found therein.
The opening clause of section 2 of the principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein unless ' the content otherwise requires.
The two fold reasoning of the Division Bench for holding that the building in question was not a 'building ' is that on June 10, 1964 (i) there was no lease in force and hence it was not let and (ii) that on that date the plaintiff had no intention to lease it and therefore it was not to be let.
We are of the view that the words "any building. . let. " also refer to a building which was the subject matter of a lease which has been terminated by the issue of a notice under section 106 of the Transfer of Property Act and which has continued to remain in occupation of the tenant.
This view receives support from the definition of the expression 'tenant ' in section 2(8) of the principal Act which includes a person continuing in possession after the termination of the tenancy in his favour.
If the view adopted by the Division Bench is accepted then it would not be necessary for a landlord to issue a notice of vacancy under section 3 of the principal Act when a building becomes vacant by the termination of a tenancy or any the eviction of the tenant when he wants to occupy it himself.
In law he cannot do so.
He would be entitled to occupy it himself when he is permitted to do so under section 3(3) or any of the provisions of section 3A of the principal Act.
This also illustrates that the view of the Division Bench is erroneous.
We, therefore, hold that the building in question was a 'building ' within the meaning of that expression in section 2(2) of the principal Act on the date on which section 3 of the Amending Act became operative.
It thus becomes clear that the Suit came to an end in the eye of law on June 10, 1964 and the original defendant became entitled to the protection of the principal Act.
He could thereafter be evicted from the building only after an order was made, by the Controller under any of the provisions of the principal Act which conferred jurisdiction on him to do so.
As mentioned earlier, no formal order was passed by the High Court on its original side stating that the suit had abated on June 10, 1964 till the death of the original defendant which took 897 place.
On January 15, 1968.
Owing to certain proceedings which were instituted by one or the other of the parties, the case was treated as a pending proceeding on the file of the High Court although in law, it was not open to the court to proceed with it after June 10, 1964.
The next significant step that was taken before the High Court was the application made by the appellant in the year 1973 requesting the Court to permit him to amend the plaint by the inclusion of a prayer for possession against defendants Nos. 2 to 10 on the basis that they were not 'tenants ' as defined in section 2(8) of the principal Act.
That application was allowed.
Defendants Nos. 2 to 10 thereafter filed their written statements and the issues framed in the suit were recast in the light of the pleadings.
The learned trial Judge, as stated above, disposed of the suit as a fresh one as against defendants Nos. 2 to 10 without recording a finding on the question whether it had abated or June 10, 1964.
The learned trial Judge does not state in the course of its judgment the date from which the proceeding was treated as a fresh suit.
In the instant case, the suit itself was originally flied on March 2, 1964.
The original defendant died on January 15, 1968.
Even if the proceeding was treated as a fresh suit against defendants Nos. 2 to 10, it could be treated as such only from a date subsequent to January 15, '968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos. 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant.
In the instant case, since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so.
By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable.
In the absence of such specification, the plaintiff became entitled to claim damages under order 20, Rule 12 of the Code of Civil Procedure even from the date of the suit i.e. March 2, 1964.
The Division Bench by its judgment affirmed that part of the decree of the trial court.
The direction for payment, of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit.
This defect, however is of a 3 473SCI/79 898 minor character.
What is more fundamental in this case is that it was not permissible for the trial court to Treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into a fresh suit instituted against defendants NOS.
2 to 10 after the death of the original defendant, Seetharama Rao.
An amendment of a plaint by inclusion of a new prayer or by addition of new parties can be made only where a suit is pending before a court in the eye of law.
On June 10, 1964, the entire proceedings commenced with the plaint filed on March 2, 1964 stood terminated and there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer.
We are of the view that the addition of new parties which took place after the death of Seetharama Rao and the amendment of ' the plaint in the year 1973 and the passing of the decree by the trial Judge against defendants Nos. 2 to 10 who were not parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were all without jurisdiction.
It was, however, argued on behalf of the plaintiff before us relying upon the decision of this Court in B. Banerjee vs Anita.
Pan that since the parties had gone to trial with open eyes knowing fully that the plaintiff was relying upon a cause of action which accrued in his favour after the death of the original defendant and on the basis of the amendment of the plaint in the year 1973, the decree passed by the trial court and affirmed by the Division Bench of the High Court should not be interfered with in the interests of justice and equity.
It is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by this Court having regard to the delay which had already ensued.
It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case.
To repeat, in the present case, the suit abated by reason of an express provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right .
It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different.
Parties could not either by 899 consent or acquiescence confer jurisdiction on court when law had taken it away.
In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings.
In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable.
We accordingly allow the appeal, set aside the decrees passed by the trial court and by the Division Bench of the High Court and dispose of the suit as having abated on June 10, 1964.
The findings on issues Nos. 4 and 6 are set aside without expressing any opinion on them reserving liberty to the parties to agitate the question in appropriate proceedings.
Having regard to the peculiar circumstances of: the case, we direct the parties to bear their own costs throughout.
P.B.R. Appeal allowed.
| IN-Abs | In July, 1940 the plaintiffs father leased out the building of which he was the owner, to the defendant on a monthly rent of Rs. 950 for running a restaurant.
Even after the expiry of the period of lease in July, 1943 the defendant continued to be in possession of the building.
By virtue of the Madras Non residential Buildings Rent Control order, 1946 the defendant became a statutory tenant and under the order fair rent was fixed at Rs. 1680 p.m.
In 1949 the 1946 order was replaced by the Madras Buildings (Lease and Rent Control) Act.
On the death of his father in 1955 the plaintiff became the owner of the building.
The 1949 Act was repealed and replaced by the Tamil Nadu Buildings (Lease and Rent Control ) Act, 1960 (the Principal Act).
Section 30(iii) of the Principal Act provided that it was not applicable to non residential buildings, the rental value of which, according to the assessment of the Corporation of Madras, exceeded Rs. 400 p.m.
Even so the defendant continued to be in possession of the building.
Since the building was not governed by the Principal Act the plaintiff issued notice to the defendant to quit and instituted a civil suit in the City Civil Court on March 2, 1964 for eviction and damages.
In the meantime in June, 1964, by an amendment Act, the exemption contained in section 30 of the Principal Act in respect of non residential buildings was withdrawn so that from then on non residential buildings with a monthly rent of Rs. 400/ and above were also governed by the Principal Act.
Sec ion 3 of the Amending Act also provided that proceedings for eviction of the tenants of such non residential buildings instituted in civil courts should be treated as having abated.
In view of the amendment in December 1964 the City Civil Court dismissed the plaintiff s suit as having abated.
Thereupon the plaintiff filed an application under O. IX, r. 9 of the Code of Civil Procedure to set aside, its order dismissing the suit as having abated.
This application was allowed.
The defendants filed additional written statements in the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act.
In the meantime as a result of the plaintiff s application under section 24, Code of Civil Procedure the High Court withdrew the suit to its file (on the death of the original defendant, defendants 2 to 10 were impleaded as his legal representatives).
On the issue whether the suit had abated on June 10, 1964 by virtue of section 3 of the Amending Act the trial judge of the High Court refused to record a finding and disposed of the suit as if it was a fresh suit after the death of the 876 original defendant.
He passed a decree for possession and damages for use and occupation.
On appeal by the defendants the Division Bench of the High Court held that from March 1, 1964 the original defendant was a trespasser, that he was not entitled to the benefit of the Principal Act, that with the coming into force of the Amending Act the building itself was outside the scope of the principal Act, that section 3 of the Amending Act did not apply to the suit and so it did not abate on June 30, 1964 and that on the death of the original defendant, defendants 2 to 10 were not entitled to the protection against eviction under the Principal Act as amended in 1973.
Allowing the appeal, ^ HELD: Section 3 of the Amending Act was applicable to the suit as it was a proceeding instituted in the City Civil Court on the ground that the building was exempt from the provisions of the Principal Act by virtue of section 30(iii) thereof although no express allegation was made in the plaint to that effect.
[891 B] 1.
(a) The view of the Division Bench that section 3 of the Amending Act was not applicable to this case was erroneous in the absence of a contention by the plaintiff that section 3 was unconstitutional.
It was not for the court to ask whether there was any justification for the legislature to make a contrary provision in respect of the suits of the present nature.
There was every justification for enacting section 3 in order to give protection to the tenants against whom suits for eviction had been filed for buildings.
which were brought within the scope of the Principal ACT by deleting cl.
(iii) of section 30 of the Principal Act.
[886G, 887B] (b) In the context in which section 3 of the Amending Act was enacted it could not be said that it was not possible to identify the proceedings to which that provision referred.
In P. J. Gupta 's case this Court held that a proceeding which had been instituted on the ground that a non residential building was exempt from the provisions of the Principal Act by virtue of section 30(iii) and was pending on the date of publication of the amendment in the official gazette would abate but did not consider the type of cases which would fall within the scope of 3 of the Amending Act [888A B, 889G H] P. J. Gupta & Co. vs K. Venkatesan Merchant & ors.
; ; held inapplicable.
(e) The words "instituted on the ground that such building or part was exempt from the provisions of the Principal Act by virtue of cl.
(iii) of section 30 of the Principal Act" should be construed in the context in which they appeared as referring to a proceeding which had been instituted in the light of section 30(iii) of the Principal Act which granted exemption in respect of the buildings refer red to therein from the operation of the Principal Act.
Any other construction would defeat the object of the Amending Act.
[890E F] In the instant case the original plaint was filed on the basis that The tenancy had been terminated with effect from the expiry of February 29, 1964.
The plaintiff prayed for the eviction of the defendant damages for use and occupation and not the fair rent fixed under the Rent Control law.
The suit could be filed only because of the exemption contained in section 30(iii) of the Principal Act 877 because in the absence of such exemption no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the Principal Act.
[890 G H] 2.
The original defendant was not a trespasser in possession of the premises after June 10, 1964.
He became a statutory tenant of the premises and could not be evicted from them except in accordance with the procedure specified in the Principal Act.
The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date [894 C D] 3.
(a) The building in question was a building within The meaning of that expression in section 21 '>) of the Principal Act on the date when section 3 of the amending Act came into force.
[896 F G] (b) The view of the Division Bench that the suit property was not a "building" within the meaning of section 2(2) on the ground that there was no lease in force and hence it was not let and that on that date the plaintiff had no intention to lease it and therefore it was not to be let was erroneous.
A definition clause does not necessarily apply in all possible contents in which the word may be found.
The opening clause of section 2 of the Principal Act suggests that any expression defined in that section should be given a meaning assigned to it therein unless the context otherwise requires.
[896 B C] 4.
The original defendant became entitled to The protection of the Principal Act on June 10, 1964 and he could be evicted from the building only after an order was made by the Rent Controller.
The High Court did not pass an order the suit had abated on June 10, 1964 till the death of the original defendant on January 15, 1968.
As a result of the proceedings instituted by one or the other of the parties the case was treated as pending although in law it was not open to the Court to proceed with it after 10.
[896G 897A] 5.
It has not permissible for the trial court to treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into fresh suit instituted against defendants No. 2 to 10 after the death of the original defendant.
An amendment of the plaint by inclusion of a new prayer or by addition of new parties can be made only where in the eye of law a suit is pending before a Court.
When the suit filed on March 2, 1964 stood terminated with the coming into force of the amending Act on June 10, 1964 there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer.
Therefore the addition of parties which took place after the death of the original defendant and the amendment of the plaint in 1973 requesting the court to pass a decree against defendants 2 to 10 who were not ' parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were without jurisdiction.
[898A D] B. Banerjee vs Anita Pan, ; ; held inapplicable.
|
Civil Appeal No. 422 of 1980.
Appeal by Special Leave from the Judgment and Order dated the 23 8 1979 of the Madhya Pradesh High Court (Jabalpur Bench) at Gwalior in Second Appeal No. 42 of 1979.
1246 section K. Gambhir for the Appellant.
Mr. N. section Das Bahl for Respondent.
The Judgment of the Court was delivered by DESAI, J.
Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government.
He was served with a charge sheet dated March 6, 1969, in which he was accused of misconduct.
Respondent refuted the charges.
A departmental enquiry was held by the Divisional Forest Officer, Mr. Malhotra, in respect of the charges framed against the respondent.
Charge of misconduct was held proved whereupon the punishing authority served respondent with a second show cause notice dated February 12, 1970, as contemplated by Article 311(2) of the Constitution as it stood prior to its amendment by the Constitution (Fortysecond Amendment) Act, 1976.
The dispute in this appeal centres around the construction of this notice No. E/1/2053 dated February 12, 1970, and its relevant portion may be extracted: ".
the Enquiry Officer has concluded in the report that he is guilty of the above mentioned charges.
Hence as a result of the above said charges having been established, why you shall not be imposed major penalty under the M. P. Civil Services Act ? .
Why you will not be removed from the State Service by imposing the abovesaid punishment ?" After the respondent replied to the notice the disciplinary cum punishing authority imposed the penalty of compulsory retirement on the respondent.
The respondent questioned the validity and correctness of the punishment in Civil Suit No. 227A/73 filed by him in the Court of the Civil Judge, Civil Court, Class II, Sabalgarh.
The trial Court decreed the suit and set aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service.
On appeal by the State of Madhya Pradesh, the Second Additional District Judge, Morena, set aside the decree of the trial court and dismissed the suit of the respondent.
On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial court with the result that a declaration was granted that the respondent would continue in service till the date of his superannuation.
Hence this appeal by special leave by the State of Madhya Pradesh.
1247 The High Court was of the opinion that strict compliance with Art.311(2) of the Constitution along with rule 15(4)(i)(b) of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 ( '1966 Rules ' for short), must be insisted upon because it provides a safeguard against arbitrary removal from service of Government servants.
Consistent with this approach and drawing sustenance from the decision of this Court in Union of India & Ors.
vs K. Rajappa Menon,(1) it was held that unless the disciplinary or competent authority tentatively determines to inflict a particular penalty and specifies the particular penalty to be inflicted on the delinquent Government servant, the show cause notice cannot be sustained without such a particular penalty being specified and the final order cannot be sustained unless the specified and no other penalty is imposed.
Article 311(2) as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it is proposed after a departmental inquiry to impose on the delinquent Government servant any of the penalties referred to in article 311 so as to give a reasonable opportunity of making representation on the penalty proposed.
Rule 15(4) (i)(b) of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting the penalty proposed to be imposed on the concerned government servant calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis if the evidence adduced during the inquiry held under rule 14.
It would thus appear that the punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved.
At that stage the decision of the punishing authority is a tentative decision and in the very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty.
This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant, the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty on them the one tentatively decided.
1248 Principle of natural justice and fair play implicit in article 311(2) and rule 15(4) (i) (b) would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional obligation, and if the delinquent officer is in a position to persuade by his representation, to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty, and consequently the disciplinary authority would be free to impose a lesser penalty than the one proposed in the second notice.
This is the constitutional scheme.
If the view that the High Court has taken is to be accepted that the disciplinary authority must tentatively decide upon the penalty and specify the penalty in the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only either confirm the tentative decision but cannot award a lesser punishment, the exercise of giving second show cause notice becomes self defeating and giving of the notice inviting the representation on the question of penalty would be an exercise in futility.
Such an approach would render a tentative decision as final and the rest being an empty formality.
Such could not be the underlying object in enacting a constitutional mandate for the protection of government servants.
In service jurisprudence for different types of misconduct various penalties are prescribed in service rules.
1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons.
In the list of penalties the first three are styled as 'minor penalties ' and the remaining six are styled as 'major penalties '.
Compulsory retirement is one of the major penalties.
Similarly, removal from service which shall not be a disqualification for future appointment in government service and dismissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties.
The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant.
Degree of seriousness of misconduct will ordinarily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servant.
Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct.
But this is a tentative decision.
On receipt of representation in response to notice, the disciplinary authority will apply its mind to it, take into account any extenuating or mitigating circumstances pleaded in the representation and finally 1249 determine what should be penalty that would be commensurate with the circumstances of the case.
Now, if a major penalty was tentatively decided upon and a lesser or minor penalty cannot be awarded on the view taken by the High Court because this was not the specified penalty, the government servant to whom a notice proposing major penalty is served would run the risk of being awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified in the show cause notice.
Such a view runs counter to the principle of penology.
In criminal and quasi criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its fold the minor penalty.
If a major penalty is proposed looking to the circumstances of the case, at that stage, after taking into consideration the representation bearing on the subjects and having an impact on the question of penalty a minor penalty can always be awarded.
In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court 's discretion is by legislation fettered.
This is so obvious that no authority is needed for it but if one is needed, a constitution Bench of this Court in Hukam Chand Malhotra vs Union of India(1) dealt with this very aspect.
Relevant portion of the second show cause notice which was before this Court may be extracted: 'On a careful consideration of the report, and in particular of the conclusions reached by the Enquiry Officer in respect of the charges framed against you the President is provisionally of opinion that a major penalty viz., dismissal, removal or reduction should be enforced on you. ' Ultimately, after taking into consideration the representation made by the concerned government servant penalty of removal from service was imposed upon him.
It was contended before this Court that in view of the decision of the Privy Council in High Commissioner for India and High Commissioner for Pakistan vs I. M. Lall, and Khem Chand vs Union of India(3) it is well settled that the punishing authority must either specify the 'actual punishment ' or 'particular punishment ' in the second show cause notice otherwise the notice would be bad.
Repelling this contention this Court observed as under: 1250 Let us examine a little more carefully what consequences will follow if article 311(2) requires in every case that the "exact" or "actual" punishment to be inflicted on the Government servant concerned must be mentioned in the show cause notice issued at the second stage.
It is obvious, and article 311(2) expressly says so, that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him, for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him, he does not merit the extreme penalty of dismissal, but merits a lesser punishment, such as removal or reduction in rank.
If it is obligatory on the punishing authority to state in the show cause notice at the second stage the "exact" or "particular" punishment which is to be inflicted, than a third notice will be necessary if the State Government accepts the representation of the Government servant concerned.
This will be against the very purpose for which the second show cause notice was issued". ".
If in the present case the show cause notice had merely stated the punishment of dismissal without mentioning the other two punishments it would still be open to the punishing authority to impose any of the two lesser punishments of removal or reduction in rank and no grievance could have been made either about the show cause notice or the actual punishment imposed".
The High Court in support of its decision has relied upon K. Rajappa Menon 's case (Supra).
The High Court appears to be of the view that the decision in Rajappa Menon 's case is an authority or the proposition that if the punishing authority fails to specify any particular punishment to be imposed on the Government servant the show cause notice cannot be sustained without such a particular punishment being specified.
Such was not the case before this Court in Rajappa Menon 's case.
The contention canvassed before this Court was that if disciplinary authority specifies the penalty tentatively decided upon by it.
it would indicate that the authority has finally made up its mind and, therefore, the notice would be bad.
This contention was in terms negatived relying upon Khem Chand 's case (Supra) and it was observed that the procedure which is to be followed under article 311(2) of the Constitution of affording a reasonable opportunity includes giving of two notices, one at the enquiry stage and 1251 the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment.
It is quite obvious that unless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination.
This is of no assistance in the case under discussion.
It is thus incontrovertible that if any particular penalty is specified as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing article 311(2) will not be violated.
In fact, this leaves open a discretion to the punishing authority which accords with reason, fair play and justice.
The fact situation in this appeal is that in the notice dated February 12, 1970, the disciplinary authority stated that it was tentatively proposed to impose major penalty, viz., removal from service.
Original notice is in Hindi language.
Its translation in English language is placed on record.
It clearly transpires from the notice that the punishing authority tentatively proposed to impose a major penalty of removal from service.
Ultimately, after taking into consideration the representation of the respondent the disciplinary authority imposed penalty of compulsory retirement.
In relation to penalty of removal from service the penalty of compulsory retirement inflicts less harm and, therefore, it is a lesser penalty compared to removal from service.
Compulsory retirement results in loss of service for certain years depending upon the date of compulsory retirement and the normal age of superannuation, but the terminal benefits are assured.
In removal from service there is a further disqualification which may have some repercussion on terminal benefits.
It was not disputed before us that in comparison to removal from service compulsory retirement is a lesser penalty.
Therefore, when in the second show notice major penalty of removal from service was tentatively proposed, it did comprehend within its fold every other minor penalty which can be imposed on the delinquent government servant.
That having been done, no exception can be taken to it.
The High Court was accordingly in error in holding that the second show cause notice was invalid and on this ground allowing the second appeal of the respondent, and decreeing his suit.
Accordingly this appeal will have to be allowed.
1252 The next question is, what order we should make in this appeal.
If the appeal is allowed, naturally the suit of the respondent will stand dismissed. ' The respondent was a Forest Guard, a petty servant, serving in the Forest Department of the State.
The charge against him was that he removed some forest wood worth about Rs. 310.12P.
He has been in this litigation for the last 10 years.
He won in the trial court and in the High Court.
This appeal was preferred by the State for a decision on the question of law which may affect other cases.
Allowing the State appeal would clarify the legal position and that would serve the purpose of the State in preferring the appeal.
A welfare State would hardly be interested in pursuing its employees serving in the lower echelons of service as would inflict, unbearable burden on him.
Further, if the order by the High Court is not interfered with, the respondent would have to be reinstated in service but by the passage of time he would have by now retired on superannuation also and accordingly he would be entitled to his salary for the period commencing from date of his compulsory retirement to the date of his normal retirement on superannuation.
Since we are exercising our extraordinary jurisdiction under article 136 of the Constitution, we are not bound to set aside the order of the High Court directing reinstatement of the respondent but as he would now only be entitled to his back wages, we quantify the same at Rs. 10,000/ and direct that the State shall pay the same with costs quantified at Rs. 1,000/ to the respondent.
Such an approach accords with the demands of social justice, reason and fair play.
[See Punjab Beverages Pvt. Ltd. vs Suresh Chand & Ors.(1)] The State shall pay the amount herein directed to be paid within two months from today and the respondent shall be entitled to his terminal benefits from the date of his retirement on superannuation.
This appeal stands disposed of accordingly.
S.R. Appeal allowed.
| IN-Abs | Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government.
He was served with a charge sheet dated March 6, 1969, in which he was accused of misconduct.
Respondent refuted the charges.
A departmental enquiry was held by the Divisional Forest Officer, Mr. Mathotra, in respect of the charges framed against the respondent.
Charge of misconduct was held proved whereupon the punishing authority served respondent with a second show cause notice dated February 12, 1970, as contemplated by Article 311(2) of the Constitution as it stood prior to its amendment in 1976.
After the respondent replied to the notice the disciplinary cum punishing authority imposed the penalty of compulsory retirement on the respondent.
The respondent questioned the validity and correctness of the punishment in Civil Suit No. 227 A/73 filed by him in the Court of the Civil Judge, Civil Court, Class II, Sabalgarh.
The trial Court decreed the suit and set aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service.
On appeal by the State of Madhya Pradesh, the Second Additional District Judge, Morena, set aside the decree of the trial Court and dismissed the suit of the respondent.
On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court a allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial Court with the result that a declaration was granted that the respondent would continue in service till the date of his superannuation.
Hence this appeal by special leave by the State of Madhya Pradesh.
Allowing the appeal, the Court ^ HELD: 1. Article 311(2) as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it was proposed after departmental inquiry to impose on the delinquent Government servant any of the 1244 penalties referred to in article 311 so as to give a reasonable opportunity of making representation on the penalty proposed.
Rule 15(4)(i)(b) of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting out the penalty proposed to be imposed on the concerned government servant, and calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 14.
The punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved.
At that stage the decision of the punishing authority is a tentative decision and in the very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty.
This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant, the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty then the one tentatively decided.
[1247 C H] 2.
Principle of natural justice and fair play implicit in article 311(2) and rule 15(4)(i)(b) would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional obligation, and if the delinquent officer is in a position to pursuade by his representation, to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty, and consequently the disciplinary authority would be free to impose a lesser penalty than the one proposed in the second notice.
This is the constitutional scheme.
[1248 A B] If the view, namely, that the disciplinary authority must tentatively decide upon the penalty and specify the penalty in the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only confirm the tentative decision but cannot award a lesser punishment, the exercise of giving second show cause notice becomes self defeating and giving of the notice inviting the representation on the question of penalty would be an exercise in futility.
Such an approach would render a tentative decision as final and the rest being an empty formality.
Such could not be the underlying object in enacting a constitutional mandate for the protection of government servants.
[1248 C E] In service jurisprudence for different types of misconduct various penalties are prescribed in service rules.
1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons.
Compulsory retirement is one of the major penalties.
Similarly, removal from service which shall not be a disqualification for future appointment in government service and dismissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties.
The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant.
Degree of seriousness of misconduct will ordi 1245 narily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servant.
Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct.
But this is a tentative decision.
On receipt of representation in response to notice, the disciplinary authority will apply its mind to it, take into account any extenuating or mitigating circumstances pleaded in the representation and finally determine what should be the penalty that would be commensurate with the circumstances of the case.
[1248 E H, 1249 A] It a major penalty was tentatively decided upon and a lesser or minor penalty cannot be awarded because this was not the specified penalty, the government servant to whom a notice proposing major penalty is served would run the risk of awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified in the show cause notice.
Such a view runs counter to the principle of penology.
In criminal and quasi criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its fold the minor penalty.
If a major penalty is proposed looking to the circumstances of the case, at that stage, after taking into consideration the representation bearing on the subject and having an impact on the question of penalty a minor penalty can always be awarded.
In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court 's discretion is by legislation fettered.
[1299 A D] Therefore, if any particular penalty is specified as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing article 311(2) will not be violated.
In fact, this leaves open a discretion to the punishing authority which accords with reason, fair play and justice.
[1251 B C] Hukam Chand Malhotra vs Union of India,[1959] Suppl.
1 SCR 892; followed.
Union of India and Ors.
vs K. Rajappa Menon,[1969] 2 SCR 343; explained.
Supreme Court while exercising its extraordinary jurisdiction under Act.
136 of the Constitution, is not bound to set aside the order of the High Court directing reinstatement of the employee, when he has succeeded in the two courts below.
Quantifying the backwages and the costs would accord with the demands of social justice, reason and fairplay.
[1252 D E] Punjab Beverages P. Ltd. vs Suresh Chand and Ors. ; ; followed.
|
Petition Nos.
1488 89, 1556 57, 1571/79 and 29, 201, 222, 249, 260 263, 267, 268 271, 278, 279, 304, 305, 309, 310 and 326 of 1980.
(Under Article 32 of the Constitution) 1257 Anil Dev Singh, S.S. Jauhar and Lalit Kumar Gupta for the Petitioners in WP Nos.
1488 89, 1571/79 and 304, 309 310/80.
Anil Dev Singh and S.K. Sabharwal for the Petitioners in WP Nos. 201, 249, 267, 278, 279 and 326/80.
Naunit Lal for the Petitioners in WP Nos. 1556 57/79, 29, 222, 260 63, 268 271 and 305/80.
S.N. Kackar for the Respondent in WP Nos.
1488 1489/79.
Y.S. Chitale and Mukul Mudgal for the Respondent in WP Nos.
1556 1557/79.
Altaf Ahmed for Respondent Nos.
1 3 in WP 1488 and RR.
1 6 in WP 1489/79 and in all the matters.
ATM Sampath and P.N. Ramalingam for RR.
7 in WP No. 1488/79 and 1551 1557/79.
C.S.S. Rao for RR.
12 in WP No. 1488/79.
S.P. Gupta, V.K. Pandita, R. Satish and E.C. Agarwala and Dwarka Nath Gupta for the Intervener in WP Nos.
1556 1557/79.
A.K. Sen, V.K. Pandey, R. Satish, S.P. Gupta, Dwarka Nath Gupta and E.C. Agarwala for the Intervener in WP Nos. 1488 1489/79.
L.M. Singhvi (Dr.), L.K. Pandey and Mr. Naunit Lal for the Petitioner in WP No. 29/80.
The Judgment, of the Court was delivered by GUPTA, J.
The selection of candidates admitted to the Government Medical College, Jammu, for the academic year 1979 80 is challenged in these petitions under Article 32 of the Constitution by some of the candidates who were not selected.
By notification published in the Jammu and Kashmir Government Gazette on June 21, 1979 applications were invited for admission to the M.B.B.S. course in the aforesaid college.
Only those candidates who had passed the Pre Medical or Inter Science or First Year T.D.C. (Medical Group) examination from the University of Jammu or any other equivalent examination and had secured not less than 50 per cent marks in science subjects in aggregate (theory and practical) were eligible to apply for admission; however, for scheduled castes, scheduled tribes, Bakarwal and Gujjar candidates and candidates from Ladakh district and 'Bad Pockets ' the qualifying marks was 45 per cent.
Candidates who had been selected or nominated by the Government of Jammu and Kashmir or had been already selected by a selection committee constituted by the Government for any training course in or outside the State were not eligible to apply or to appear for interview for admission to this college.
The notification 1258 added: "Comparative merit of the candidates will be adjudged with respect to physical fitness, aptitude, personality, general knowledge and general intelligence in the interview, for which marks will be awarded according to the performance of the candidates".
It was further provided that the selection would be made in accordance with the manner and procedure laid down in the various orders issued by the Government from time to time.
The total number of seats filled by selection in this college for the year 1979 80 was 52.
The candidates numbered 526, out of which 473 actually appeared for interview.
In addition 10 seats were filled by candidates nominated by the Government.
It appears from the supplementary affidavit filed on behalf of the State of Jammu and Kashmir that the nominations had to be made only from two sources: wards of non resident Defence personnel, and students from other States.
Before we proceed to consider the grounds on which the selection is challenged, it will be necessary to refer to the contents of the orders issued by the Government of Jammu and Kashmir to regulate the selection.
The earliest order which is relevant in this context was made on July 9, 1973.
This concerns admission to technical institutions which include medical colleges.
The order starts by saying that "the man power requirements of various parts of the State have not received uniform and equal treatment with the result that there has been imbalance in the development of human resources in these parts", and "since the admissions to technical institutions also lead to the development of human resources", it had therefore "become necessary to provide equal opportunities to the permanent resident candidates of all parts of the State and all sections of society".
The order then lays down the following rules for admission until further orders, it is said, with the aforesaid object in view: (1) 50 per cent of the seats "should be straightaway earmarked for being filled upon the basis of open merit in accordance with the criteria to be adopted by the concerned selection committee constituted by the Government in this behalf".
(2) Of the remaining seats, 25 per cent is reserved for candidates falling under the categories specified below to the extent indicated against each, to be filled on the basis of merit in each category: (a) Scheduled castes 8% (b) Children of freedom fighters 7% (c) Children of permanent resident Defence personnel 3% 1259 (d) Candidates belonging to the following socially and educationally backward classes as recommended by the Backward Classes Committee; (i) Areas adjoining actual line of control 3% (ii) Areas known as bad pockets including Ladakh.
3% (iii) Social castes 1% It is further provided in the order that after selection as indicated in clauses (1) and (2) above had been made, the remaining 25 per cent of the seats "should be filled on the basis of inter se merit to ensure rectification of imbalance in the admissions for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".
It is added that in case there is no "visible imbalance" or where no candidates are available under a particular category mentioned in clause 2 above the seats earmarked under these two heads "shall be added to the percentage under 1 above".
The selection committee while making selections is required by the order to indicate separately the category under which a candidate falls.
There is an annexure to the order containing instructions concerning the "identifications of the persons claiming benefit" under clause 2 of the order and the "procedure connected therewith".
The instructions define the different categories mentioned in clause (2).
For the present purpose it will be necessary to refer to the definitions of "Areas adjoining actual line of control", "Bad pockets", and "Social castes". "Areas adjoining actual line of control Candidates permanently residing in any village of the State specified in Appendix I to these instructions." "Bad pockets candidates permanently residing in any village of the State specified in Appendix II to these instructions." "Social castes candidates of the State belonging to any of the castes indicated in Appendix III to these instructions.
" The instructions also provide for the issue of a certificate by the concerned authority stating that a candidate falls under any of the categories.
1260 On June 27, 1974 another order was issued refixing the percentage of seats reserved for the different categories "with a view to affording more accommodation for open merit".
The following changes were made to the earlier order: (1) Instead of 50 per cent, 60 per cent of the seats is now earmarked for admission on the basis of "open merit".
(2) Instead of 25 per cent, 20 per cent is earmarked for admission under the categories mentioned in clause 2 of the order dated July 9, 1973.
The percentage of seats allotted for children of freedom fighters is reduced from 7 per cent to 2 per cent.
Under the category "socially and educationally backward classes" the earlier order had reserved 3 per cent of the seats for candidates belonging to areas known as bad pockets including Ladakh, by this order Ladakh is excluded from that category reducing the percentage of seats from 3 per cent to 1 per cent and a separate category has been made for candidates from the Ladakh district allotting 2 per cent of the seats to them.
(3) Whereas in the earlier order 25 per cent of the seats was earmarked to ensure rectification of imbalance, here the figure is reduced to 20 per cent.
About two years later, on April 21, 1976 another order was issued reducing the existing reservation of 20 per cent for meeting regional imbalance to 18 per cent and allotting "the resultant 2% vacancies" for candidates "possessing outstanding proficiency in sports".
It is necessary to refer to two more orders.
An order made on April 16, 1976 provides that 10 seats at the Government Medical College, Jammu, shall be earmarked for girl students "subject to enough girl students being found otherwise suitable".
The order also lays down the procedure to be followed by the selection committee in selecting candidates for admission to technical training courses.
By this order, comparative performance of the candidates at an interview to be conducted for the purpose by the selection committee is made the only basis of selection.
The order adds that the marks obtained by a candidate in the qualifying university examination shall be taken into consideration only to determine the initial eligibility to compete for selection.
This order was modified by a 1261 subsequent order issued on April 3, 1978.
Instead of the marks obtained by a candidate in the qualifying university examination being treated as relevant only to determine eligibility, the subsequent order provides: "there will be 100 marks for academic merit which shall be allotted to each candidate in accordance with the percentage of marks secured by him/her in the basic qualifying examination or its equivalent".
This order further provides that 50 marks will be allotted for interview, 10 marks for each of the five factors; physical fitness, personality, aptitude, general knowledge and general intelligence.
Some of the categories mentioned in these orders have been challenged as arbitrary and unconstitutional.
We may begin with the classification made for 'rectification or regional imbalance ' for which 18 per cent of the seats is reserved.
The criticism is that the order creating this category does not identify the areas which suffer from imbalance nor does it supply any guidelines for the selection committee.
It appears that the selection committee has admitted 9 candidates under this head whose names appear at serial Nos.
43 to 51 of the list of selected candidates annexed to the supplementary affidavit filed on behalf of the first respondent, State of Jammu and Kashmir.
How exactly the selection committee understood what regional imbalance was and on what basis they accepted certain areas of the State as suffering from imbalance is not known.
The supplementary affidavit seeks to explain the category as follows: ". the State Government has found that for peculiar historical, geographical and topographical reasons there prevails an imbalance in the matter of development of the various parts of the State which has resulted in certain areas being backward as compared with the rest.
In order therefore to rectify the distortion which inevitably would otherwise creep into the selection, the State Government has reserved 18% of seats for rectification of such imbalance".
The affidavit refers to the disadvantages suffered by areas which adjoin the actual line of control and the bad pockets and states: "likewise there are other areas in the State which have received lesser attention in the past in the matter of economic development.
These areas, inter alia, are either inaccessible on account of difficult geographical terrain or suffer from difficult climatic condition.
Naturally therefore the human resources from those areas have also not developed".
It may be recalled that the notification dated June 21, 1979 by which applications were invited for admission to the medical college provided that the selection of candidates would be made in accordance with the manner and procedure laid down in the various orders issued by the Government from time to time, but none 1262 of these orders contains an explanation as the one now offered in the supplementary affidavit.
Even with this explanation the affidavit does not identify the areas of imbalance.
There was thus no objective standard to guide the selection committee.
Mr. Kacker appearing for the State of Jammu and Kashmir sought to argue that by area of imbalance what was meant was really the same thing as areas adjoining actual line of control and bad pockets.
But in all the orders issued by the Government from time to time the area of imbalance has been treated as a distinct category.
Even in the supplementary affidavit it is not claimed that the area of imbalance is only another name for the areas adjoining the actual line of control and the bad pockets, what is said is that these are similar in being equally backward.
But this does not mean that these categories are all identical and co extensive in all respects.
It will be noticed that, in spite of the similarity, even areas adjoining the actual line of control and the bad pockets have been put under different categories.
Mr. Kacker also urged that as the areas suffering from imbalance were backward areas, constituting a separate category for candidates coming from such backward areas was in accordance with the report of a committee headed by Mr. Justice Anand of Jammu and Kashmir High Court.
The Anand Committee was appointed on August 24, 1976 to examine and remove defects in the Jammu and Kashmir Scheduled Castes and Backward Classes (Reservation) Rules, 1970 and the Jammu and Kashmir Scheduled Castes and Backward Classes (Reservation of Appointment by Promotion) Rules 1970.
These rules were framed on the basis of the recommendations of a committee, called the Wazir Committee, set up in 1969 for drawing up a list of backward classes in the State.
Mr. Justice J.N. Wazir, a former Chief Justice of Jammu and Kashmir High Court, was the Chairman of this Committee.
The Wazir Committee submitted its report in November 1969 recommending several classes of citizens to be classified as backward classes.
The validity of these Rules came up for scrutiny before this Court in Janki Prasad Parimoo and others etc.
vs State of Jammu and Kashmir and others.(1) In Parimoo 's case certain defects in the 1970 Rules were pointed out and the Anand Committee was constituted, as stated already, "with a view to examine removal of defects" in the 1970 Rules.
The Anand Committee submitted its report in September 1977.
Mr. Kacker drew our attention to the fact that the report was debated on the floor of both houses of the Jammu and Kashmir legislature which resolved as 1263 follows: "The report need to be adopted by the Government as quickly as possible and rules made so that the backward classes could derive benefits quickly".
It is not necessary to examine whether the Anand Committee report identifies the areas of imbalance in the State because the selection committee was required to follow not the Anand Committee report but what was provided in the orders passed by the Government.
There is no order containing any reference to the Anand Committee report.
There is also nothing to show that the Government had adopted the report of that the selection committee proceeded on the basis of that report.
It appears from page 59 of the Anand Committee report that the Committee did not accept "social castes" as a category indicative of backwardness, but the selection committee has selected one candidate under this category which plainly shows that the selection committee was not guided by the Anand Committee report.
There can be no doubt that the selections made were not and could not be on the basis of that report.
It must therefore be held that the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance is vague and the selections made under this head are accordingly invalid.
In support of this contention that area of imbalance was only another name for bad pockets or areas adjoining actual line of control, Mr. Kacker claimed that the 9 candidates selected for 'rectification of imbalance ' all came from either bad pockets or from areas adjoining actual line of control.
The claim was questioned by the petitioners who sought to disprove it by reference to the material on record.
We do not consider it necessary to examine the individual cases here.
It may be that some of these candidates really came from areas adjoining actual line of control or bad pockets, yet they cannot be accommodated unless the percentage of seats reserved for these two categories was raised.
Another category under challenge is "social castes".
Included in this category are candidates of the State belonging to any of the castes indicated in appendix III to the instructions forming part of the order dated July 9, 1973 to which reference has already been made.
The Wazir Committee in their report mentioned 23 low social castes "as educationally and economically extremely backward" but 4 of them have been held by this Court in Parimoo 's case as having no basis for inclusion in the list.
In appendix III 19 of these castes have been retained which were not disapproved in Parimoo 's case.
Chapter XIII of the Wazir Committee report makes it clear that the classification is with reference to the nature of occupations which the people belong 1264 ing to this category pursue.
That being so we find no substance in the challenge that the classification offends Article 14 or Article 15 of the Constitution.
Under this category only one candidate has been selected whose name, Edwin Khokkar, appears at serial No. 33 in the list of selected candidates annexed to the supplementary affidavit filed on behalf of the State of Jammu and Kashmir.
An objection was raised against his selection that he being a Christian, as his name shows, could not belong to any of the castes mentioned in appendix III.
But as the category is based on occupation and not on caste as such, the objection must be overruled.
The classifications based on areas adjoining actual line of control and bad pockets are also challenged as violative of Article 14 of the Constitution.
These are really backward areas and the residents of these areas are indisputably socially and educationally backward.
Reservations made for candidates from such backward classes cannot be said to offend Article 14.
In fact in Parimoo 's case the reservation made for residents of bad pockets which were identified in the report of the Wazir Committee, was accepted as valid.
We therefore hold that the challenge to these two categories is not justified.
Apart from the challenge to some of the categories mentioned in the Government orders, the validity of interview as a test for selection has also been questioned, not only in principle but also in regard to the manner in which it was conducted.
It was contended that interviewing candidates to judge their suitability was not a reliable test as many uncertain factors were likely to affect the result of the interview.
The criticism reflects a legitimate point of view but it is a point of view only and cannot be taken as the last word on the subject.
In this connection we may refer to the observations of this Court in R. Chitralekha and another vs State of Mysore and others :(1) "In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges.
Orthodox educationists stand by the marks obtained by a student in the annual examination.
The modern trend of opinion insists upon other additional tests, such as interview, performance in extra curricular activities, personality test, psychiatric test etc.
Obviously we are not in a position to judge which method is preferable or which test is the correct one".
In A. Periakaruppan, etc.
vs State of Tamil Nadu and others(2) this Court said: "In most cases the first impression need not necessarily be the best impression.
But under the 1265 existing conditions in this country we are unable to accede to the contention of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless".
In almost all the writ petitions before us the oral test as conducted has been described as a "farce".
The criticism is based on the allegation that the time spent on each candidate was between 1 1/2 and 2 minutes within which, it was contended, one could hardly assess the suitability of the candidate on a consideration of the five factors: physical fitness, aptitude, personality, general knowledge and general intelligence, some of which are also difficult to evaluate objectively.
In an affidavit filed on behalf of the State of Jammu and Kashmir, sworn by Dr. A. H. Fazli, Professor of Pharmacology, Srinagar, who was one of the members of the selection committee, it is stated that on an average the time spent for interview was "4 minutes per candidate".
Mr. Kacker for the State of Jammu and Kashmir submitted that it was a policy decision by the Government to convert the full marks of the qualifying examinations to 100 marks and allot 50 marks for interview for the purpose selection.
He explained that the conversion was necessary because the candidates had appeared in different qualifying examinations and the total marks in the different examinations varied between 550 and 300.
It was pointed out on behalf of the writ petitioners that allotment of 50 marks for interview after reducing the total marks of the written examination, where it was 550 to 100, amounted to allotting 275 marks for interview as against 550 marks for written examination.
It was contended that this was beyond all reasonable proportion especially considering the fact that only 4 minutes were spent in evaluating a candidate 's performance in the interview.
Our attention was drawn to Periakaruppan 's case where this Court thought "earmarking 75 marks out of 275 marks for interview as interview marks prima facie appears to be excessive".
However the conclusion reached in Periakaruppan 's case on the point was: "While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview. . ".
Reserving 50 marks for interview out of a total of 150 (100 for written examination and 50 for interview) does seems excessive especially when the time spent was not more than 4 minutes on each candidate.
It is difficult to see how it is possible within this short span of time to make a fair estimate of a candidate 's suitability on a consideration of the five specified factors which are not capable of easy determination, such as physical fitness, personality aptitude, general knowledge and general intelligence.
It is also not clear how by 1266 merely looking at a candidate the selection committee could come to a conclusion about his or her physical fitness.
The fact that the allotment of marks is in accordance with a policy decision may not conclude the matter in all circumstances; if that decision is found to be arbitrary and infringing Article 14 of the Constitution, it cannot claim immunity from challenge.
When we say this we are not unmindful of the observations in Periakaruppan 's case quoted above, which were made in a somewhat similar but not altogether identical situation.
It was also contended for the writ petitioners that reserving such high marks for interview leaves room for discrimination and manipulation.
It has been held in Chitralekha 's case that the fact that a system is capable of abuse is not a ground for quashing it.
There is no reliable material before us to prove that there has been discrimination or manipulation of the interview marks in any of these cases.
That being so, and considering the possible hardship, if the selections were now set aside, to the students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed two terms, we are not inclined to annul the entire selection, though allotment of 50 marks for interview in the circumstances stated above seem to us excessive.
However, we expect the Government of Jammu and Kashmir to reconsider the matter in the light of what we have said above and, other things remaining the same, for future years to reduce the percentage of marks allotted for interview to a reasonable proportion of the total marks for the selection test.
Counsel for the petitioners in Writ Petitions 1556 57 of 1979 sought to make a point that the regulations framed by the Indian Medical Council under the do not contemplate interview as a selection device regulating admission of students.
The position is not so clear from the affidavit filed on behalf of the petitioners and in any case these regulations came into effect after the interviews were concluded in September 1979.
The selection of one candidate has been questioned on the ground that he does not fall under any of the categories mentioned in the orders.
Shri Sanjay Pathania whose name appears at serial No. 52 in the list of candidates annexed to the supplementary affidavit filed on behalf of the State of Jammu and Kashmir appears to have been selected under the category "Wards of Medical College Staff".
It was argued that this category is not based on a valid classification and infringes Article 14 of the Constitution.
It is not necessary to examine the validity of the classification for the simple reason that this is not a category mentioned in any of the orders.
That being so the selection of Shri Pathania must be set aside.
1267 Earlier in this Judgment it has been stated that following a request made by the Government of India 10 per cent of the seats in the College was reserved for students from other States on reciprocal basis.
This was a policy decision.
However, the way the policy has been worked is criticised by the writ petitioner in writ petition No. 29 of 1980, Miss Anita Jain.
Pursuant to this policy 5 students from Rajasthan and 1 from Andhra Pradesh were admitted to the Government Medical College, Jammu.
Miss Jain states that she was a candidate for admission to the Medical College, Jammu, for the session 1979 80.
On November 8, 1979 the Government of Jammu and Kashmir informed her by a letter that she had been nominated for admission to the first year M.B.B.S. course in one of the medical colleges in Madhya Pradesh.
When she went to Bhopal for admission on the basis of the said letter she was refused admission on the ground that the State of Jammu and Kashmir had not admitted nominees of the Madhya Pradesh Government and unless they were admitted she would not be admitted to any medical college in the State of Madhya Pradesh.
Her grievance is that even after she had informed the Government of Jammu and Kashmir of what had happened, the Government did not take any step to get her admitted to any medical college in the State or outside.
It does not appear from the affidavits filed by the State of Jammu and Kashmir if the candidates admitted to the Government Medical College, Jammu, from outside the State are equal in number to those from the State who have been nominated for admission to outside institutions, and on what basis the nominations, whatever the number is, have been made.
Anita Jain 's case makes it clear that the reciprocity policy, has not worked as it should have.
Miss Jain 's counsel informed us that Miss Jain 's was willing to go to any State for admission to a medical college.
Having nominated her for admission to an outside institution, we do not think the Government can avoid responsibility now.
We therefore direct the first respondent, State of Jammu and Kashmir, to find her a seat in any medical college outside the State on the basis of reciprocity, unless as a result of our Judgment a few more seats are available in the medical college at Jammu and she is entitled to one of them on merit.
For disposing of this writ petition it is not necessary to dilate on the problems that failure of the reciprocity policy in Miss Jain 's case brings to prominence.
It now remains to deal with two more individual cases, one of improper nomination and the other of unjust rejection.
In the list of nominated candidates, the name of Harish Kumar appears against serial No. 62.
Nomination, as stated earlier, was to be made from two classes of students candidates from outside the State of Jammu 1268 and Kashmir and wards of Defence personnel (non residents).
There is no dispute that Harish Kumar belongs to the State of Jammu and Kashmir and it is not claimed that he falls in the other class.
There was therefore no basis on which Harish Kumar could be validly nominated.
Mr. Kacker, counsel for the State of Jammu and Kashmir, also did not try to justify Harish Kumar 's nomination.
Harish Kumar 's admission to the medical college must therefore be set aside.
The petitioner in writ petition No. 201 of 1980 Kulbhushan Gupta obtained 104 marks out of total 150 marks.
Of the 31 candidates who were selected on open competition, the one whose name appears 25th in order of merit got 103.25 marks out of 150.
But Kulbhushan Gupta was not selected on the plea that he had been selected earlier for Regional Engineering College.
The notification dated June 21, 1979 by which applications were invited for admission to medical college, Jammu, for the year 1979 80 includes to clauses Nos. 17 and 18 which are as follow: "17.
The candidates, while applying for admission to the M.B.B.S. Course, should specifically mention in their application forms that they have not been selected/nominated by the Govt.
of J & K for any training course within or outside the J & K State.
The candidates, who have already been selected by any other selection committee constituted by the Govt.
Of J & K for any other training course within or outside the State, are not eligible to apply or to appear for interview for admission to this college.
A candidate who tries to cheat the Selection Committee on this account, will be disqualified and even if selected under false pretence will not be given admission, or if he/she has secured admission, his/her admission will stand null and void.
" It was contended that in view of these conditions Kulbhushan Gupta was not eligible for selection though no objection was raised when he appeared for interview.
That he is a student of the Regional Engineering College is not disputed, but it appears that he was not selected or nominated by the Government of Jammu and Kashmir for admission to the engineering college nor was he selected by any selection committee constituted by the Government of Jammu and Kashmir.
Clearly, therefore, the bar in clause 17 or clause 18 cannot apply to his case, and it must be held that he was improperly refused admission to the Government Medical College, Jammu.
Kulbhushan Gupta is entitled on merit to a seat in the College.
1269 The conclusions we have reached on the various issues do not warrant cancellation of the entire list of candidates admitted to the Government Medical College, Jammu, for the 1979 80 session of the M.B.B.S. course but call for a revision of the list.
We therefore direct as follows: (1) As the classification made for "rectification of regional imbalance" without identifying the areas of imbalance has been held invalid, the seats reserved under this head may be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.
Even if some of the candidates who have been selected under this category were eligible for selection as candidates from areas adjoining actual line of control or bad pockets, they cannot be accommodated unless the percentage of seats reserved for these two categories was raised.
(2) As the selection of Shri Sanjay Pathania (No. 52 in the list of selected candidates) under the category "wards of medical college staff" has been set aside, one more seat should therefore be added to the "open merit" quota and filled accordingly.
(3) The Government must find a seat for the petitioner in writ petition No. 29 of 1980.
Miss Anita Jain, who was nominated for admission to an outside institution, in any medical college outside the State unless as a result of the revision of the list of candidates admitted she finds a place in the Medical College, Jammu, on the basis of merit.
(4) The admission of Harish Kumar (No. 62 in the list of admitted candidates) has been set aside.
To complete the quota of nominated candidates another candidate in his place may be nominated if the Government so desires.
(5) The petitioner in writ petition No. 201 of 1980 Kulbhushan Gupta, it has been found, was wrongly refused admission.
He is entitled on merit to a seat.
The writ petitions therefore succeed to the extent indicated above.
In the circumstances of the cases there will be no order as to costs.
1270 We are conscious that revision of the list of selected candidates at this stage will not only cause hardship to the students who will be excluded but some of those who might get into the list now are also likely to experience certain difficulties.
We are also conscious that the late revision of the list will create problems for the authorities but that, we are afraid, cannot be helped.
We hope the authorities will deal sympathetically with the cases where it may be possible for them to render some help to the students in this situation and relax the rigour of the rules to the utmost permissible extent for the purpose.
S.R. Petitions allowed.
| IN-Abs | The selection of candidates admitted to the Government Medical College, Jammu are to be made in accordance with the manner and procedure laid down in the various orders issued by the Government of Jammu and Kashmir from time to time.
The earliest order made on July 9, 1973 concerns admission to technical institutions which include medical colleges and says that "the man power requirements of various parts of the State have not received uniform and equal treatment with the result that there has been imbalance in the development of human resources in these parts", and "since the admissions to technical institutions also lead to the development of human resources", it had, therefore, "become necessary to provide equal opportunities to the permanent resident candidates of all parts of the State and all sections of the society".
As, per this order 50% of the seats were earmarked for selection on open competition, 25% of the seats were reserved for candidates belonging to the categories specified in clause (2) of the order according to the percentage indicated against each.
It was further provided in the order that after selection, as above, the remaining 25% of the seats "should be filled on the basis of inter se merit to ensure rectification of imbalance in the admissions for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".
In case there was no "visible imbalance" or where no candidates were available under a particular category mentioned in clause (2) above the seats earmarked under these two heads "shall be added to the percentage under [clause] I above".
The annexure to the order contained instructions concerning the "identification of the persons claiming benefit" under clause 2 of the order and "the procedure connected therewith".
The instructions defined the different categories mentioned in clause (2): "Areas adjoining actual line of control Candidates permanently residing in any village of the State specified in Appendix I to these instructions".
"Bad pockets Candidates permanently residing in any village of the State specified in Appendix II to these instructions". "Social Castes Candidates of the State belonging to any of the castes indicated in Appendix III to these instructions".
The instructions also provided for the issue of a certificate by the concerned authority stating that a candidate fell under any of the categories.
1254 On June 27, 1974 another order was issued refixing the percentage of seats reserved for the different categories "with a view to affording more accommodation for open merit".
Open merit percentage was increased to 60, by reducing by 5% the percentage of seats allotted for children of freedom fighters and by reducing the percentage of seats of 25% earmarked to ensure "rectification of imbalance" from 25% to 20%.
3% of seats reserved for candidates from areas known as bad pockets which included Ladakh under the category "socially and educationally backward classes" was reduced to 1% and the resultant difference of 2% was earmarked to candidates from Ladakh which was excluded from the above category.
By another order dated April 21, 1976, the existing reservation of 20% for meeting regional imbalance was reduced to 18% and the "resultant 2% vacancies earmarked for candidates possessing, outstanding proficiency in sports".
An order made on April 16, 1976 earmarked 10 seats at the Government Medical College, Jammu, for girl students "subject to enough girl students being found otherwise suitable".
The order also laid down the procedure to be followed by the selection committee in selecting candidates for admission to technical training course.
By this order, comparative performance of the candidates at an interview to be conducted for the purpose by the selection committee was made the only basis of selection.
The order added that the marks obtained by a candidate in the qualifying university examination should be taken into consideration only to determine the initial eligibility to compete for selection.
This order was modified by a subsequent order issued on April 3, 1978.
Instead of the marks obtained by a candidate in the qualifying university examination being treated as relevant only to determine eligibility, the subsequent order provided: "there will be 100 marks for academic merit which shall be allotted to each candidate in accordance with the percentage of marks secured by him/her in the basic qualifying examination or its equivalent".
This order further provided that 50 marks would be allotted for interview, 10 marks for each of the five factors: physical, fitness, personality, aptitude general knowledge and general intelligence.
By notification published in the Jammu and Kashmir Government Gazette on June 21, 1979 applications were invited for admission to the M.B.B.S. course in the aforesaid college.
Only those candidates who had passed the Pre Medical or Inter Science or First Year T.D.C. (Medical Group) examination from the University of Jammu or any other equivalent examination and had secured not less than 50 per cent marks in science subjects in aggregate (theory and practical) were eligible to apply for admission; however, for scheduled castes, scheduled tribes Bakarwal and Gujjar candidates and candidates from Ladakh district and 'Bad pockets ' the qualifying marks was 45 per cent.
Candidates who had been selected or nominated by the Government of Jammu and Kashmir or had been already selected by a selection committee constituted by the Government for any training course in or outside the State were not eligible to apply or to appear for interview for admission to this college.
The notification added: "Comparative merit of the candidates will be adjudged with respect to physical fitness, aptitude personality, general knowledge and general intelligence in the interview, for which marks will be awarded according to the performance of the candidates".
It was further provided that the selection would be made in accordance with the manner and procedure laid down in the various orders issued by the Government from time to time.
The total number of seats filled by selection in this college for the year 1979 80 was 52.
The candidates numbered 526, out of which 473 actually appeared for interview.
In addition 10 1255 seats were filled by candidates nominated by the Government.
The nomination had to be made only from two sources: wards of non resident Defence personnel, and students from other states.
The petitioners challenged the selection of candidates admitted to the Government Medical College, Jammu for the academic year 1979 80 as bad and that the categories mentioned in the several orders as arbitrary and unconstitutional.
^ HELD: 1.
The classification made for rectification of regional imbalance is vague and the selections (serial Nos.
43 to 51 to the List) made under this head are invalid for the following reasons: [1263 C D,] (i) The notification dated June 21, 1979 by which applications were invited for admission to the medical college provided that the selection of candidates would be made in accordance with the manner and procedure laid down in the various orders issued by the Government from time to time, but none of these orders contains an explanation offered in the supplementary affidavit filed by the State of Jammu & Kashmir that: ". the State Government has found that for peculiar historical, geographical and topographical reasons there prevails an imbalance in the matter of development of the various parts of the State which has resulted in certain areas being backward as compared with the rest.
In order therefore to rectify the distinction which inevitably would otherwise creep in to the selection, the State Government has reserved 18% of seats for rectification of such imbalance".
Even with this explanation, the affidavit, does not identify the area of imbalance.
There was thus no objective standard to guide the selection committee.
[1261 E H, 1262 A] (ii) Even in the supplementary affidavit it is not claimed that the area of imbalance is only another name for the areas adjoining the actual line of control and the had pockets, as contended on behalf of the State.
What is said in the affidavit is that the areas of imbalance are similar to the aforesaid areas in being equally backward.
But this does not mean that these categories are all identical and co extensive in all respects.
Further in spite of similarity, even areas adjoining the actual line of control and the bad pockets have been put under different categories; and [1262 B ] (iii) The contention was that the classification was justified on the report of the Anand Committee.
The Selection Committee was required to follow not the Anand Committee report but what was provided in the orders passed by the Government.
There is no order containing any reference to the Anand Committee Report.
Neither the Government adopted the Anand Committee 's report nor did the Selection Committee proceeded on the basis of that report.
Though the Anand Committee did not accept "social castes" as a category indicative of backwardness, the Selection Committee has selected one candidate under this category which clearly shows that the Selection Committee was not guided by the Anand Committee Report, the selection made was not and could not be on the basis of that report.
[1263 A C] 2.
In Janki Prasad Parimoo and Ors.
vs State of Jammu and Kashmir and Ors., [1973] 3 SCR p. 236, the Supreme Court did not approve 4 out of 23 "low social castes" mentioned in the Wazir Committee Report "as educationally and economically extremely backward", as having no basis for inclu 1256 sion in the List.
In Appendix III, 19 of these castes have been retained which were not disapproved in Parimoo 's case.
Chapter XIII of the Wazir Committee report makes it clear that the classification is with reference to the nature of occupations which the people belonging to this category pursue.
That being so, the classification does not offend Article 14 or Article 15 of the Constitution.
The selection of Edwin Khakkar, a Christian is in order since he falls under one such category listed and since the category is based on occupation and not on caste as such.
[1263 G H, 1264 A B] 3.
The areas adjoining actual line of control and bad pockets are really backward areas and the residents of these areas are indisputably socially and educationally backward.
Reservations made for such candidates from such backward classes cannot be said to offend Article 14 of the Constitution.
[1264C D] Janaki Prasad Parimoo and Ors. etc.
vs State of Jammu & Kashmir and Ors., [1973]3 SCR p. 236; followed.
Though the contention that "interviewing candidates to judge their suitability was not a reliable test as many uncertain factors were likely to affect the result of the interview" reflects a legitimate point of view, but it is a point of view only and cannot be taken as the last word on the subject.
However, it is impossible within allotted span of time (4 minutes) to make a fair estimate of a candidate 's suitability on a consideration of the five specified factors which are not capable of easy determination such as physical fitness, personality, aptitude, general knowledge and general intelligence.
By merely looking at a candidate, the selection committee could not come to a conclusion about one 's physical fitness.
Therefore, the fact that the allotment of marks is in accordance with a policy decision may not conclude the matter in all circumstances; if that decision is found to be arbitrary and infringing Article 14 of the Constitution it cannot claim immunity from challenge.
[1264 E H, 1265 G H, 1266 A] R. Chitralekha and anr.
vs State of Mysore and Ors. ; ; A Peeriakaruppan etc.
vs State of Tamil Nadu and Ors., [1971] 2 SCR 430; distinguished and held inapplicable to the facts of the instant case.
The selection under the category "wards of Medical College Staff" is invalid as such a category does not find place in any of the orders.
[1266 G H] 6.
Reservation for students from other states on reciprocal basis, as seen from Anita Jain 's case has not worked in practice and she is entitled to a seat.
Nor did the two clauses 17 and 18 of the notification dated June 21, 1979 apply to Kulbhushan Gupta since he was not selected or nominated by the Government of Jammu and Kashmir for admission to the Engineering College nor was he selected by any selection committee constituted by the Government of Jammu and Kashmir.
[1267 E H, 1268 G H]
|
Civil Appeal No. 1933 of 1979.
Appeal by Special Leave from the Judgment and Order dated the 20th July, 1979 of the Delhi High Court in F.A.O. (OS) No. 86 of 1979.
A. K. Sen, P. P. Rao, N. D. Garg, R. Venkataramani and section K. Bisaria for the Appellant.
K. K. Venugopal, H. K. Puri and section C. Dhanda for the Respondent.
The following Judgments were delivered TULZAPURKAR, J.
This appeal at the instance of the appellant company (original plaintiff) is directed against an interlocutory order passed by the High Court in F.A.O. (O.S.) 86 of 1979 refusing to grant temporary injunction in a suit which is still pending.
Principally it raises two substantial questions: (a) whether a post service restrictive covenant in restraint of trade as contained in cl.
(10) of the service agreement between the parties is void under section 27 of the Indian Contract Act ? and (b) whether the said restrictive covenant, assuming it to be valid, is on its terms enforceable at the instance of the appellant company against the respondent ? On March 21, 1980 we dismissed the appeal at the conclusion of the hearing and it was stated that our reasons will follow.
We now proceed to give our reasons for the dismissal.
Briefly stated the facts are these.
The appellant company carries on business as valuers and surveyors, undertaking inspection of quality, weighment, analysis, sampling of merchandise and commodities, cargoes, industrial products, machinery, textiles, etc.
It has estabilshed a reputation and goodwill in its business by developing its own techniques for quality testing and control and possesses trade secrets in the form of these techniques and clientele.
It has its head office at Calcutta and a branch at New Delhi and employs various persons as managers and in other capacities in Calcutta, New Delhi and other places.
On March 27, 1971 the respondent was employed by the appellant company as the Branch Manager of its New Delhi office on terms and conditions contained in the letter of appointment issued to him on the same date.
Clause (10) of the terms and conditions of employment placed the respondent under a post service restraint that he shall not serve any other competitive firm nor carry on business on his own in similar line as that of the appellant company for two years at the place of his last posting.
Since it is vital we set out the said clause which ran thus: "10.
That you will not be permitted to join any firm of our competitors or run a business of your own in similar 1283 lines directly and/or indirectly, for a period of two years at the place of your last posting after you leave the company.
" On November 24, 1978 the appellant company terminated the respondent 's services with effect from December 27, 1978.
Thereafter the respondent started his own business under the name and style of "Superintendence and Surveillance Inspectorate of India" at B 22, South Extension, New Delhi on lines identical with or substantially similar to that of the appellant company.
On April 19, 1979 the appellant company brought a suit in the Delhi High Court on its Original Side claiming Rs. 55,000/ as damages on account of the breach of the aforesaid negative covenant contained in cl.
(10) and for permanent injunction restraining the respondent by himself, his servants, agents or otherwise, from carrying on the said business or any other business on lines similar to that of the appellant company or associating or representing any competitors of the appellant company before the expiry of two years from December 27, 1978.
After filing the suit the appellant company sought an interim injunction by way of enforcing the aforesaid negative covenant and a Single Judge of the Delhi High Court initially granted an ad interim injunction on April 29, 1979 which was confirmed by him on May 25, 1979 after hearing the respondent.
The learned Single Judge took the view that the negative covenant, being in partial restraint of trade, was reasonable inasmuch as it was limited both in point of time (two years) as well as the area of operation (New Delhi which was his last posting) and, therefore, was not hit by section 27 of the Contract Act.
He also took the view that the negative covenant was enforceable as the expression "leave" in cl.
(10) was not confined to voluntarily leaving of the service by the respondent but was wide enough to include termination of his services by the appellant company.
On appeal by the respondent, a Division Bench of the High Court reversed the order of the learned Single Judge on both the points and that is how the two questions indicated at the commencement of this judgment arise for our determination in this appeal.
Since in our view the appeal is capable of being disposed of on the second point we think it unnecessary to decide or express our opinion on the first question which was hotly and ably debated at the bar by counsel on either side but we will indicate briefly the rival lines on which the arguments proceeded.
On the one hand counsel for the respondent tried to support the view of the Division Bench by pointing out that in India the law on the subject was codified by statute which was exhaustive and on the topic of agreements in restraint of trade and exceptions in that behalf the Indian Courts cannot invoke or derive 1284 assistance from the English Common Law and the exceptions developed thereto by English decisions from time to time, that section 27 of the Indian Contract Act was absolute in terms in that it did not make any distinction between partial or general restraints and that unless a case was covered by the Exception provided thereunder every restraint of trade, whether partial or general would be void under that section.
In this behalf reliance was placed on a number of decisions of various High Courts commencing from the celebrated decision of Sir Richard Couch, C.J. in Madhub Chunder vs Rajcoomar Doss(1) where section 27 was interpreted in the aforesaid manner.
Counsel urged that a distinction between a negative covenant operative during the period of employment and one that is operative during post service period has been well recognised and that all post service restrictive covenants were prima facie void, that the only exceptions were those given in the statute and that the exceptions developed by the English case law could not be invoked here.
According to him the test of reasonableness had been wrongly adopted by the learned Single Judge.
He pointed out that accepting the interpretation placed on section 27 by High Courts even the Law Commission has recommended a change in that by suitable legislation.
He further pointed out that the Division Bench has gone a step further and after considering whether the instant case would fall within those exceptions developed by English case Law has come to a negative conclusion against the appellant company.
On the other hand counsel for the appellant company contended that the interpretation of section 27 as given by various High Courts including Sir Richard Couch 's decision in Madhub Chunder 's case (supra) has not been so far considered by this Court and it requires to be examined and considered by this Court especially in view of certain observations made by this Court in Niranjan Shankar Golikari 's (2) case which warrant such reconsideration.
Though it was a case dealing with negative covenant that was operative during the employment period counsel pointed out that entire case law Indian as well as English was discussed and this Court at page 389 of the report observed thus: "The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract." 1285 Tulzapurkar, J.) According to counsel the very fact that this Court has observed that considerations qua post service restrictions are different from those that are to be considered in cases of restrictions during the employment suggests that perhaps a rigorous test of reasonableness may have to be adopted in the former cases but there would be cases where post service restrictions, if reasonable, even after applying the rigorous tests may be valid as not falling under section 27 of the Act, it was, therefore, not correct to say that all post service restrictions were void.
His precise contention was that even a post service restrictive covenant, if it was reasonable, qualified or limited in operation both in point of time and area, as was the case here, does not amount to any restraint of trade at all within the meaning of section 27 and such restrictive covenant could be justified as being necessary and essential to protect the employer 's interests, his trade secrets and his trade connections and, therefore, valid.
As regards the argument based on codified exception, counsel pointed out, that even the case of a restrictive covenant operative during the period of employment between master and servant had not been provided for as an exception below section 27 but even so such restrictive covenant was never regarded as amounting to restraint of trade under section 27 mainly because it was always regarded as reasonable and necessary to protect the employer 's interests, which shows that the statutory exceptions were not exhaustive.
Lastly, counsel urged that the Law Commission 's recommendation on which reliance was placed by respondent 's counsel would be inconsequential because it proceeds on the acceptance of the interpretation placed on section 27 by various High Courts and he is seeking to get that interpretation examined and considered by this Court.
However, as we have said above, we do not propose to discuss or decide the aforesaid question inasmuch as this appeal can be disposed of by deciding the second question that has been raised before us and for that purpose we shall proceed on the assumption that the negative covenant contained in cl.
(10) of the service agreement is valid and not hit by section 27 of the Contract Act.
The question is whether the said restrictive covenant is on its terms enforceable against the respondent at the instance of the appellant company.
We have already quoted the restrictive covenant contained in cl.
In terms the clause provides that the restriction contained therein will come into operation "after you (respondent) leave the company".
Admittedly in the instant case the respondent had not on his own left the company but his services were terminated by the appellant company by a notice dated November 24, 1978 with effect from December 27, 1978.
The question is whether the phrase "after you 1286 leave the company" means the leaving of service by the respondent voluntarily or would include even the case of termination of his services by the appellant company.
The Division Bench of the High Court has taken the view that the word "leave" does not include termination of service by the employer.
Counsel for the appellant company contended that the word "leave" occurring in the phrase "after you leave the company" would be wide enough to include all cases of cessation of service whether brought about by voluntary quitting on the part of the employee or termination of his services by the employer and in that behalf reliance was placed upon an English decision in Murray vs Clese where it was held that an agreement restricting competition with an employer "after leaving his service" would be operative on the termination, however accomplished, of the service, e.g. by a dismissal without notice.
(vide: Stroud 's Judicial Dictionary, 4th Edn., Vol. 3, page 1508, Item 13, under the word 'leaving ').
In our view, the word "leave" has various shades of meaning depending upon the context or intent with which it is used.
According to the plain grammatical meaning that word in relation to an employee would normally be construed as meaning voluntary leaving of the service by him and would not include a case where he is discharged or dismissed or his services are terminated by his employer.
Ordinarily the word "leave" appears to connote voluntary action.
In Words & Phrases Permanent Edition Vol.
24 at page 499 the following statement of law based on an American decision occurs: "An application for the employment of a street car conductor provided that in the event of his leaving the services for any reasons whatever within six months, the money paid to him for work under instruction while on trial should be deducted from such moneys as should be due from the company on the date of his "leaving".
Held, that the word "leaving" meant to quit or depart, implying volition on the part of the person leaving, and limited the forfeiture of the instruction wages to a case where plaintiff left defendant 's employ of his own volition, nor was such instruction effected by the words, "for any reason whatsoever." Muesling vs International Ry.
Co., , 178, 85 Misc.
In our view having regard to the context in which the expression "leave" occurs in cl.
(10) of the service agreement and reading it alongwith all the other terms of employment it seems to us clear that in the instant case the word "leave" was intended by the parties to refer only to a case where the employee has voluntarily left the services 1287 of the appellant company of his own, and since here the respondent 's services were terminated by the appellant company the restrictive covenant contained in cl.
(10) would be inapplicable and, therefore, not enforceable against the respondent at the instance of the appellant company.
Counsel for the appellant company urged that our construction would lead to putting a premium upon an dishonest employee who by his own misdemeanour and misbehaviour may invite termination of his services.
All that we can say is that the appellant company should have taken care to use appropriate language while incorporating such restrictive covenant so as to include every case of cessation of employment arising from any reason whatsoever and not used the expression "leave," which normally is synonymous to the expression "quit" and indicates voluntary act on the part of the employee.
In the result the appeal is dismissed with no order as to costs.
SEN, J.
I regret that my learned brethren propose to express no opinion on the question on which, in my view, the appeal turns.
The question is whether a negative covenant which restricts the right of the employee, after the conclusion of the term of service, or the termination of the employment for other reasons, to engage in any business similar to or competitive with that of the employer, is in restraint of trade and, therefore, void under section 27 of the Contract Act, 1972.
I have no doubt in my mind that the appeal cannot be decided without deciding this question.
This appeal on certificate from a judgment of the Delhi High court, relates to a covenant in restraint of trade contained in an agreement between the appellant company and the respondent in circumstances which we will explain.
The appellant company carries on the business of valuer, surveyor, inspection of quality, weighment, analysis, sampling of merchandise and commodities, cargoes, industrial products, machinery, textiles, etc.
It has its head office at Calcutta with a branch at New Delhi.
On or about March 27,1971, the respondent who is a surveyor and valuer was employed by the appellant as the Branch Manager of its New Delhi office.
One of the terms and conditions of the employment was that the respondent would not serve elsewhere or enter into any business for a period of 2 years after leaving the service.
The term is contained in clause 10 of the agreement which reads: 10.
That you will not be permitted to join any firm of our competitors or run a business of your own in similarity as directly and/or indirectly, for a period of two years at the 1288 place of your last posting after you leave the Company.
The appellant terminated the services of the respondent by its letter dated December 27, 1978.
Thereafter the respondent started a business of his own under the name and style of "Superintendence and Surveillance Inspectorate of India" at E 22, South Extension, New Delhi on lines identical with and substantially similar to that of the appellant.
On April 19, 1979, the appellant commenced a suit in the Delhi High Court in its original side claiming Rs. 55,000/ as damages on account of breach of the covenant and for permanent injunction to restrain the respondent by himself, his servants or agents or otherwise from carrying on the said business or any other business on lines similar to that of the appellant or associating or representing any Competitors of the appellant before the expiry of two years from December 27, 1978.
A Single Judge of the Delhi High Court adopting the test of reasonableness, held that under section 27 of the Contract Act to determine whether the agreement is void, one has to see whether the restraint is reasonable; and if so the negative covenant can be enforced as enjoined by illustrations (c) and (d) to section 57 of the specific Relief Act, 1963.
He held that Clause 10 of the agreement is not unreasonable, because the area of restraint is restricted to New Delhi, the place of last posting of the respondent and is not unlimited, being limited to a period of two years from the date he left the service.
He went on to say that negative covenant in a contract of employment has always been enforced, if it is in the protection of the employer, and referred to Niranjan Shankar Golikari vs Century Spinning and Mfg. Co. Ltd. [1967] 2 S.C.R. p. 378.
He further held that the negative covenant was operative as the word "leave" in clause 10 was wide enough to include termination of service.
He, accordingly, by his order dated May 25, 1979, made the earlier ex parte ad interim injunction granted by him on April 24, 1979 absolute but restricted its operation to New Delhi and for the period ending 27th December, 1980 or till the decision of suit, whichever is earlier.
On appeal by the respondent, a Division Bench of the High Court reversed the order of the learned Single Judge holding that negative covenant operating beyond the period of employment was in restraint of trade and, therefore, void under section 27 of the Contract Act.
1289 Four questions arise in this appeal: 1.
Whether Clause 10 of the agreement was in restraint of trade; and if so, being partial was valid and enforceable being reasonable?; 2.
Whether according to the test of reasonableness laid down by Lord Macnaghten in Nordenfelt vs Hakim Nordenfelt Guns & Ammunition Co. Ltd.,(1) an injunction to enforce the negative covenent can be granted under illustrations (c) and (d) to section 57 of the , despite section 27 of the Contract Act, 1872 ? 3.
Whether, and to what extent, the provisions of Section 27 of the Contract Act are subject to the common law doctrine of restraint of trade ? 4.
Whether the word "leave" in Clause 10 of the agreement between the parties makes the negative covenant operative only when a servant voluntarily leaves his employment, or, applies even in a case of termination of his services by an order of dismissal or termination of his services? Agreements of service, containing a negative covenant preventing the employee from working elsewhere during the term covered by the agreement, are not void under section 27 of the Contract Act, on the ground that they are in restraint of trade.
Such agreements are enforceable.
The reason is obvious.
The doctrine of restraint of trade never applies during the continuance of a contract of employment; it applies only when the contract comes to an end.
While during the period of employment, the Courts undoubtedly would not grant any specific performance of a contract of personal service, nevertheless; Section 57 of the clearly provides for the grant of an injunction to restrain the breach of such a covenant as it is not in restraint of, but in furtherance of trade.
In Niranjan Shankar Golikari 's case, supra, this Court drew a distinction between a restriction in a contract of employment which is operative during the period of employment and one which is to operate after the termination of employment.
After referring to certain English cases where such distinction had been drawn, the Court observed: "A similar distinction has also been drawn by the Courts in India and a restraint by which a person binds himself during the term of his agreement directly or indirectly not to take service with any other employer or be engaged by a third party has been held not to be void and not against section 27 of the Contract Act." 1290 It referred to with approval the decision in The Brahmaputra Tea Co. Ltd. vs Scarth, I.L.R. , where the condition under which the covenantee was partially restrained from competing after the term of his engagement with his former employer, was held to be bad but the condition by which he bound himself during the term of his agreement, not, directly or indirectly, to compete with his employer was held good, and observed: "At page 550 of the report the Court observed that an agreement of service by which a person binds himself during the term of the agreement not to take service with any one else, or directly, or indirectly take part in, promote or did any business in direct competition with that of his employer was not hit by section 27." The Court further observed: "An agreement to serve a person exclusively for a definite term is a lawful agreement, and it is difficult to see how that can be unlawful which is essential to its fulfillment, and to the due protection of the interests of the employer, while the agreement is in force." The Court also approved of the several Indian decisions where an agreement of service contained both a positive covenant viz. that the employee shall devote his whole time attention to the service of the employers and also a negative covenant preventing the employee from working elsewhere during the term of the agreement, and the High Courts have enforced such a negative covenant during the term of employment having regard to illustrations (c) and (d) to section 57 of the which, in terms, recognised such contracts and the existence of negative covenants therein, and stated that the contention that the existence of such a negative covenant in a service agreement made the agreement void on the ground that it was in restraint of trade and contrary to section 27 of the Contract Act had no validity.
In conclusion, the Court observed: "The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract.
Negative 1291 covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under section 27 of the Contract Act.
A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one sided." (Emphasis supplied) The decision in Niranjan Shankar Golikari 's case supra is therefore of little assistance to the appellant.
It is not seeking to enforce the negative covenant during the term of employment of the respondent but after the termination of his services.
The restriction contained in Clause 10 of the agreement is obviously in restraint of trade and, therefore, illegal and unenforceable under section 27 of the Contract Act.
In support of the appeal, learned counsel for the appellant has, in substance, advanced a two fold contention.
It is submitted, firstly, upon the common law doctrine of restraint of trade that though the covenant is in restraint of trade, it satisfies the 'test of reasonableness ', as laid down by Lord Macnaghten in Nordenfelt vs Maxim Nordenfelt Guns & Ammunition Co. Ltd., supra, and is, therefore, enforceable despite section 27 of the Contract Act, 1872, and, secondly, that the word "leave" in Clause 10 of the agreement is wide enough to make the covenant operative even on the termination of employment i.e. it includes the case of dismissal.
I am afraid, the contentions are wholly devoid of substance.
While the Contract Act, 1872, does not profess to be a complete code dealing with the law relating to contracts, we emphasise that to the extent the Act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English Law de hors the statutory provision, unless the statute is such that it cannot be understood without the aid of the English Law.
The provisions of Section 27 of the Act were lifted from Hom.
David D. Field 's Draft Code for New York based upon the old English doctrine of restraint of trade, as prevailing in ancient times.
When a rule of English law receives statutory recognition by the Indian Legislature, it is the language of the Act which determines the scope, uninfluenced by the manner in which the anologous provision comes to be construed narrowly, or, otherwise modified, in order to bring the construction 1292 within the scope and limitations of the rule governing the English doctrine of restraint of trade.
It has often been pointed out by the Privy Council and this Court that where there is positive enactment of Indian Legislature the proper course is to examine the language of the statute and to ascertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or the English law upon which it may be founded.
In Satyavrata Ghosh vs Kurmee Ram Bangor, ; , Mukherjee J. while dealing with the doctrine of frustration of contract observed that the Courts in India are to be strictly governed by the provisions of Section 56 of the Contract Act and not to be influenced by the prevailing concepts of the English Law, as it has passed through various stages of development since the enactment of the Contract Act and the principles enunciated in the various decided cases are not easy to reconcile.
What he says of the doctrine of frustration under section 56 of the Contract Act is equally true of the doctrine of restraint of trade under section 27 of the Act.
Now, so far as the present case is concerned, the law is to be found in section 27 of the Contract Act 1872, which reads: "27.
Agreement in restraint of trade void Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind is to that extent void.
Exception: One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer or any other person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business.
" The section is general in terms, and declares all agreements in restraint void pro tanto, except in the case specified in the exception.
The question whether an agreement is void under section 27 must be decided upon the wording of that section.
There is nothing in the wording of section 27 to suggest that the principle stated therein does not apply when the restraint is for a limited period only or is confined to a particular area.
Such matters of partial restriction have effect only when the fact fall within the exception to the section.
A contract, which has for its object a restraint of trade, is prima facie, void.
Section 27 of the Contract Act is general in terms and 1293 unless a particular contract can be distinctly brought within Exception 1 there is no escape from the prohibition.
We have nothing to do with the policy of such a law.
All we have to do is to take the words of the Contract Act and put upon the meaning which they appear plainly to bear.
This view of the section was expressed by Sir Richard Couch C.J. in celebrated judgment in Madhub Chunder vs Rajcoomar Doss at pp.
85 86 laying down that whether the restraint was general or partial, unqualified or qualified, if it was in the nature of a restraint of trade, it was void.
The observations of Sir Richard Couch, C.J., in Madhub Chunder vs Rajcoomar Doss, supra, which have become the locus classicus were these: "The words 'restraint from exercising a lawful profession, trade or business ' do not mean an absolute restriction, and are intended to apply to a partial restriction, a restriction limited to some particular place, otherwise the first exception would have been unnecessary.
" Moreover, "in the following section (section 28) the legislative authority when it intends to speak of an absolute restraint and not a partial one, has introduced the word 'absolutely '.
The use of this word in section 28 supports the view that in section 27 it was intended to prevent not merely a total restraint from carrying on trade or business but a partial one.
We have nothing to do with the policy of such a law.
All we have to do is to take the words of the Contract Act, and put upon them the meaning which they appear plainly to bear.
" The test laid down by Sir Richard Couch, C.J. in Madhub Chunder vs Rajcoomar Doss, supra, has stood the test of time and has invariably been followed by all the High Courts in India.
The agreement in question is not a 'goodwill of business ' type of contract and, therefore, does not fall within the exception.
If the agreement on the part of the respondent puts a restraint even though partial, it was void, and, therefore, the contract must be treated as one which cannot be enforced.
It is, however, argued that the test of the validity of a restraint, whether general or partial, is dependent on its reasonableness.
It is pointed out that the distinction drawn by Lord Macclesfield in Mitchel vs Reynolds (1711) 1 PMas 161 between general and partial restraint, was removed by the House of Lords in Nordenfelt vs Maxim Nordenfelt Guns and Ammunition Co. (supra).
According to the judgment of 1294 Lord Macnaghten in Nordenfelt 's case, the validity in either case was reasonableness with reference to particular circumstances.
It is urged that all covenants in restraint of trade partial as well as general are prima facie void and they cannot be enforced, according to the test laid down by Lord Macnaghten in Nordenfelt 's case and accepted by the House of Lords in Mason vs Provident Clothing and Supply Co. Ltd., , unless the test of reasonableness is testified.
It is also urged that while an employer is not entitled to protect himself against competition per se on the part of an employee after the employment has ceased, he is entitled to protection of his proprietory interest viz. his trade secrets, if any, and a business connection.
The test of reasonableness which now governs the common law doctrine of restraint of trade has been stated in Chitty on Contracts, 23rd Edn., Vol.
I. p. 867: "While all restraint of trade to which the doctrine applied are prima facie unenforceable, all, whether partial or total, are enforceable, if reasonable." A contract in restraint of trade is one by which a party restricts his future liberty to carry on his trade, business or profession in such manner and with such persons as he chooses.
A contract of this class is prima facie void, but is becomes binding upon proof that the restriction is justifiable in the circumstances as being reasonable from the point of view of the parties themselves and also of the community.
In Elizabethan days, all agreements in restraint of trade, whether general or restrictive to a particular area, were held to be bad; but a distinction came to be taken between covenant in general restraint of trade, and those where the restraints were only partial.
According to the test laid down by Parker, C.J. (later Earl of Macclesfield) in Mitchel vs Reynolds, supra, the general restraint was one which covered an indefinite area, and was, as a rule held bad while a partial restraint was valid if reasonable, the onus being upon the covenanter to show it to be unreasonable.
There is no higher authority upon this subject than Tindal, C.J., who had to do much with moulding of the law on this subject and bringing it into harmony with the needs of the changing times.
In Mornen vs Graves ; , Tindal, C.J. said: "The law upon this subject (i.e. restraint of trade) has been laid down with so much authority and precision by Parker, C.J., in giving the judgment of the Court of B.R. (King 's Bench) in the case of Mitchel vs Reynolds which has been the leading case on the subject from that time to 1295 the present, that little more remains than to apply the principle of that case to the present.
Now the rule laid down by the court in that case is 'that voluntary restraints, by agreement between the parties, if they amount to a general restraint of trading by either party, are void, whether with or without consideration, but particular restraints of trading, if made upon a good and adequate consideration, so as to be a proper and useful contract, that is, so as it is a reasonable restraint only, are good.
" Later on he goes on to observe: "Parker, C.J., says,: a restraint to carry on a trade throughout the kingdom must be void; a restraint to carry it on within a particular place is good, which are rather instances and examples than limits of the application of the rule, which can only be at least what is a reasonable restraint with reference to the particular cases.
" By decrees, the common law doctrine of restraint of trade, has been progressively expanded and the legal principles applied and developed so as to suit the exigencies of the times, with the growth of trade and commerce, rapid industrialisation and improved means of communication.
In Nordenfelt vs Maxim Nordenfelt Guns & Ammunition Co. Ltd., (supra), Lord Macnaghton held that the only true test in all cases, whether of partial or general restraint, was the test proposed by Tindal, C.J.: What is a reasonable restraint with reference to a particular case ? Thereby he denied that general and partial restraints fall into distinct categories.
A partial restraint in his opinion was not prima facie valid.
It was on the same footing as a general restraint i.e. prima facie void, but valid, if reasonable.
In Mason vs Provident Clothing and Supply Co. Ltd., supra, the House of Lords held that Lord Macnaghton 's proposition was a correct statement of the modern law.
The House of Lords in this case developed the law in two respects: First, it held that all covenants in restraint of trade, partial as well as general, prima facie void and that they cannot be enforced unless the test of reasonableness as propounded by Lord Macnaghton is satisfied.
Secondly, it made a sharp distinction, stressed as long ago as 1869 by James, L.J., in Leather Cloth Co. vs Lorsont ; , between contracts of service and contracts for the sale of a business.
In Herbert Morris Ltd. vs Saxelby, supra, the House of Lords held that a master cannot protect himself from competition by an ex servant 1296 or his new employer.
He cannot stipulate freedom from competition.
But he can protect his trade secrets or his confidential information.
The 'test of reasonableness ' evolved in common law after the decision of Lord Macnaghton, in Nordenfelt 's case, supra, and re affirmed by the two decisions in Mason vs Provident Clothing & Supply Co. Ltd. and Herbert Morris Ltd. vs Sexelby, supra, is that such covenants are prima facie, void and the onus rests upon the covenante to prove that the restraint is reasonable.
In Nordenfelt 's case, Lord Macnaghton also adverted to the distinction between covenant entered by the seller of the business on the one hand and the covenant by the employee on the other.
Framers of section 833 of Field 's Draft Code for New York designed some hundred and twenty five years ago, expressed the intention to replace the common law stating that "contracts in restraint of trade have been allowed by modern decisions to a very dangerous extent", and they proceeded to draft the provision with the deliberate intention of narrowing the law.
The provision was never applied to New York, but found its way into the Contract Act, 1872 as section 27.
Several sections of the Field 's Code were enacted in the Act.
The Code was anathema to Sir Frederick Pollock who in his preface to Pollock and Mulla 's Indian Contract Act, p. 5, described the Code as the evil genius of the Act, the worst principles of codification ever produced, and advocated that 'whenever the Act was revised every thing taken from the Code should be struck out '.
It must be remembered that the test of reasonableness comes from the judgment of Lord Macnaghten in Nordenfelt 's case in the House of Lords in 1894.
In 1862, however, when the Field provision was drafted, it was not easy to foresee that the common law would shortly discard the distinction drawn by Lord Macclesfield in Mitchel vs Reynolds in 1711, between general and partial restraints.
A general restraint was one which covered an indefinite area, and was, as a rule, held bad, while a partial restraint was valid, if reasonable.
the onus being upon the covenantor to show it to be unreasonable.
This was a mere rule of thumb, but was stubbornly adhered to by as great a common lawyer as Bowen, L.J., as late as 1893, when the Nordenfelt 's case was in the Court of Appeals: Be that as it may, in Field 's draft, as early as 1862, are clearly expressed two principles that govern the modern common law today, but were unknown to it at that stage, and were not unequivocally stated until 1916, first that restrictive covenants are prima facie invalid, and secondly between master and servant covenants on the one hand and vendor and purchaser covenants on the other, there is a great gulf 1297 fixed.
The onus of proving reasonableness under Exception 1, was placed on the covenantee, while the common law at the time placed it upon the covenanter to show unreasonableness.
Sir Frederick Pollock 's criticism of the substantive part of section 27 was that it laid down too rigid a rule of invalidity, not merely for general but also for partial restraints, and of the exceptions that they were too narrow, being based upon an idea of the common law, now outmoded, that a restraint must be confined within local limits.
His views on the main body of the section may be illustrated by two quotations: "The law of India. is tied down by the language of the section to the principle, now exploded in England, of a hard and fast rule qualified by strictly limited exceptions. " "To escape the prohibition, it is not enough to show that the restraint created by an agreement is partial, and general." Two passages from his comments on Exception 1 may also be cited: "The extension of modern commerce and means of communication has displaced the old doctrine that the operation of agreements of this kind must be confined within a definite neighbourhood.
But the Anglo Indian law has stereotyped that doctrine in a narrower form than even the old authorities would justify." "Meanwhile the common law has, on the contrary, been widening the old fixed rules as to limits of space have been broken down, and the court has only to consider in every case of a restrictive agreement whether the restriction is 'reasonable in reference to the interests of the parties concerned reasonable in reference to the interests of the public." Reverting to the judgment of Sir Richard Couch in Madhub Chunder vs Rajcoomar Doss, supra, we find that that eminent Judge held that section 27 of the Contract Act does away with the distinction observed in English cases following upon Mitchel vs Reynolds, supra, between partial and total restraints of trade, and makes all contracts falling within the terms of section void, unless they fall within the exceptions.
As already stated, that decision has always been followed.
In Shaikh Kalu vs Ram Saran Bhagat, [1908] 13 C.W.N. 388 Mukherjee and Carnduff, JJ, referred to the history of the legislation 1298 on the subject and observed that the framers of the Act deliberately reproduced Section 833 of Field 's Code with the full knowledge that the effect would be to lay down a rule much narrower than what was recognised at the time by the common law, while the rules of the common law, on the other hand, had since been considerably widened and developed, on entirely new lines.
They held that the wider construction put upon section 27 by Sir Richard Couch in Madhub Chundur vs Raj Coomar Doss, supra, is plainly justified by the language used, and that the selection had abolished the distinction between partial and total restraints of trade and said: "The result is that the rule as embodied in sec.
27 of the Indian Contract Act presents an almost startling dissimilarity to the most modern phase of the English rule on the subject.
They went on to observe: "As observed, however, by Sir Richard Couch in the case to which we have referred, we have nothing to do with the policy of the law, specially as the Legislature has deliberately left the provision in sec.
27, in its original form, though other provisions of the Contract Act have from time to time been amended.
The interference would be almost irresistible under these circumstances, that the Courts have rightly ascertained the intention of the legislature.
The silence of the Legislature in a case of this description is almost as emphatic as an express recognition of the construction which has been judicially put upon the statute during many years past.
In this view of the matter, if we adopt the construction of sec.
27 of the Indian Contract Act as first suggested by Sir Richard Couch and subsequently affirmed in the cases to which we have referred, a construction which is consistent with the plain language of the section, the agreement in this case must be pronounced to be void." (Emphasis supplied) The Law Commission, in its Thirteenth Report, has recommended that Section 27 of the Act should be suitably amended to allow such restrictions and all contracts in restraint of trade, general or partial, as were reasonable, in the interest of the parties as well as of the public.
That, however involves a question of policy and that is a matter for Parliament to decide.
The duty of the Court is to interpret the section according to its plain language.
The question for consideration is whether, assuming that the wider construction placed by Sir Richard Couch in Madhub Chundur vs 1299 Raj Coomar Doss, supra, to have been the law, at the time of enactment, it has since become obsolete.
A law does not cease to be operative because it is an anachronism or because it is antiquated or because the reason why it originally became the law, would be no reason for the introduction of such a law at the present time.
Neither the test of reasonableness nor the principle of that the restraint being partial was reasonable are applicable to a case governed by Section 27 of the Contract Act, unless it falls within Exception 1.
We, therefore, feel that no useful purpose will be served in discussing the several English Decisions cited at the Bar.
Under Section 27 of the Contract Act, a service covenant extended beyond the termination of the service is void.
Not a single Indian Decision has been brought to our notice where an injunction has been granted against an employee after the termination of his employment.
There remains the question whether the word 'leave ' in clause 10 of the agreement is wide enough to make the negative covenant operative on the termination of employment.
We may for convenience of reference, reproduce that covenant below: "10.
that you shall not be permitted to join any firm of our competitors or run business of your own in similarity as directly and/or indirectly for a period of 2 years at the place of your last posting after you leave the Company.
" On a true construction of clause 10 of the agreement, the negative covenant not to serve elsewhere or enter into a competitive business does not, in my view, arise when the employee does not leave the services but is dismissed from service.
Wrongful dismissal is repudiation of contract of service which relieved the employee of the restrictive covenant General Billposting vs Atkinson L.R. [1909] A.C. 116.
It is, however, urged that the word 'leave ' must, in the context in which it appears, be construed to mean as operative on the termination of employment.
Our attention is drawn to Stroud 's Judicial Dictionary, 4th Edn., Vol.
II, Pr.
13 p. 1503.
There is reference to Mars vs Close, An agreement restricting competition with an employer "after leaving his service" was held to be operative on the termination, however, accomplished, of the service, e.g. by a dismissal without notice.
The word 'leave ' has various shades of meaning depending upon the context or intent with which it is used.
According to the plain meaning, the word 'leave ' in relation to an employee, should be 1300 construed to mean where he "voluntarily" leaves i.e. of his own volition and does not include a case of dismissal.
The word 'leave ' appears to connect voluntary action, and is synonymous with the word 'quit '.
It does not refer to the expulsion of an employee by the act of his employer without his consent and against his remonstrance.
That is a meaning in consonance with justice and fair play.
It is also the ordinary plain meaning of the word 'leave '.
In shorter Oxford English Dictionary, 3rd Ed.
X, page 1192, the following meaning is given "to depart from; quit; relinquish, to quit the service of a person.
" The drafting of a negative covenant in a contract of employment is often a matter of great difficulty.
In the employment cases so far discussed, the issue has been as to the validity of the covenant operating after the end of the period of service.
Restrictions on competition during that period are normally valid, and indeed may be implied by law by virtue of the servant 's duty of fidelity.
In such cases the restriction is generally reasonable, having regard to the interest of the employer, and does not cause any undue hardship to the employee, who will receive a wage or salary for the period in question.
But if the covenant is to operate after the termination of services, or is too widely worded, the Court may refuse to enforce it.
It is well settled that employees covenants should be carefully scrutinised because there is inequality of bargaining power between the parties; indeed no bargaining power may occur because the employee is presented with a standard form of contract to accept or reject.
At the time of the agreement, the employee may have given little thought to the restriction because of his eagerness for a job; such contracts "tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions, and expose them to imposition and oppression.
" There exists a difference in the nature of the interest sought to be protected in the case of an employee and of a purchaser and, therefore, as a positive rule of law, the extent of restraint permissible in the two types of case is different.
The essential line of distinction is that the purchaser is entitled to protect himself against competition on the part of his vendor, while the employer is not entitled to protection against mere competition on the part of his servant.
In addition thereto, a restrictive covenant ancillary to a contract of employment is likely to affect the employee 's means or procuring a livelihood for himself and his family to a greater degree than that of a seller, who usually receive ample consideration for the sale of the goodwill of his business.
1301 The distinction rests upon a substantial basis, since, in the former class of contracts we deal with the sale of commodities, and in the latter class with the performance of personal service altogether different in substance; and the social and economic implications are vastly different.
The Courts, therefore, view with disfavour a restrictive covenant by an employee not to engage in a business similar to or competitive with that of the employer after the termination of his contract of employment.
The true rule of construction is that when a covenant or agreement is impeached on the ground that it is in restraint of trade, the duty of the Court is, first to interpret the covenant or agreement itself, and to ascertain according to the ordinary rules of construction what is the fair meaning of the parties.
If there is an ambiguity it must receive a narrower construction than the wider.
In Mills vs Dunham, , Kay, LJ.
observed: "If there is any ambiguity in a stipulation between employer and employee imposing a restriction on the latter, it ought to receive the narrower construction rather than the wider the employed ought to have the benefit of the doubt.
It would not be following out that principle correctly to give the stipulation a wide construction so as to make it illegal and thus set the employed free from all restraint.
It is also a settled canon of construction that where a clause is ambiguous a construction which will make it valid is to be preferred to one which will make it void.
" The restraint may not be greater than necessary to protect the employer, nor unduly harsh and oppressive to the employee.
I would, therefore, for my part, even if the word 'leave ' contained in clause 10 of the agreement is susceptible of another construction as being operative on termination, however, accomplished of the service e.g. by dismissal without notice, would, having regard to the provisions of Section 27 of the Contract Act, 1872, try to preserve the covenant in clause 10 by giving to it a restrictive meaning, as implying volition i.e. where the employee resigns or voluntarily leaves the services.
The restriction being too wide, and violative of section 27 of the Contract Act, must be subjected to a narrower construction.
In the result, the appeal must fail and is dismissed but there shall be no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | The appellant company carries on business as valuers and surveyors undertaking inspection of quality, weighment analysis, sampling of merchandise and commodities, cargoes, industrial products, machinery, textiles etc.
It has established a reputation and goodwill in its business by developing its own techniques for quality testing and control and possess trade secrets in the form of these techniques and clientele.
It has its head office at Calcutta and a branch at New Delhi and employs various persons as managers and in other capacities in Calcutta; New Delhi and other places.
On March 27, 1971, the respondent was employed by the appellant company as the Branch Manager of its New Delhi office on terms and conditions contained in the letter of appointment issued to him on the same date.
Clause (10) of the terms and conditions of employment placed the respondent under a post service restraint that he shall not serve any other competitive firm nor carry on business on his own in similar line as that of the appellant company for two years at the place of his last posting.
On November 24, 1978, the appellant company terminated the respondent 's services with effect from December 27, 1978.
Thereafter, respondent started his own business under the name and style of "Superintendence and Surveillance Inspectorate of India" at E 22 South Extension New Delhi on lines identical with or substantially similar to that of the appellant company.
On April 19, 1979 the appellant company brought a suit in the Delhi High Court on its original side, claiming Rs. 55,000/ as damages on account of the breach of negative covenant contained in clause (10); and for permanent injunction restraining the respondent by himself, his servants, agents or otherwise, from carrying on the said business or any other business on lines similar to that of the appellant company or associating or representing any competitors of the appellant company before the expiry of two years from December 27, 1978.
After filing the suit the appellant company sought an ad interim injunction by way of enforcing the aforesaid negative covenant and a Single Judge of the Delhi High Court initially granted an ad interim injunction on April 29, 1979 which was confirmed by him on May 25, 1979 after hearing the respondent.
On appeal by the respondent, the Division Bench of the High Court reversed the interim order and hence the appeal by certificate.
Dismissing the appeal, the Court 1279 ^ HELD: (Per Tulzapurkar J., on behalf of Untwalia, J. and himself).
Assuming that the negative covenant contained in clause (10) of the service agreement is valid and not hit by section 27 of the Indian Contract Act, it is not enforceable against the respondent at the instance of the appellant company.
The appellant company should have taken care to use appropriate language, while incorporating such restrictive covenant so as to include every case of cessation of employment arising from any reason whatsoever and not used the expression "leave", which normally is synonymous to the expression "quit" and indicates voluntary act on the part of the employee.
A, B C] (2) The word "leave" has various shades of meaning depending upon the context or intent with which it is used.
According to the plain grammatical meaning that word in relation to an employee would normally be construed as meaning voluntary leaving of the service by him and would not include a case where he is discharged or dismissed or his services are terminated by his employer.
Ordinarily, the word connotes voluntary action.
[1286 D] (3) In the instant case, having regard to the context in which the expression leave occurs in clause (10) of the service agreement and reading it alongwith all the other terms of agreement, it is clear that the word "leave" was intended by the parties to refer to a case where the employee voluntarily left the services of his own.
[1286 G H, 1287 A] Murray vs Close, 32 Law Times Old series p. 89; held inapplicable to Indian Law.
Muesling vs International Rly.
Co., , 178 ; quoted with approval.
Per Sen J.: 1.
Agreements of service, containing a negative covenant preventing the employee from working elsewhere are not void under section 27 of the Contract Act, on the ground that they are in restraint of trade.
Such agreements are enforceable, the reason being that the doctrine of restraint of trade never applies during the continuance of a contract of employment and applies only when the contract comes to an end.
While during the period of employment the Courts undoubtedly would not grant any specific performance of a contract of personal service, nevertheless Section 57 of the clearly provides for the grant of an injunction to restrain the breach of such a covenant, as it is not in restraint of, but in furtherance of trade.
[1289 C E] 2.
There is a clear distinction between a restriction in a contract of employment which is operative during the period of employment and one which is to operate after the termination of employment.
Mere existence of negative covenant in a service agreement does not make it void on the ground that it was in restraint of trade and contrary to the Contract Act.
The restriction contained in clause 10 of the agreement in this case is clearly in restraint of trade and therefore illegal under section 27 of the Contract Act.
It is not seeking to enforce the negative covenant during the term of employment of the respondent but after the termination of his services.
[1289 F G, 1290 F G, 1291 C D] 1280 Niranjan Shankar Golikari vs Century Spinning and Manufacturing Co., Ltd., ; , distinguished.
When a rule of English law receives statutory recognition by the Indian Legislature, it is the language of the Act which determines the scope, uninfluenced by the manner in which the anologous provision comes to be construed narrowly or otherwise modified in order to bring the construction within the scope and limitations of the rule governing the English doctrine of trade.
[1291 H, 1292 A] Satyavrata Ghosh vs Kurmee Ram Bangor, ; , followed.
A contract which has for its object a restraint of trade is, prima facie void.
The question whether an agreement is void under section 27 must be decided upon the wording of that section.
There is nothing in the wording of section 27 to suggest that the principle stated therein does not apply when the restraint is for a limited period only or is confined to a particular area.
Such matters of partial restriction have effect only when the fact fall within the exception to the section.
Section 27 of the Contracts Act is general in terms, and declares all agreements in restraint void pro tanto, except in the case specified in the application and unless a particular contract can be distinctly brought within Exception I there is no escape from the prohibition.
Here the agreement in question is not a "good will of business", type of contract, and, therefore does not fall within the exception.
If the agreement on the part of the respondent puts a restraint even though partial, it was void, and, therefore, the contract must be treated as one which cannot be enforced.
[1292 E H, 1293 A, F G] Madhub Chander vs Raj Coomar Dass, @ 85 86; approved.
A contract in restraint of trade is one by which a party restricts his future liberty to carry on his trade, business or profession in such manner and with such persons as he chooses.
A contract of this class is prima facie void, but it becomes binding upon proof that the restriction is justifiable in the circumstances as being reasonable from the point of view of the parties themselves and also of the community.
Under Section 27 of the Contract Act the onus is upon the covenanter.
[1292 H, 1293 A, & 1294 D E] 6.
A law does not cease to be operative because it is an anachronism or because it is antiquated or because the reason why it originally became the law could be no reason for the introduction of such a law at the present times.
Neither the test of reasonableness nor the principle of that the restraint being partial was reasonable are applicable to a case governed by Section 27 of the Contract Act, unless it falls within Exception I. Under Section 27 of the Contract Act, a service covenant extended beyond the termination of the service is void.
[1299 A C] Nordenfelt vs Maxim.
Nordenfelt Guns and Ammunition Co. Ltd. ; Mason vs Provident Clothing and Supply Co. Ltd., ; Herbert Morris Ltd. vs Saxelby; discussed.
On a true construction of clause 10 of the agreement the negative convenant not serve elsewhere or enter into a competitive business does not, arise 1281 when the employee does not leave the services but is dismissed from service.
Wrongful dismissal is a repudiation of contract of service which relieves the employee of the restrictive covenant.
[1299 E F] General Billposting Co. vs Atkinson, L. R. ; referred to.
The word 'leave ' has various shades of meaning depending upon the context of intent with which it is used.
According to the plain meaning, the word 'leave ' in relation to an employee, should be construed to mean where he "voluntarily" leaves i.e. of his own volition and does not include a case of dismissal.
The word 'leave ' appears to connote voluntary action, and is synonymous with the word 'quit '.
It does not refer to the expulsion of an employee by the act of his employer without his consent and against his remonstrance.
That is a meaning in consonance with justice and fair play.
[1299 H, 1300 A B] 9.
Restrictions on competitions during the period of service are normally valid and indeed may be implied by law by virtue of the servant 's duty of fidelity.
In such cases the restriction is generally reasonable, having regard to the interest of the employer and does not cause any undue hardship to the employee, who will receive a wage or salary for the period in question.
But if the covenant is to operate after the termination of services, or is too widely worded, the Court may refuse to enforce it.
[1300 C D] 10.
It is well established that employee 's covenants should be carefully scrutinised because there is inequality of bargaining power between the parties; indeed no bargaining power may occur because the employee is presented with a standard form of contract to accept or reject.
At the time of the agreement, the employee may have given little thought to the restriction because of his eagerness for a job; such contracts "tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions and expose them to imposition and oppression".
[1300 E F] 11.
The Courts view with disfavour a restrictive covenant by an employee not to engage in a business similar to or competitive with that of the employer after the termination of his contract of employment since a restrictive covenant ancillary to a contract of employment is likely to affect the employee 's means or procuring a livelihood for himself and his family.
[1301 B C] 12.
The true rule of construction is that when a covenant or agreement is impeached on the ground that it is in restraint of trade, the duty of the Court is, first to interpret the covenant or agreement itself, and to ascertain according to the ordinary rules of construction what is the fair meaning of the parties.
If there is an ambiguity it must receive a narrower construction than the wider.
The restraint may not be greater than necessary to protect the employer, nor unduly harsh and oppressive to the employee.
Even if the word 'leave ' contained in clause 10 of the agreement is susceptible of another construction as being operative on termination, however, accomplished of the service e.g. by dismissal without notice, would having regard to the provisions of section 27 of the Contract Act, 1972, try to preserve the Government in clause 10 by giving to it a restrictive meaning, as implying volition i.e. where the employee resigns or voluntarily leaves the services.
The restriction being too wide; and violative of section 27 of the Contract Act, must be subjected to a narrower construction.
[1301 C G] 1282
|
ons Nos. 439 & 440 of 1955.
Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
H. J. Umrigar and R. A. Govind, for the petitioner in Petition No. 439 of 1955.
J. B. Dadachanji, for the petitioner in Petition No. 440 of 1955, M. C. Setalvad, Attorney General of India, B. Sen and R. H. Dhebar, for the respondents.
May 8.
The judgment of section R. Das C. J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment, SINHA J.
These petitions under article 32 of the Constitution challenge the constitutionality of some of the provisions of the Bombay Police Act, XXII of 1951, (which hereinafter will, be referred to as "The Act"), with special reference to section 56, as also of the orders passed against them externing them under that section of the Act.
In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana, the Deputy Superintendent of Police and Sub Divisional Police Officer, Bhivandi Division, Bhivandi, District Thana, and the State of Bombay are respondents 1, 2 and 3.
The petitioner is a citizen of India and carries on trade in grass at Bhilad, a railway station on the Western Railway.
On 21st January 1955 the Deputy Superintendent of Police and Sub Divisional Police Officer, Bhiwandi Division, served a notice under section 56 of the Act in the following terms: 535 No. Ext.
3/1 of 1955 Office of the S.D.P.O. Bhiwandi, Bhiwandi, dated 21 1 1955.
(I) I, Shri C. V. Bapat, Deputy Superintendent of Police and Sub Divisional office Bhiwandi Division, District Thana, do hereby issue a notice to you, Shri Bhagu Dubai Bhandari alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad District Thana, that it is proposed that you should be removed outside the District of Thana and you should not enter or return to the said district for a period of two years from the date of the order to be made under section 56 of the Bombay Police Act, 1951 for the following reasons: (II) Evidence is forthcoming that your following activities have caused and are calculated to cause alarm, danger and harm to person and property in Bhilad and the surrounding areas: (III) You have been dealing in smuggled foreign liquor and maintained a veil of secrecy by criminal intimidation and physical violence to the villagers and other right thinking persons.
(2) Your activities have been in continuation of your similar activities for the.
last five years, given as under: (a) You criminally assaulted persons with the help of your associates and did violent acts in order to strike terror into the hearts of the villagers, so that they should not challenge you or your men.
(b) You have been criminally assaulting and intimidating Central Excise and Custom officials with the help of your gang, so as to stop them from looking into your anti national, anti social and illegal activities.
As a result of your unlawful and dangerous activities you are held in terrific awe by the Central Excise and Custom Officers and men and villagers in Bhilad area who are continuously labouring under grave apprehension of danger to their per son and property.
(c) You and your associates were and are making use of criminal intimidation against the villagers in order to prevent them from having recourse to legal means.
536 (III) That you and ' your associates are also understood to be in possession of unlicensed firearms which has been causing considerable alarm and spreading a feeling of insecurity of life and property in the mind of villagers from Bhilad and neighbouring villages and Central Excise and Customs employees.
(IV) The witnesses are not willing to come forward and to give evidence against you by reason of apprehension of danger and harm to their person and property.
(V) Now, I Shri C. V. Bapat, Deputy Superintendent of Police and Sub Divisional Police Officer, Bhiwandi Division, District Thana in exercise of the authority conferred upon me under section 59 of the Bombay Police Act, 1951 by the District Magistrate Thana under his number,MAG.
2/ EX dated 17 1 1955 do hereby direct you to appear before me at 11 a.m. on 27 1 1955 at Dahanu in the office of the Sub Divi sional Police Office Dahanu for tendering your explanation regarding the said allegation.
You are also entitled to appear before me by advocate for the purpose of tendering your explanation and examining witnesses, produced by you.
Signed and sealed this day of 21st Jan. 1955. Sd. . . . .
Deputy Superintendent of Police & Sub Divisional Police Officer, Bhiwandi.
To Shri Bhagu Dubal Bhandari @ Bhagwanbhai Dullabhai Jadhav of Bhilad, District Thana".
By that notice the petitioner was called upon to appear before the said police officer on the 27th January 1955 in order to enable the former to offer such explanation and examine such witnesses as he may be advised.
In pursuance of that notice the petitioner appeared, before the police officer aforesaid and the hearing of his case took place on different dates.
The petitioner claims to have examined seven "respectable persons" to testify on his behalf.
Ulti mately on the 11th July 1955 an order was passed by the District Magistrate of Thana externing the petitioner outside the Thana District.
The order of 537 externment is exhibit D to the petition and contains the recitals that after considering the evidence before him and the explanation offered by the petitioner the District Magistrate of Thana (the 1st respondent), was satisfied that the petitioner "engages in giving threats and assaulting Central Excise and Customs Officials men and residents of Bhilad and surrounding villages and indulges in illicit traffic of foreign liquor from Daman" and that in his opinion "witnessess are not willing to come forward to give evidence in public against the said Shri Bhagubhai Dul labhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad by reason of apprehension on their part as regards the safety of their person and property".
It is this order which is challenged as illegal and ultra vires and against which the petitioner has moved this Court for an appropriate writ, direction or order against the respondents " prohibiting them, their servants and agents from acting upon or taking any steps in enforcement, furtherance or pursuance of the said order and from interfering in any manner with the petitioner 's right to reside in Bhilad and carry on his business.
The petitioner had preferred an appeal to the Government against the said order of externment.
But the appeal was dismissed on the 9th September 1955.
Against the said order the petitioner moved the High Court of Judicature at Bombay under article 226 of the Constitution, but the said application was also dismissed in limine by the High Court by its order dated the 7th November 1955, The District Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in this Court in answer to the petition.
He swears that he had passed the externment order complained against after perusing the police reports and going through the explanation offered by the petitioner and the statements of the witnesses produced by him and on hearing his advocate.
He further states in the affidavit that the general nature of the material allegations against the petitioner was given to him, that the material given to him was clear and by no means vague.
Only the names of the persons who had given the, 538 information against the petitioner were not disclosed to him inasmuch as those persons were not prepared to.
come out in the open and depose against him in public as witnesses.
He was satisfied that witnesses were unwilling to come forward to give evidence in public against the petitioner.
He also affirms that the petitioner 's movements and acts were not only causing alarm, danger or harm to personal property of the general public round about Bhilad, but also that his movements and acts were causing danger and alarm to public servants of the police force and the Central Excise who were doing very responsible work at Bhilad which is on the borderline of the Indian territory adjoining Daman area which is Portuguese territory.
He admits that the petitioner was discharged by 'the Judicial Magistrate, First Class, Umbergaon because the witnesses did not appear and depose against 'him for fear of the petitioner.
In Petition No. 440 of 1955, Kunwar Rameshwar Singh is the petitioner and the respondents are 1.
Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch (I) C.I.D., Greater Bombay, 2.
The Commissioner of Police, Greater Bombay, and 3.
The State of Bombay.
The petitioner is a citizen of India and claims to be a "social worker" connected with several social organisations.
He alleges that his main social activity has been the improvement of the lot of prostitutes and singing girls in certain quarters 'of Bombay On the 2nd November, 1954 the petitioner was served with a notice under section 56 read with section 59 of the Act (exhibit A to the petition) setting out the allegations against him and calling upon him to ex plain those matters.
In pursuance of the said notice the petitioner appeared before the Superintendent of Police to show cause against the proposed action against him.
Ultimately on the 4th January, 1955 the Commissioner of Police, the second respondent, passed an order to the effect that the petitioner should remove himself from the limits of Greater Bombay 539 within seven days.
That order is marked exhibit H and is to the following effect.
" Order of Externment (Section 56 of the Bombay Police Act, 1951) Police Station: Nagpada No. 7/c/43/1955.
Whereas the Commissioner of Police, Greater Bombay, has directed by his order, dated the 13th August, 1954 and 11th December 1954, made under sub section (2) of section 10 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) that the powers, functions and duties under the said Act shall also be exercised by the Deputy Commissioners of Police, Greater Bombay.
And whereas evidence has been placed before me, Deputy Commissioner of Police, Crime Branch (1), against the person known as Kunwar Rameshwar Singh, to the following effect: I.
That since October, 1953 in the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay his movements and acts are causing alarm and harm to the persons residing in, carrying 'on business in, or visiting the said locality in that: (i) He with assistance of his associates some of them being Sk.
Makbool Sk.
Hussain, Abdul Rahiman, Suleman alias Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others, extort Money from women residing in and carrying on business either as prostitutes or singing girls in the said locality on threats of assault and of causing bodily injury to them; (ii) That he with the assistance of the said associates assault or threaten with assault the aforesaid women who do not comply with his demands for money; (iii) That in order to compel the aforesaid women to pay him the money demanded by him he also posts his associates at or near the places of business of the aforesaid women and prevent customers from entering the rooms of, such women; 70 540 (iv) That he with the assistance of his associates extort money from shopkeepers, hotel keepers, merchants and hawkers carrying on business in the said locality and from rent collectors of buildings occupied by the aforesaid prostitutes and singing girls by assaulting them or threatening them with assault and dislocation of business; (v) That he causes damage to the property of the said hotelkeepers and hawkers of the said locality who do not pay him money demanded by him; (vi) That he accosts persons visiting the rooms of singing girls in the said locality for the purpose of entertainment and demand money from them under threats of assault and of preventing them from visiting the said locality; (vii) That he has committed several acts of the nature mentioned above.
That witnesses to the above incidents are not willing to come forward to give evidence in public against him as they apprehend that they will be assaulted by him and/or by his associates if they do so.
And whereas I have heard the said person and considered the explanation tendered by him and also the evidence given by the witnesses produced by him and have heard his counsel.
And whereas after considering all the evidence and explanation detailed above, I am satisfied that: The Movements and acts of Kunwar Rameshwar Singh since October, 1953, are causing alarm and harm to the persons residing in carrying on business in or Visitin the locality known as Falkland Road, Foras Road Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay and that he indulges in activities mentioned above.
And whereas in my opinion witnesses are unwilling to come forward to give evidence in public against the said person by reason of apprehension on their part as regards the safety of their persons; Now, therefore, in exercise of the powers vested in me under section 56 of the said Act, 1, Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch 541 (1) C.I.D., Greater Bombay himself hereby direct that the said Kunwar Rameshwar Singh shall remove outside the limits of Greater Bombay by Central Rly.
(route) within seven days from the date of service of this order and I further direct that he shall not enter the said area of Greater Bombay for a period of two years from the date of this order without a permission in writing from the Commissioner of Police Greater Bombay, or the Government of Bombay.
W. K. Patil, Dy.
Commissioner of Police, Crime Branch (I) C.I.D. Greater Bombay".
The order quoted above is a self contained one and discloses the nature of the allegations against him which he bad been called upon to explain.
The petitioner preferred an appeal to the third respondent, the State of Bombay.
But his appeal was dismissed on the 17th January 1955.
The petitioner challenged the validity of the said order passed by the respondents by a petition under article 226 of the Constitution to the Bombay High Court, but it was dismissed on the 14th March 1955 after hearing.
The judgment of the High Court is Exhibit D.
The learned Judge of the Bombay High Court who dealt with the petition has set out briefly the main allegations of the petitioner and the affidavit in answer to the petition sworn to by the 1st respondent here.
The learned Judge observed in the course of his judgment that in view of the averments in the petition and those in the affidavit in reply it was impossible for him to hold that the Deputy Commissioner of Police knew that witnesses were willing to give evidence against the petitioner.
The petitioner went up on Letters Patent Appeal and a Division Bench consisting of the Chief Justice and another Judge of the Bombay High Court dismissed the appeal holding that once the opinion has been formed by the authority that witnesses were unwilling to give evidence in public against the petitioner, the court could not go behind that opinion.
They also negatived the plea of want of bona fides in the 1st respondent who had initiated the proceedings.
542 The petitioner removed himself outside the limits of Greater Bombay.
Having come to know that a warrant of arrest had been issued Against him in a certain pending case before the Presidency Magistrate, Fourth Court, at Girgaum, Bombay, on the 6th April 1955, the petitioner entered Greater Bombay to attend court but he was arrested under the Act for committing a breach of the externment order.
He was prosecuted before the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under section 142 of the Act.
He was convicted by the Magistrate and sentenced to nine months rigorous imprisonment by a judgment dated the 8th September 1955.
The Magistrate 's judgment is Exhibit to the petition.
The learned Magistrate overruled the petitioner 's contention that the order of externment passed against him was illegal, relying chiefly upon the judgments of the High Court referred to above, upholding the constitutionality of that order.
As regards his defence that he had entered Greater Bombay in obedience to the warrant issued against him, the learned Magistrate observed that as a matter of fact, according to the statement of the petitioner 's counsel before him he had taken that step "to test the validity of the order".
Secondly, the learned Magistrate has rightly pointed out that the petitioner should have obtained the previous permission of the Police Commissioner before returning to Bombay, as otherwise the order of externment would be rendered nugatory.
The learned Magistrate also observed in the course of his judgment that no allegations of mala fides had been made against the police officers who bad initiated the proceedings against the petitioner.
The petitioner went up in appeal to the High Court of Bombay which by its judgment dated the 5th October 1955 upheld the conviction and the sentence.
The judgment of the High Court is Exhibit G to the petition.
A Division Bench of the Bombay High Court repelled the contention on behalf of the appellant that the order of externment was invalid, relying chiefly upon the previous judgment of that very court upholding the constitutionality of the very order 543 impugned.
Another matter referred to in the judgment of the High Court is rather significant.
On behalf of the appellant reliance had been placed upon a letter alleged to have been sent to the petitioner by the Secretary to the Chief Minister granting permission to him to return to Bombay in order to see the Home Secretary.
It was found on enquiry by the learned Government Pleader who intimated to the court that the alleged letter had not been signed by the Secretary to the Chief Minister and that no such letter had actually been sent to him.
On that statement being made, the petitioner 's counsel did not press his contention that his return was after permission.
The petitioner moved this Court for special leave to appeal against the said judgment of the High Court in Petition No. 601 of 1955.
One of the grounds in the petition was that the High Court should have held that the externment order was illegal and that therefore the petitioner 's entry was lawful.
A Constitution Bench of this Court by its order dated the 21st November 1955 dismissed the petition for special leave to appeal.
This completes the statement of the case made on behalf of the petitioner.
In answer to this petition the first respondent has sworn to the affidavit filed in this Court.
It is necessary to state in some detail the facts stated in this affidavit which furnish the background to the whole case against the petitioner.
The petitioner is said to be a native of Balrampur, District Gonda, Uttar Pradesh.
After passing his school examination in 1940, he joined the then Royal Indian Navy in 1942.
In the year 1946 while he was attached to section section Talwar in Bombay, be was "released from service".
In 1947 he joined the B. B. & C. 1.
Railway as a clerk and was removed from his post in July 1947 for having made baseless allegations against his superior officer.
In 1949 he made an attempt to enter the police force of Greater Bombay, but that failed as he was found to be unreliable.
Subsequently, in August 1950 he joined the State Transport Department as a clerk but had again to be removed from that post in April 1951.
Later on, the petitioner obtained accommodation in 544 Bombay on a false representation that he was a refugee from Pakistan.
He was prosecuted and convicted and sentenced to pay a fine of Rs. 30 or three months rigorous imprisonment in default.
His appeal from that order of conviction and sentence to the High Court of Bombay was dismissed by a Division Bench in September 1954.
On a similar false repre sentation he had obtained from the Custodian of Evacuee Property two shops in Bombay.
Necessary proceedings had to be taken against him for evicting him from those shops.
After his removal from Government jobs as aforesaid, the petitioner "came forward" as a social worker directing his activities mainly to "the redlight district" in certain quarters of Greater Bombay inhabited by over 10,000 public women.
Along with his associates he started a norent campaign and resorted to violence with the help of so called volunteers who were themselves bad characters, externees, drunkards and persons with previous convictions.
With the help of associates like those he moved in the "redlight district" and realised money from his victims by threat and intimidation.
Thus by all questionable means the petitioner started extorting moneys by harassing the inmates of that district and those who frequented those quarters.
The rest of the long affidavit running into 29 paragraphs is devoted to denying the allegations made by the petitioner that he had been a victim of police combination against him or that the procedure laid down by the law had not been followed or that the petitioner had not a fair and full opportunity of explaining his case to the authorities.
The affidavit further asserts that witnesses who had given their statements to the police against the petitioner were not willing to come forward openly to depose against him and some of those witnesses who did turn up were prevailed upon by the petitioner to change their original statements made during the preliminary inquiries.
On those averments it was submitted by the 1st respondent that the proceedings against him were regular and in accordance with the provisions of 545 the Act and that there was no merit in his contentions.
These two petitions were heard along with Petition No. 272 of 1955 which is being disposed of by a separate judgment.
In that case the order impugned had been passed under section 57 of the Act.
Sections 56 to 59 of the Act are closely connected.
The common arguments addressed to us by Shri Purshotham challenging the validity of sections 56 to 59 have been dealt with in that judgment and need not be repeated here.
It is only necessary to deal with the provisions of the section impugned in these two cases, namely, section 56 of the Act, which is in these terms: "Whenever it shall appear in Greater 'Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section to the District Magistrate, or the Sub Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an.
Offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit., direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the, outbreak or spread of such disease or to remove himself outside the area Within the local limits of his jurisdiction by 546 such route and within such time as the said officer may prescribe and not to enter or return to the said area from which he was directed to remove himself".
In order to attract the operation of the section quoted above with special, reference to the portions relevant to these cases, it is necessary (1) that the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in that behalf, as the case may be, should be satisfied that the movements or acts of any person are causing or calculated to, cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force of violence or an offence punishable under Chapter XII, XVI or XVII, Indian Penal Code, or in the abetment of any such offence, and (2) that in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property.
When the officer concerned is satisfied about these two essential matters, he may direct such person to remove himself outside the local limits of his jurisdiction and not to return to the said area for a period not exceeding two years as laid down in section 58.
But before passing such orders the person proceeded against under section 56 has to be given an opportunity of explaining matters against him by adducing such evidence as he may tender after he has been informed in writing as to the "general nature of the material allegations against him".
Such a person is entitled to appear before the officer by an advocate or attorney for the purpose of tendering his explanation.
and evidence.
It has not been contended on behalf of the petitioners that they had not been given the opportunity contemplated by section 59.
But grievance was sought to be made of the fact that particulars of the evidence against the petitioners and of their alleged activities have not been given to them.
That argument has 547 been dealt with in the judgment in the other case.
It is necessary therefore to deal only with the particular arguments advanced on behalf of each petitioner peculiar to his case.
In Petition No. 439 of 1955, it was said that this Court had laid down in the case of Gurbachan Singh vs State of Bombay(1) as follows: "The law is certainly an extraordinary, one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein".
The words "no witnesses" have been emphasized as supporting the argument that unless all the witnesses before the police are unwilling to give evidence in open court the provisions of section 56 cannot be taken recourse to.
In our opinion, it is reading too much into the observations of this Court quoted above, made by Mukherjea, J. (as he then was).
The learned Judge did not mean to lay down, and we do not understand him as having laid down, that unless each and every witness is unwilling to give evidence in open court, the provisions of section 56 are not available to the police.
The words of section 56 quoted above do not lend themselves to that extreme contention.
If such an extreme interpretation were to be put on that part of section 56, it is not difficult to imagine a situation where it will become almost impossible to apply that section to any case.
It was next contended on behalf of the petitioner in this case that the section contemplates witnesses other than members of the police force and employees and officers of the Customs Department.
It is said that it is the duty of the police force as of the employees of the Customs Department to brave all danger and to come out in the open even against desperate criminals to give evidence against them in court and to subject themselves to cross examination.
That is a counsel of perfection which every member (1) 71 548 of the police force or every employee of the Customs Department may not be able to act up to.
Furthermore, the terms of the section do not justify any such restricted meaning being given to the word "witness".
Hence, in our opinion, there is no justification for the contention that members of the police force and employees and officers of the Customs Department must always come in the open and give evidence against criminals or potential criminals.
If the officer concerned is satisfied that witnesses of whatever description they may be, are not willing to come out in the open, one of the essential conditions of the application of section 56 is fulfilled and it is no more necessary for them to stop to consider as to which class of persons those witnesses may come from.
In Petition No. 440 of 1955 the learned counsel for the petitioner had a more uphill task in view of the fact that this very order impugned bad been examined in the criminal prosecution against the petitioner by the Presidency Magistrate and by the High Court on appeal and the petition for special leave to appeal to this Court had been refused.
But it was argued on behalf of the petitioner that section 56 itself wag invalid as contravening the provisions of article 19 of the Constitution an argument which has already been dealt with by this Court in Gurbachan Singh vs State of Bombay(1) referred to above.
In that case, Mukherjea, J. (as he then was) delivered the judgment of the court after examining the constitutionality of section 27(1) of the City of Bombay Police Act, (Bombay Act IV of 1902).
The operative words of that section are almost exactly the same as those of section 56 of the Act.
It is not therefore necessary to re examine the constitutionality of those very provisions in this case.
It is enough to point out that no attempt was made in this Court to ;bake the authority of that decision.
Shri Dadachanji, who appeared on behalf of the petitioner in this case faintly suggested that the petitioner had been proceeded against under the penal sec (1) ; 549 tion of the Act notwithstanding the fact that he had entered Greater Bombay in order to look after the case pending against him in which a warrant of arrest had been issued.
But that is a closed chapter so far as the courts including this Court also are concerned inasmuch as his conviction stands conformed as a result of the refusal of this Court to grant him special leave to appeal from the, judgment of the Bombay High Court.
He further contended that his conviction for his ' having entered Greater Bombay itself is an indication of the unreasonableness of the restriction and of the law under which the order of externment had been passed against him.
But if the petitioner had only taken the course indicated by the law, namely, of obtaining the previous permission of the prescribed authority, he could have avoided the prosecution and the conviction.
It must therefore be held that there is no merit in this contention also.
For the reasons aforesaid it must be held that section 56 of the Act is not unconstitutional and that the orders passed against the petitioners are not invalid.
These applications must stand dismissed.
JAGANNADHADAS J.
In view of the decision of this Court in Gurbachan Singh vs The State of Bombay(1), I agree that these petitions should be dismissed.
But I think it right to add that if the matter were res integra I should have felt difficulty in upholding the validity of section 56(b) of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters, serious either because of the nature of the offence contemplated or the circumstances under which it is to be committed and so forth.
I should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a (1) ; 550 period as two years.
it has been said that there is a power of cancellation at any time vested in the officer concerned.
Even so, I should have thought that the vesting of a power to extern, a person out of his home for so long a period without the obligation to review the order at some stated periodical intervals, say once in three months or six months, is prima facie unreasonable.
Externment might appear on the surface not to be as serious an interference with personal liberty as detention.
But in actual practice it may be productive of more serious injury to the person concerned or the rest of his family if he is the earning member.
An externed person is virtually thrown on the streets of another place where be has got to seek his livelihood afresh.
He has to start in a new society with the black mark of externment against him and may be driven thereby to more criminality.
On the other hand, in the case of a person under detention, the State normally takes or is bound to take care of him, and in appropriate cases provides also for his family.
In view, however, of the previous decision of this Court which is binding on me, I am prepared to accept the validity of section 56 of the Bombay Police Act, 1951, and of the orders of externment passed thereunder in these two cases.
Petition dismissed.
| IN-Abs | Section 56 of the Bombay Police Act, 1951, is not unconstitutional and does not contravene the provisions of article 19 of the Constitution.
Gurbachan Singh vs State of Bombay ( ; , followed.
In order to attract the operation of the section the Officer concerned should be satisfied that the witnesses are not willing to come forward to give evidence in public, but it is not necessary to show that all the witnesses are unwilling to give evidence.
The terms of the section do not justify any restricted meaning being given to the word "witnesses" and it is applicable to members of the police force and employees and officers of the Customs Department also.
Gurbachan Singh vs State of Bombay ( ; , explained.
Under the provisions of section 56 of the Bombay Police Act, 1951, an order of externment was passed against the petitioner by which he was directed to remove himself outside the limits of Greater Bombay and not to enter the said area for a period of two years without the prescribed permission; and subsequently he entered Greater Bombay in order to attend Court in a case pending against him in which a warrant of arrest had been issued.
He was convicted for committing the breach of the externment order and he contended that his conviction was in itself an indication of the unreasonableness of the restriction.
Held, that the restrictions cannot be said to be unreasonable, as the petitioner could have avoided the prosecution.
and the conviction by obtaining the previous permission of the prescribed authority.
Per JAGANNADHADAS J.
If the matter were res integra should have felt difficulty in upholding the validity of section 56(b) of 534 the Bombay Police Act, 1951, in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters.
I.should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a period as two years.
|
ition Nos. 656 660, 512 533 and 503 511 of 1977.
(Under Article 32 of the Constitution) AND Review Petitions Nos. 34, 62 65, 66 72, 73 74, 75 77, 78 81, 82, 83 84, 85, 86 87, 88, 89 90, 91 92, 93 94, 95, 95A, 96, 103 107, 110, 120, 121, 122 130 of 1977.
AND Writ Petition No. 63 of 1977.
(Under Article 32 of the Constitution).
M. N. Phadke, N. M. Ghatate (Dr.), section N. Bapat and section V. Deshpande for the Petitioners in RPs.
34, 62 95, 95A, 96, 103 107, 120 123 & WPs.
656 660, 503 511/77.
M. section Gupta for the Petitioners in RPs.
110, 122 130/77.
section N. Kherdikar, M. N. Ingle, A. G. Ratnaparkhi and C. K. Ratnaparkhi for the Petitioners in WPs.
512 533/77.
section V. Gupte, Att.
K. H. Bhatt, R. N. Sachthey and Miss A. Subhashini for R 1 in WPs.
503 511, 512 533, 656 660 & RPs.
34, 62 65/77.
section V. Gupte, Att.
C. J. Sawant, M. C. Bhandare, M. B. Bor & M. N. Shroff for R. 2 in WPs.
503 533 and for RR.
2 & 3 in WPs.
656 660/77.
9 section V. Gupte, Att.
Gen. and Miss A. Subhashini for the Att.
R. K. Rastogi, J. section Rastogi and Bardridas Sharma for the State of Rajasthan in WP No. 656/77.
G. N. Dikshit and M. V. Goswami for the State of U.P. Altaf Ahmed for the State of Jammu & Kashmir in WPs.
533 & 656/77.
FOR THE ADVOCATES GENERAL: U. P. Singh and Shambhunath Jha (State of Bihar).
M. M. Abdul Khader and K. R. Nambiar (State of Kerala).
B. M. Patnaik and R. K. Mehta (State of Orissa).
K. M. K. Nair and N. Nettar (State of Karnataka).
K. M. K. Nair and N. Nettar (State of Tamil Nadu).
FOR THE INTERVENERS: V. N Ganpule for Pratap Rao in W.P. 503.
R. K. Garg for Shyam Narain Tiwari in RP 34/77 & WP 512/77 R. N. Bannerjee, J. section Sinha and J.B.D. & Co. for Panch Valley Coal Co. and Shri Bimal Poddar in WP.
512/77.
G. L. Sanghi, Miss Bhubnesh Kumari, K. J. John and J. B. D. & Co. for the Appellant Intervener Lt. Col. Himmat Singh & Ors. section B. Wad for the Applicant/Intervener in WPs.
342 & 343 of 77 and RP. 63/77.
The following Order was delivered on 9th May, 1980.
(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub clauses (a) to (e), for the original clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament.
(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus: "31B.
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 provi 10 sions 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 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.
" In Kesavananda Bharati decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.
We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional.
Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure.
We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose.
(3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Kesavananda Bharati.
Article 31C, as it stood prior to the Constitution (42 Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.
(4) All the Writ Petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs.
The stay orders granted in these matters will stand vacated.
We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos.
656 660 of 11 1977; 512 533 of 1977; and 503 to 511 of 1977.
The costs will be payable to the Union of India and the State of Maharashtra in equal measure.
(5) Writ Petition No. 63 of 1977 (Baburao Samant vs Union of India) will be set down for hearing.
(6) Reasons for this Order will follow later.
The following Judgments were delivered: CHANDRACHUD, C.J. A ceiling on agricultural holdings was imposed in Maharashtra by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961, which was brought into operation on January 26, 1962.
The ceiling fixed by that Act (the Principal Act), was lowered and certain other amendments were made to that Act by Acts 21 of 1975, 47 of 1975 and 2 of 1976.
The validity of these Acts was challenged in the Bombay High Court in a large group of over 2660 petitions.
A Division Bench of the High Court sitting at Nagpur repelled that challenge by a judgment dated August 13, 1976, in Vithalrao Udhaorao Uttarwar vs State of Maharashtra The High Court held that the provisions of the aforesaid Acts were not open to challenge on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III of the Constitution, since those Acts were placed in the Ninth Schedule by the Constitution 17th Amendment Act, 1964, and the Constitution 40th Amendment Act, 1976, and also because of the promulgation of Emergency as a result of which, the rights under Articles 14 and 19 of the Constitution could not be enforced.
The High Court also repelled the challenge to the validity of Article 31B itself by holding that far from damaging the basic structure of the Constitution, the Constitution (First Amendment) Act, 1951, which introduced Article 31B into the Constitution, fortified that structure by subserving a fundamental constitutional purpose.
Certain provisions of the Principal Act and of the Amending Acts.
particularly the concept of 'family unit ' were challenged before the High Court on the ground, inter alia, that they were outside the purview of Article 31A.
On an overall consideration of the movement of agrarian reforms, with particular reference to the relevant statistics in regard to Maharashtra, the High Court rejected that challenge too on the ground that those provisions formed a part of an integral scheme of agrarian reforms under which large agricultu 12 ral holdings had to be reduced and the surplus land distributed amongst the landless and others.
The appeals filed against the decision of the Bombay High Court were dismissed by this Court by a judgment dated January 27, 1977 in Dattatraya Govind Mahajan vs State of Maharashtra.
The only point urged in those appeals was that the Principal Act, as amended, was void being violative of the second proviso to Article 31A(1), in so far as it created an artificial 'family unit ' and fixed the ceiling on the agricultural holdings of such family units.
The argument was that the violation of the particular proviso deprived the impugned laws of the protection conferred by Article 31A. That argument was rejected by the Court on the view that even if the impugned provisions were violative of the second proviso, they would receive the protection of Article 31B by reason of the inclusion of the Principal Act and the Amending Acts in the Ninth Schedule.
The Court considered whether, in fact, the provisions of the impugned Acts were violative of the second proviso and held that it was entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court could not assume the role of an economic adviser for pronouncing upon the wisdom of such policy.
The second proviso to Article 31A(1) was therefore held not to have been contravened.
The judgment of this Court in the appeals aforesaid was delivered on January 27, 1977 while the proclamation of emergency was in operation.
On the revocation of that proclamation, petitions were filed in this Court by the appellants praying for the review of the judgment in Dattatraya Govind Mahajan (Supra) on the ground that Several contentions, which were otherwise open to them for assailing the constitutional validity of the impugned Acts, could not be made by reason of the emergency and that they should be permitted to make those contentions since the emergency was lifted.
Fresh Writ Petitions were also filed in the Court in which those contentions were put forward.
The Court having accepted the request for the review of the judgment in Dattatraya Govind Mahajan, (supra) these matters have come before us for consideration of the other points involved in the appeals.
In these proceedings, the main challenge now is to the constitutionality of Articles 31A, 31B and the unamended Article 31C of the Constitution.
The various grounds of challenge to the Principal Act and the Amending Acts were met on behalf of the respondents by rely 13 ing on the provisions of these Articles which throw a protective cloak around laws of a certain description and variety, by excluding challenge thereto on the ground that they are violative of certain articles of the Constitution.
The reply of the appellants and the petitioners to the defence of the respondents is, as it could only be, that the very provisions of the Constitution on which the respondents rely for saving the impugned laws are invalid, since these particular provisions of the Constitution, which were introduced by later amendments, damage or destroy the basic structure of the Constitution within the meaning of the ratio of the majority judgment in Keshavananda Bharati.
Articles 14, 19, 31A. 31B, 31C (as unamended) and 368, which are relevant for our purpose, are familiar to lawyers and laymen alike, so great is their impact on law and life.
Article 14, the saviour of the rule of law, injuncts that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 19 confers upon the citizens rights like the freedom of speech and expression, the right to assemble peaceably, the right to form associations, the right to move freely throughout the territory of India, the right to reside and settle in any part of India, and the right to practise any profession or to carry on any trade, business or calling.
These rights make life meaningful and, without the freedoms conferred by Article 19, the goal of the Preamble will remain a dream unfulfilled.
The right to property conferred by Articles 19(1)(f) and 31 was deleted by the 44th Amendment with effect from June 20, 1979.
Article 31A(1) (a) provides that: Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19.
Article 31B provides that: 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 14 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 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.
Article 31C, as it existed prior to its amendment by the 42nd Amendment Act, which came into force on January 3, 1977, provided that: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.
Articles 31A and 31B were introduced into the constitution by the Constitution (First Amendment) Act, 1951, the former with retrospective effect from the date of the enactment of the Constitution.
Article 31C (unamended) was introduced by the Constitution (Twenty fifth Amendment) Act, with effect from April 20, 1972.
The last clause of that article, which gave conclusiveness to the declaration regarding the policy of the particular Act, was struck down as invalid in Kesavananda Bharati (supra).
That part now lives an italicized existence in official publications of the Indian Constitution.
The words "the principles specified in clause (b) or clause (c) of article 39 ' were substituted by the words "all or any of the principles laid down in Part IV", by the 44th Amendment, with effect from June 20, 1979.
We are concerned with Article 31C as it stood originally but, of course, without the concluding part struck down in Kesavananda Bharati (supra).
Article 368 of the Constitution reads thus: "368.
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) x x x x x 15 (3) Nothing in article 13 shall apply to any amendment made under this article.
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement of section 55 of the Constitution (Forty second Amendment Act 1976) shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
" Clauses (4) and (5) above were inserted by section 55 of the 42nd Amendment Act 1976 with effect from January 3, 1977.
Those clauses were declared unconstitutional, as being beyond the amending power of the Parliament, by a very recent decision of this Court in Minerva Mills which was pronounced on July 31, 1980.
The judgment of the Court on the invalidity of clauses (4) and (5) was unanimous.
The question as to whether Articles 31A(1)(a), 31B and the unamended Article 31C are valid shall have to be decided on the basis that clause (5) of Article 368 is ineffective to enlarge the Parliament 's amending power so as to empower it to make amendments which will damage or destroy any of the basic features of the Constitution and Clause (4) is ineffective to take away the power of the courts to pronounce a constitutional amendment invalid, if it damages or destroys any of the basic features of the Constitution.
Thus, the main question arising before us has to be decided by applying the ratio of Kesavananda Bharati (supra), in its pristine form.
It is quite another matter that learned counsel led by Shri M. N. Phadke question whether any ratio at all is discernible from the majority judgments in Kesavananda (supra).
The first question to which we have to address ourselves is whether in enacting Article 31A (1) (a) by way of amendment of the Constitution, the Parliament transgressed its power of amending the Constitution.
As stated earlier, Article 31A was inserted in the Constitution by section 4 of the Constitution (First Amendment) Act, 1951 with retrospective effect from the commencement of the Constitution.
16 Article 31A(1), as introduced by the 1st Amendment on June 18, 1951, read thus: 31A. (1) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part.
Article 31A was amended, with the same degree of retrospective effect again, by the Constitution (Fourth Amendment) Act, 1955.
Two alterations, not substance wise material, were made by the 4th Amendment.
The opening non obstante clause which originally extended to "anything in the foregoing provisions of this Part", that is to say Part III, was substituted by a clause restricted to "anything contained in Article 13".
Secondly, whereas under the Article as conceived originally, the challenge to laws of agrarian reform was excluded on the broader ground of their inconsistency, abrogation, or abridgement of any of the rights conferred by "any provisions of" Part III, under the amended article the challenge is excluded in relation to the violation of the three specific articles, namely, Articles 14, 19 and 31.
The 4th Amendment introduced clauses (a) to (e) in Article 31A, the content of clause (a) being the same as that of old clause (1).
Clauses (b) to (e) were added newly by the 4th Amendment, comprehending laws of four other categories like laws providing for the taking over of the management of any property by the State for a limited period, laws providing for amalgamation of two or more corporations, laws providing for extinguishment or modification of rights of persons interested in corporations; and laws providing for extinguishment or modification of rights accruing under any agreement, lease or licence relating to minerals.
We are not concerned in these matters with the provisions of clauses (b) to (e), though we would like to state expressly and specifically that whatever is relevant on the question of the validity of clause (a) will apply with equal force to the validity or otherwise of clauses (b) to (e).
By section 7 of the Constitution (Forty fourth Amendment) Act, 1978 the reference to Article 31 was deleted from the concluding portion of Article 31A(1) with effect from June 20, 1979, as a consequence of the deletion, by section 2 of the 44th Amendment, of clause (f) of Article 19(1) which gave to the citizens the right to acquire, hold and dispose of property.
The deletion of the right to property from the array of fundamental rights will not deprive the petitioners of the arguments which were available to them prior to the coming into 17 force of the 44th Amendment, since the impugned Acts were passed before June 20, 1979 on which date Article 19(1)(f) was deleted.
There is no doubt, nor indeed is it disputed, that the Agricultural Lands Ceiling Acts, which are impugned in these proceedings, fall squarely within the terms of clause (a) of Article 31A(1).
Those Acts provide for the extinguishment and modification of rights in an 'estate ', the expression 'estate ' being defined by clause (2) (a) (iii) to mean "any land held or let for purposes of agriculture or for purposes ancillary thereto. ".
It must follow, as a necessary corollary, that the impugned Acts are entitled to the protection of Article 31A(1) (a) when the result that their provisions cannot be deemed, and therefore cannot be declared, to be void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Articles 14, 19 or 31.
This is the reason why and the contest in which the validity of Article 31A(1)(a) is itself assailed by the petitioners.
If a constitutional provision, which deprives the petitioners of the benefit and protection of Articles 14, 19 and 31, is invalid, the petitioners will be entitled to challenge the impugned laws on the ground that they are inconsistent with or that they take away or abridge the rights conferred by Part III of the Constitution.
Article 13(2), has a sensitive touchstone.
Not only does it mandate that the State shall not make any law which takes away or abridges the rights conferred by Part III but, it provides that any law made in contravention of the clause shall, to the extent of the contravention, be void.
Mere abridgement, that is to say curtailment, and not necessarily abrogation, that is to say total deprivation, is enough to produce the consequence provided for by Article 13(2).
The validity of the constitutional amendment by which Article 31A(1)(a) was introduced is challenged by the petitioners on the ground that it damages the basic structure of the Constitution by destroying one of its basic features, namely, that no law can be made by the legislature so as to abrogate the guarantees afforded by Articles 14, 19 and 31.
It is tautologous to say so but, if we may so put it, the obliteration of the rights conferred by these Articles, which Article 31A (1) (a) brings about, is total and complete because, as the clear and unequivocal language of that Article shows, the application of these three articles stands totally withdrawn in so far as laws falling within the ambit of clause (a) are concerned.
It is no argument to say that the withdrawal of the application of certain articles in Part III in respect of laws of a defined category is not total abrogation of the articles because they will continue to apply to other situations and other laws.
In any given case, what is decisive 18 is whether, in so far as the impugned law is concerned, the rights available to persons affected by that law under any of the articles in Part III is totally or substantially withdrawn and not whether the articles, the application of which stands withdrawn in regard to a defined category of laws, continue to be on the Statute Book so as to be available in respect of laws of other categories.
We must there fore conclude that the withdrawal of the application of Articles 14, 19 and 31 in respect of laws which fall under clause (a) is total and complete, that is to say, the application of those articles stands abrogated, not merely abridged, in respect of the impugned enactments which indubitably fall within the ambit of clause (a).
We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution.
The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quint essential to the basic structure of the Constitution.
The judgment of this Court in Kesavananda Bharati (supra) provoked in its wake a multi storied controversy, which is quite understandable.
The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution.
The seven learned Judges chose their words and phrases to express their conclusion as effectively and eloquently as language can do.
But, at this distance of time any controversy over what was meant by what they said is plainly sterile.
At 'this distance of time ', because though not more than a little less than eight years have gone by since the decision in Kesavananda Bharati (supra) was rendered, those few years are packed with constitutional events of great magnitude.
Applying the ratio of the majority judgments in that epoch making decision, this Court has since struck down constitutional amendments which would otherwise have passed muster.
For example, in Smt.
Indira Gandhi vs Raj Narain article 329A(4) was held by the Court to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the Speaker, it destroyed the basic structure of the Constitution.
Ray C.J. based his decision on the ground that the 39th Amendment by which article 329A was introduced violated the Rule of Law 19 (p. 418); Khanna J. based his decision on the ground that democracy was a basic feature of the Constitution, that democracy contemplates that elections should be free and fair and that the clause in question struck at the basis of free and fair elections (pp. 467 and 471); Mathew J. struck down the clause on the ground that it was in the nature of legislation ad hominem (p. 513) and that it damaged the democratic structure of the Constitution (p. 515); while one of us, Chandrachud J., held that the clause was bad because it violated the Rule of Law and was an outright negation of the principle of equality which is a basic feature of the Constitution (pp. 663 665).
More recently, in Minerva Mills, (supra) clauses (4) and (5) of Article 368 itself were held unconstitutional by a unanimous Court, on the ground that they destroyed certain basic features of the Constitution like judicial review and a limited amending power, and thereby damaged its basic structure.
The majority also struck down the amendment introduced to Article 31C by section 4 of the 42nd Amendment Act, 1976.
The period between April 24, 1973, when the judgment in Kesavananda Bharati (supra) was delivered and now is of course a short span in our constitutional history but the occasional challenges which evoked equal responses have helped settle the controversy over the limitations on the Parliament 's power to amend the Constitution.
Khanna J. was misunderstood to mean that fundamental rights are not a part of the basic structure of the Constitution when he said in Kesavananda Bharati (supra): I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights.
(p. 688) But he clarified the true position in his judgment in the Election Case (supra) (pages 497 499), by drawing the attention of doubters to a significant qualification 'which he had engrafted on the above statement, at pages 688 and 758 of his judgment in Kesavananda Bharati (supra).
The qualification was that subject to the retention of the basic structure or framework of the Constitution, the power of amendment was plenary.
The law on the subject of the Parliament 's power to amend the Constitution must now be taken as well settled, the true position being that though the Parliament has the power to amend each and every article of the Constitution including the provisions of Part III, the amending power cannot be exercised so as to damage or destroy the basic structure of the Constitution.
It is by the application of this principle that we shall have to decide upon the 20 validity of the Amendment by which Article 31A was introduced.
The precise question then for consideration is whether section 4 of the Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution damages or destroys the basic structure of the Constitution.
In the work a day civil law, it is said that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original: you cannot by an amendment transform the original into the opposite of what it is.
For that purpose, a comparison is undertaken to match the amendment with the original.
Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law.
What were the basic postulates of the Indian Constitution when it was enacted ? And does the 1st Amendment do violence to those postulates ? Can the Constitution as originally conceived and the amendment introduced by the 1st Amendment Act not endure in harmony or are they so incongruous that to seek to harmonize them will be like trying to fit a square peg into a round aperture ? Is the concept underlying section 4 of the 1st Amendment an alien in the house of democracy? its invader and destroyer ? Does it damage or destroy the republican framework of the Constitution as originally devised and designed? These questions have a historical slant and content: and history can furnish a safe and certain clue to their answer.
The relevant part of the statement of Objects and Reasons of the 1st amendment says: During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights.
The citizen 's right to freedom of speech and expression guaranteed by article 19(1) (a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.
In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.
The citizen 's right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of the general public." While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place 21 the matter beyond doubt by a clarificatory addition to article 19(6).
Another article in regard to which unanticipated difficulties have arisen is article 31.
The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large numbers of people has been held up.
The main objects of this Bill are, accordingly, to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular.
The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise.
In Shankari Prasad vs Union of India, Patanjali Sastri, C.J. explained the reasons that led to the insertion of Articles 31A and 31B by the 1st Amendment thus: What led to that enactment is a matter of common knowledge.
The political party now in power, commanding as it does a majority of votes in the several State Legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zamindari Abolition Acts.
Certain Zamindars, feeling themselves aggrieved, attacked the validity of those Acts in Courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution.
The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively.
Appeals from those decisions are pending in this Court.
Petitions filed in this Court by some other zamindars seeking the determinations of the same question are also pending.
At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what they considered to be certain defects brought to light in the working of the Constitution, brought forward a Bill to amend the Constitution, which after undergoing amendments in various particulars, 22 was passed by the requisite majority as the Constitution (First Amendment) Act, 1951.
Article 31A was further amended with retrospective effect by the Constitution (Fourth Amendment) Act 1955, the object of which was explained as follows in the Statement of Objects and Reasons of that Amendment: It will be recalled that the zamindari abolition laws which came first in our programme of social welfare legislation were attacked by the interests affected mainly with reference to article 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation and place these laws above challenge in the courts, articles 31A and 31B and the Ninth Schedule were enacted by the Constitution (First Amendment) Act.
Subsequent judicial decisions interpreting articles 14, 19 and 31 have raised serious difficulties in the way of the Union and the States putting through other and equally important social welfare legislation on the desired lines, e.g., the following: (i) While the abolition of zamindaries and the numerous intermediaries between the State and the tiller of the soil has been achieved for the most part, our next objectives in land reform are the fixing of limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings.
(ii) x x x x x x (iii) x x x x x x (iv) x x x x x x It is accordingly proposed in clause 3 of the Bill to extend the scope of article 31A so as to cover these categories of essential welfare legislation.
The Constitution (First Amendment) Act was moved in the Provisional Parliament on May 12, 1951 as Bill No. 48 of 1951.
It was referred to a Select Committee and after the receipt of its report, it was debated in the Parliament on various dates in May and June.
It received the Presidential assent on June 18, 1951.
The speeches made in the Provisional Parliament by Jawaharlal Nehru and other national leaders who had participated in the freedom 23 movement show, in a significant measure, the genesis of the 1st Amendment and its avowed purpose.
While moving that the Bill be referred to a Select Committee, Jawaharlal Nehru said: This Bill is not a very complicated one: nor is it a big one.
Nevertheless, I need hardly point out that it is of intrinsic and great importance.
Anything dealing with the Constitution and change of it is of importance.
Anything dealing with Fundamental Rights incorporated in the Constitution is of even greater importance.
Therefore, in bringing this Bill forward I do so and the Government does so in no spirit of lightheartedness, in no haste, but after the most careful thought and scrutiny given to this problem.
I might inform the House that we have been thinking about this matter for several months, consulting people, State Governments, Ministers of Provincial Governments, consulting when occasion offered itself, a number of Members of this House, referring it to various Committees and the like and taking such advice from competent legal quarters as we could obtain, so that we have proceeded with as great care as we could possibly give to it.
We have brought it forward now after that care, in the best form that we could give it, because we thought that the amendments mentioned in this Bill are not only necessary, but desirable, and because we thought that if these changes are not made, perhaps not only would great difficulties arise, as they have arisen in the past few months, but perhaps some of the main purposes of the very Constitution may be defeated or delayed.
The Parliamentary Debates, Part II, Volumes XII and XIII (May 15 June 9, 1951) contain the record of the speeches made while the 1st Amendment was on the anvil.
We reproduce below the relevant extracts from the speeches of the then Prime Minister, Jawaharlal Nehru: The real difficulty which has come up before us is this.
The Constitution lays down certain Directive Principles of State Policy and after long discussion we agreed to them and they point out the way we have got to travel.
The Constitution also lays down certain Fundamental Rights.
Both are important.
The Directive Principles of State Policy represent a dynamic move towards a certain objective.
The Fundamental Rights represent something static, to preserve certain 24 rights which exist.
Both again are right.
But somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other.
A dynamic movement towards a certain objective necessarily means certain changes taking place that is the essence of movement.
(p. 8820) Now I shall proceed with the other article, the important one, namely article 31.
When I think of this article the whole gamut of pictures comes up before my mind, because this article deals with the abolition of the zamindari system, with land laws and agrarian reform.
I am not a zamindar, nor I am a tenant.
I am an outsider.
But the whole length of my public life has been intimately connected, or was intimately connected, with agrarian agitation in my Province.
And so these matters came up before me repeatedly and I became intimately associated with them.
Therefore I have a certain emotional reaction to them and awareness of them which is much more than merely an intellectual appreciation.
If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reform and the abolition of the zamindari system.
(p. 8830) Now apart from our commitment, 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 in justice in itself.
(pp 8830 8831) . it is patent that when you are out to remedy inequalities, you do not remedy inequalities by producing further inequalities.
We do not want anyone to suffer.
But, inevitably, in big social changes some people have to suffer.
(p. 8831) How are we to meet this challenge of the times ? How are we to answer the question: For the last ten or 20 years you have said, we will do it.
Why have you not done it ? It is not good for us to say: We are helpless before fate and the situation which we are to face at present.
Therefore, we have to think in terms of these big changes, and changes and the like and therefore we thought of amending article 31.
Ultimately we thought it best to propose additional articles 31A and 31B and in addition to that there is a Schedule 25 attached of a number of Acts passed by State Legislatures, some of which have been challenged 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 State should go ahead.
(pp. 8831 8832) The other day I was reading an article about India by a very eminent American and in that article which contained many correct statements and some incorrect statements, the author finished up by saying that India has very difficult problems to face but the most acute of them he said can be put in five words and those five words were: land, water, babies, cows and capital.
I think that there is a great deal of truth in this concise analysis of the Indian situation.
8832 8833) Now I come to articles 31, 31A and 31B.
May I remind the House or such Members of the House as were also Members of the Constituent Assembly of the long debates that we had on this issue.
Now the whole object of these articles in the Constitution was to take away and I say so deliberately to take away the question of zamindari and land reform from the purview of the courts.
That is the whole object of the Constitution and we put in some proviso etc.
in regard to article 31.
(p. 9082) What are we to do about it? What is the Government to do ? If a Government has not even the power to legislate to bring about gradually that equality, the Government fails to do what it has been commanded to do by this Constitution.
That is why I said that the amendments I have placed before the House are meant to give effect to this Constitution.
I am not changing the Constitution by an iota; I am merely making it stronger.
I am merely giving effect to the real intentions of the framers of the Constitution, and to the wording of the Constitution, unless it is interpreted in a very narrow and legalistic way.
Here is a definite intention in the Constitution.
This question of land reform is under article 31(2) and this clause tries to take it away from the purview of the courts and somehow article 14 is brought in That kind of thing is not surely the intention of the framers of the Constitution.
Here again I may say that the Bihar High Court held that view but the Allahabad and Nagpur High Courts held a contrary view.
That is true.
There is confusion and doubt.
Are we to wait for this confusion and 26 doubt gradually to resolve itself, while powerful agrarian movements grow up ? May I remind the House that this question of land reform is most intimately connected with food production.
We talk about food production and grow more food and if there is agrarian trouble and insecurity of land tenure nobody knows what is to happen.
Neither the zamindar nor the tenant can devote his energies to food production because there is instability.
Therefore these loud arguments and these repeated appeals in courts are dangerous to the State, from the security point of view, from the food production point of view and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary.
(pp 9082 9084) (Emphasis is supplied in the passages above) These statements were made by the Prime Minister on the floor of the house after what is correctly described as the most careful deliberation and a broad based consultation with diverse interests.
They were made in order to resolve doubts and difficulties and not with the intention of creating confrontation with any other arm of the Government or with the people.
They stand in a class apart and convey in a language characterized by logic and directness, how the Constitution was failing of its purpose and how essential it was, in order to remove glaring disparities, to pour meaning and content into the framework of the Constitution for the purpose of strengthening its structure.
Looking back over the past thirty years ' constitutional history of our country, we, as lawyers and Judges, must endorse the claim made in the speeches above that if Article 31A were not enacted, some of the main purposes of the Constitution would have been delayed and eventually defeated and that by the 1st Amendment, the constitutional edifice was not impaired but strengthened.
Conscious as we are that though extraneous aids to constitutional interpretation are permissible the views of the mover of a Bill are not conclusive on the question of its objects and purposes, we will consider for ourselves the question, independently, whether the 1st and the 4th Amendments damage or destroy the basic structure of the Constitution in any manner.
But before doing that, we desire only to state that these amendments, especially the 1st were made so closely on the heels of the Constitution that they ought indeed to be considered as a part and parcel of the Constitution itself.
These Amendments are not born of second thoughts and they do not reflect a fresh look at the Constitution in order to deprive the people of the gains of the Consti 27 tution.
They are, in the truest sense of the phrase, a contemporary practical exposition of the Constitution.
Article 39 of the Constitution directs by clauses (b) and (c) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
These twin principles of State policy were a part of the Constitution as originally enacted and it is in order to effectuate the purpose of these Directive Principles that the 1st and the 4th Amendments were passed.
In his address to the Allahabad Session of the Agri Economics Conference, Dr. D. R. Gadgil put a home truth succinctly by saying: "Among all resources, the supply of land is the most limited and the claimants for its possession are extremely numerous.
It is, therefore, obviously unjust to allow the exploitation of any large surface of land by a single individual unless other over whelming reasons make this highly desirable.
Further, in the light of the available supplies of land, labour and capital, it would be undesirable to encourage capital intensive method of production.
Moreover, whatever the economics of large scale management, they should, in the congested state of our countryside, accrue to collective or co operative bodies of cultivators rather than an individual family.
Lastly, in the context of the current socio political climate, re distribution of land would rather appear to be imperative.
" As stated in the Report of the Committee of the Panel on Land Reforms (Government of India, Planning Commission, 1959), the policy of imposition of ceiling on agricultural lands fulfils the following objectives: "(i) meeting the wide spread desire to possess land; (ii) reducing glaring inequalities in ownership and use of land; (iii) reducing inequalities in agricultural incomes, and (iv) enlarging the sphere of self employment.
" The Report of the Working Group on Land Reforms, 1978 (Ministry of Agriculture and Irrigation, Department of Agriculture) says that it was widely recognised that the imposition of ceiling on agricultural holdings and tenancy reforms constituted the substance of the agrarian reform movement and that, concentration of land in the hands of a 28 small group inhibits production, encourages concealed or irregular tenancies and results in unequal accesses to facilities of production in the rural sector.
In any economy with a preponderant agricultural sector, overall growth of the economy is largely determined by growth in agricultural production and elimination of constraints on production has to be a major national priority.
Studies in certain developing countries have established that the productivity of smaller holdings can conceivably be higher than that of larger holdings, primarily because the intensity of farming operations varies inversely with the size of the holding.
The Report of the Working Group says in paragraph 2.1 that whether or not this is true in all situations, the production system that denies opportunities of gainful employment to large numbers of workers and leads to pronounced distortions in the distribution of economic disadvantages, needs imperative over hauling.
In paragraph 2.2, the Report proceeds to say that in a predominantly agricultural society, there is a strong linkage between ownership of land and the person 's status in the social system.
Those without land suffer not only from an economic disadvantage, but a concomitant social disadvantage has also to be suffered by them.
In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land.
Agrarian reform therefore requires, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic considerations.
These then are the objectives of the Constitution and these the reasons that formed the motive force of the 1st Amendment.
Article 31A (1) could easily have appeared in the original Constitution itself as an illustration of its basic philosophy.
What remained to be done in the hope that vested interests will not distort the base of the Constitution, had to be undertaken with a sense of urgency and expediency.
It is that sense and sensitivity which gave birth to the impugned amendment.
The progress in the degeneracy of any nation can be rapid, especially in societies riven by economic disparities and caste barriers.
We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual.
Between these promises and the 1st Amendment there is discernible a nexus, direct and immediate.
Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them and dignity of their person by providing to them a near decent means of livelihood.
29 The First Amendment has thus made the constitutional ideal of equal justice a living truth.
It is like a mirror that reflects the ideals of the Constitution; it is not the destroyer of its basic structure.
The provisions introduced by it and the 4th Amendment for the extinguishment or modification of rights in lands held or let for purposes of agriculture or for purposes ancillary thereto, strengthen rather than weaken the basic structure of the Constitution.
The First Amendment is aimed at removing social and economic disparities in the agricultural sector.
It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally.
Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution.
It is impossible for any Government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law.
Thus, the adoption of 'family unit ' as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters.
That cannot, in our opinion, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality.
It seems to us ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holding.
The Note of the Panel set up by the Planning Commission in May 1959 on the adoption of 'family unit ' as the unit of application for the revised ceilings and the counter affidavit of Shri J. G. Karandikar, Deputy Secretary to the Government of Maharashtra show the relevance and efficacy of the family being treated as the real operative unit in the movement for agrarian reform.
Considering the Indian social milieu, the Panel came to the conclusion that agricultural ceiling can be most equitably applied if the base of application is taken as the family unit consisting of husband, wife and three minor children.
In view of this expert data, we are unable to appreciate how any law passed truly for implementing the objective of Article 31A(1) (a) can be open to challenge on the ground that it infringes Articles 14, 19 or 31.
For these reasons, we are of the view that the Amendment introduced by section 4 of the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution.
That Amendment must, therefore, be upheld on its own merits.
30 This makes it unnecessary to consider whether Article 31A can be upheld by applying the rule of stare decisis.
We have, however, heard long and studied arguments on that question also, in deference to which we must consider the alternate submission as to whether the doctrine of stare decisis can save Article 31A, if it is otherwise violative of the basic structure of the Constitution.
In Shankari Prasad vs Union of India (supra) the validity of the 1st Amendment which introduced Articles 31A & 31B was assailed on six grounds, the fifth being that Article 13(2) takes in not only ordinary laws but constitutional amendments also.
This argument was rejected and the 1st Amendment was upheld.
In Sajjansingh vs State of Rajasthan the Court refused to reconsider the decision in Shankari Prasad (supra), with the result that the validity of the 1st Amendment remained unshaken.
In Golaknath it was held by a majority of 6: 5 that the power to amend the Constitution was not located in Article 368.
The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368.
But the Court resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already made would be left undisturbed and that its decision will govern the future amendments only.
As a result, the 1st Amendment by which Articles 31A and 31B were introduced remained inviolate.
It is trite knowledge that Golaknath was overruled in Kesavananda Bharati (supra) in which it was held unanimously that the power to amend the Constitution was to be found in Article 368 of the Constitution.
The petitioners produced before us a copy of the Civil Misc.
Petition which was filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for were modified.
It appears thereform that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution.
The validity of the 1st Amendment was not questioned Khanna J., however, held while dealing with the validity of the unamended Article 31C that the validity of Article 31A was upheld in shukari Prasad,(supra) that its validity could not be any longer questioned because of the principle of stare decisis and that the ground on which the validity of Article 31A was sustained will be available equally for sustaining the validity of the first part of Article 31C (page 744).
Thus, the constitutional validity of Article 31A has been recognised in these four decisions, sometimes directly, sometimes indirectly and sometimes incidentally.
We may mention in passing, though it has 31 no relevance on the applicability of the rule of stare decisis, that in none of the three earlier decisions was the validity of Article 31A tested on the ground that it damaged or destroyed the basic structure of the Constitution.
That theory was elaborated for the first time in Kesavananda Bharati (supra) and it was in the majority judgment delivered in that case that the doctrine found its first acceptance.
Though Article 31A has thus continued to be recognised as valid ever since it was introduced into the Constitution, we find it somewhat difficult to apply the doctrine of stare decisis for upholding that Article.
In Ambika Prasad Mishra vs State of U.P. this very Bench delivered its judgment on May 9, 1980 rejecting the challenge to the validity of the 'Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 '.
But, the question as to whether Article 31A can be upheld by applying the doctrine of stare decisis was not decided in that case.
In fact, the broad consensus among the members of the Court that the question of vires of Articles 31A, 31B & 31C (unamended) will be decided in the other cases, is reflected in the following observation specifically made by one of us, Brother Krishna Iyer, J., who spoke for a unanimous Court: "In this judgment, we side step the bigger issue of the vires of the Constitutional amendments in Articles 31A, 31B and 31C as they are dealt with in other cases disposed of recently".
(p. 721).
Since the question of vires of these three articles was not dealt with by Brother Krishna Iyer in his judgment on behalf of the Court, we are, as previously arranged amongst us, dealing with that question in this judgment.
At page 722 of the report (paragraph 5), Brother Krishna Iyer has reaffirmed this position in these words: "Thus we get the statutory perspective of agrarian reform and so, the constitutionality of the Act has to be tested on the touchstone of Article 31 A which is the relevant protective armour for land reform laws.
Even here, we must state that while we do refer to the range of constitutional immunity Article 31A confers on agrarian reform measures we do not rest our decision on that provision.
Independently of Article 31 A, the impugned legislation can withstand constitutional invasion and so the further challenge to Article 31 A itself is of no consequence".
32 Krishna Iyer J. has observed in the same paragraph that "The extreme argument that Article 31 A itself is void as violative of the basic structure of the Constitution has been negatived by my learned Brother, Bhagwati J., in a kindred group of cases of Andhra Pradesh".
the citation of that group of cases being Thumati Venkaiah vs State of A.P.
But, in that judgment too, one of us, Brother Bhagwati, who spoke for the unanimous Court, did not refer to the vires of Articles 31A, 31B and 31C.
It will thus be clear that neither the one or the other of us, that is to say neither Brother Bhagwati nor Brother Krishna Iyer, dealt with the question of vires of Articles 31A, 31B and 31C which we are doing by this judgment.
It has become necessary to make this clarification in view of an observation by Brother Krishna Iyer in the very same paragraph 5 of the aforesaid judgment in Ambika Prasad Mishra that the decision in Kesavananda Bharati (Supra) on the validity of Article 31A, "binds, on the simple score of stare decisis. " Brother Krishna Iyer clarified the position once again by a further caveat in the same paragraph to this effect: ". .as stated earlier, we do not base the conclusion on Article 31A".
The doctrine of stare decisis is the basis of common law.
It originated in England and was used in the colonies as the basis of their judicial decisions.
According to Dias, the genesis of the rule may be sought in factors peculiar to English legal history, amongst which may be singled out the absence of a Code.
The Normans forbore to impose an alien code on a half conquered realm, but sought instead to win as much wide spread confidence as possible in their administration of law, by the application of near uniform rules.
The older the decision, the greater its authority and the more truly was it accepted as stating the correct law.
As the gulf of time widened, says Dias, Judges became increasingly reluctant to challenge old decisions.
The learned author cites the example of Bracton and Coke who always preferred older authorities.
In fact, Bracton had compiled a Notebook of some two thousand cases as material for his treatise and employed some five hundred of them.
The principle of stare decisis is also firmly rooted in American Jurisprudence.
It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability.
The legal system, it is 33 said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise.
It is important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case.
When the weight of the volume of the decisions on a point of general public importance is heavy enough, courts are inclined to abide by the rule of stare decisis, leaving it to the legislature to change long standing precedents if it so thinks it expedient or necessary.
In Burnet vs Coronado Oil & Gas Co., Justice Brandeis stated that 'stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right '.
While dealing with the subject of stare decisis, Shri H. M. Seervai in his book on 'Constitutional Law of India, has pointed out how important it is for judges to conform to a certain measure of discipline so that decisions of old standing are not overruled for the reason merely that another view of the matter could also be taken.
The learned author has cited an Australian case in which it was said that though the court has the power to reconsider its own decisions, that should not be done upon a mere suggestion that some or all of the members of the later court may arrive at a different conclusion if the matter were res integra.
The learned author then refers to two cases of our Supreme Court in which the importance of adherence to precedents was stressed.
Jagannadhadas J. said in the Bengal Immunity Case that the finality of the decisions of the Supreme Court, which is the Court of last resort, will be greatly weakened and much mischief done if we treat our own judgments, even though recent, as open to reconsideration.
B. P. Sinha J. said in the same case that if the Supreme Court were to review its own previous decisions simply on the ground that another view was possible, the litigant public may be encouraged to think that it is always worthwhile taking a chance with the highest Court of the land.
In I.T.O. Tuticorin vs T.S.D. Nadar, Hegde J. said in his dissenting Judgment that the Supreme Court should not overrule its decisions except under compelling circumstances.
It is only when the Court is fully convinced that public interest of a substantial character would be jeopardised by a previous 34 decision, that the Court should overrule that decision.
Reconsideration of the earlier decisions, according to the learned Judge, should be confined to questions of great public importance.
Legal problems should not be treated as mere subjects for mental exercise.
An earlier decision may therefore be overruled only if the Court comes to the conclusion that it is manifestly wrong, not upon a mere suggestion that if the matter were res integra, the members of the later court may arrive at a different conclusion.
These decisions and texts are of high authority and cannot be overlooked.
In fact, these decisions are themselves precedents on the binding nature of precedents.
It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand.
Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis.
It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision.
In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis.
Therefore, the reason why Article 31A was upheld in the earlier decisions, if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule.
But, there are four principal reasons why we are not disposed to invoke the rule of stare decisis for deciding upon the constitutionality of Article 31A.
In the first place, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution.
Its unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the ideals which inspired the framing of the Constitution.
The second reason why we do not want to resort to the principle of stare decisis while determining the validity of Article 31A is that neither in Shankari Prasad(Supra) nor in Sajjan Singh(Supra), nor in Golak Nath(Supra) and evidently not in Kesavananda Bharati(Supra) was the question as regards the validity as such of Article 31A raised or decided.
As stated earlier, Shankari Prasad(Supra) involved the larger question as to whether constitutional amendments fall within 35 the purview of Article 13(2) of the Constitution.
It was held that they did not.
In Sajjan Singh (Supra), the demand for reconsideration of the decision in Shankari Prasad(Supra) was rejected, that is to say, the Court was not inclined to consider once again whether constitutional amendments are also comprehended within the terms of Article 13(2).
Golak Nath (Supra) raised the question as to where the amending power was located and not whether this or that particular amendment was valid.
In none of these decisions was the validity of Article 31A put in issue.
Nor indeed was that question considered and decided in any of those cases.
A deliberate judicial decision made after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, and the precedent by long recognition may mature into stare decisis.
But these cases cannot be considered as having decided, reasons apart, that the 1st Amendment which introduced Article 31A into the Constitution is valid.
Thirdly, the history of the World 's constitutional law shows that the principle of stare decisis is treated as having a limited application only.
Justice William Douglas said in New York vs United States that it is a wise policy to restrict the principle of stare decisis to those areas of the law where correction can be had by legislation.
Otherwise, the constitution loses the flexibility which is necessary if it is to serve the needs of successive generations.
It is for that reason again that Justice Frankfurter said in U.S. vs International Boxing Club that the doctrine of stare decisis is not 'an imprisonment of reason '.
Older the standing of a decision, greater the provocation to apply the rule of stare decisis.
A possible mischief arising out of this position was pointed out by Justice Benjamin Cardozo in MacPherson vs Buick Motor Co. by saying that precedents drawn from the days of travel by stage coach do not fit the conditions of travel today.
And alive to that possibility, Justice Brandeis said in State of Washington vs W. C. Dawson & Co. that stare decisis is merely a wise rule of action and is not a universal, inexorable command. "The instances in which the court has disregarded its admonition are many".
In fact, the full form of the principle, "stare decisis et non quieta movere" which means "to stand by decisions and not to disturb what is settled", was put by Coke in its classic English version as: "Those things which have been so often adjudged ought to rest in peace".
Such being the justification of the rule, it was said in James Monroe vs Frank Pape that the rele 36 vant demands of stare decisis do not preclude consideration of an interpretation which started as an unexamined assumption.
We have already pointed out how the constitutional validity of Article 31A has to be deemed to have been upheld in Shakari Prasad (supra) by a process of inferential reasoning, the real question therein being whether the expression 'law ' in Article 13(2) includes law made in the exercise of constituent power.
The fourth reason is the one cited by Shri Tarkunde that on principle, rules like stare decisis should not be invoked for upholding constitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but future laws also.
Supposing Article 31A were invalid on the ground that it violates the Constitution 's basic structure, the fact that its validity has been recognised for a long time cannot justify its protection being extended to future laws or to laws which have been recently passed by the legislature.
The principle of stare decisis can apply, if at all, to laws protected by these articles, if those laws have enjoyed the protection of these articles for a long time, but the principle cannot apply to the articles themselves.
The principle of stare decisis permits the saving of laws the validity of which has been accepted or recognised over the years.
It does not require or sanction that, in future too, laws may be passed even though they are invalid or unconstitutional.
Future perpetration of illegality is no part of the doctrine of stare decisis.
Our disinclination to invoke the rule of stare decisis for saving Article 31A does not really matter because we have upheld the constitutional validity of that Article independently on its own merits.
Coming to the validity of Article 31B, that article also contains a device for saving laws from challenge on the ground of violation of fundamental rights.
Putting it briefly, Article 31B provides that the Acts and Regulations specified in the Ninth Schedule shall not be deemed to be void or ever to have become void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution.
The provisions of the article are expressed to be without prejudice to the generality of the provisions in Article 31A and the concluding portion of the article supersedes any judgment, decree or order of any court or tribunal to the contrary.
This article was introduced into the Constitution by section 5 of the Constitution (First Amendment) Act 1951, Article 31A having been introduced by section 4 of the same Amendment.
37 Article 31B has to be read along with the Ninth Schedule because it is only those Acts and Regulations which are put in that Schedule that can receive the protection of that article.
The Ninth Schedule was added to the Constitution by section 14 of the 1st Amendment Act, 1951.
The device or mechanism which sections 5 and 14 of the 1st Amendment have adopted is that as and when Acts and Regulations are put into the Ninth Schedule by Constitutional amendments made from time to time, they will automatically, by reason of the provisions of Article 31B, received the protection of that article.
Items 1 to 13 of the Ninth Schedule were put into that Schedule when the 1st Amendment was enacted on June 18, 1951.
These items are typical instances of agrarian reform legislations.
They relate mostly to the abolition of various tenures like Maleki, Taluqdari, Mehwassi, Khoti, Paragana and Kulkarni Watans and of Zamindaris and Jagirs.
The place of pride in the Schedule is occupied by the Bihar Land Reforms Act, 1950, which is item No. 1 and which led to the enactment of Article 31A and to some extent of Article 31B. The Bombay Tenancy and Agricultural Lands Act, 1948 appears as item 2 in the Ninth Schedule.
Items 14 to 20 were added by the 4th Amendment Act of 1955, items 21 to 64 by the 17th Amendment Act 1964, items 65 and 66 by the 29th Amendment Act of 1972, items 67 to 86 by the 34th Amendment Act 1974, items 88 to 124 by the 39th Amendment Act 1975 and items 125 to 188 by the 40th Amendment Act 1976.
The Ninth Schedule is gradually becoming densely populated and it would appear that some planning is imperative.
But that is another matter.
We may only remind that Jawaharlal Nehru had assured the Parliament while speaking on the 1st Amendment that there was no desire to add to the 13 items which were being incorporated in the Ninth Schedule simultaneously with the 1st Amendment and that it was intended that the Schedule should not incorporate laws of any other description than those which fell within items 1 to 13.
Even the small list of 13 items was described by the Prime Minister as a 'long schedule '.
While dealing with the validity of Article 31A we have expressed the view that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that article.
Though the same considerations must govern the question of the validity of Article 31B, we would like to point out that just as there are significant similarities between Articles 31A and 31B, there is a significant dissimilarity too.
Article 31A enables the passing of laws of the description mentioned in clauses (a) to (e), in violation of the guarantees afforded by Article 14 and 19.
The Parliament is not required, in the exercise of its constituent power or otherwise, to undertake an examination of the laws 38 which are to receive the protection of Article 31A.
In other words, when a competent legislature passes a law within the purview of clauses (a) to (e), it automatically receives the protection of Article 31A, with the result that the law cannot be challenged on the ground of its violation of Articles 14 and 19.
In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection, and secondly, going a little further than Article 31A, it affords protection to Schedule laws against all the provisions of Part III of the Constitution.
No act can be placed in the Ninth Schedule except by the Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution.
Thus, Article 31B read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the schedule, no matter of what character, kind or category they may be.
Putting it briefly, whereas Article 31A protects laws of a defined category, Article 31B empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein.
The 39th Amendment which was passed on August 10, 1975 undertook an incredibly massive programme to include items 87 to 124 while the 40th Amendment, 1976 added items 125 to 188 to the Ninth Schedule in one stroke.
The necessity for pointing out this distinction between Articles 31A and 31B is the difficulty which may apparently arise in the application of the principle of stare decisis in regard to Article 31B read with the Ninth schedule, since that doctrine has been held by us not to apply to Article 31A.
The fourth reason given by us for not applying the rule of stare decisis to Article 31A is that any particular law passed under clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule.
We propose to apply to Article 31B read with the Ninth Schedule the selfsame test.
We propose to draw a line, treating the decision in Kesavanda Bharati (supra) as the landmark.
Several Acts were put in the Ninth schedule prior to that decision on the supposition that the power of the Parliament to amend the Constitution, was wide and untrammeled.
The theory that the parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati (supra).
This is one reason for upholding the laws incorporated into the Ninth schedule before April 24, 1973, on which date the judgment in 39 Kesavananda Bharti (Supra) was rendered.
A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31.
We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society.
The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, (Supra) mostly pertain to laws of agrarian reforms.
There are a few exceptions amongst those 66 items, like items 17, 18, 19 which relate to Insurance, Railways and Industries.
But almost all other items would fall within the purview of Article 31A (1)(a).
In fact, items 65 and 66, which were inserted by the 29th Amendment, are the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 respectively, which were specifically challenged in Kesavananda Bharati (supra).
That challenge was repelled.
Thus, in so far as the validity of Article 31B read with the Ninth schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B.
Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution.
Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31B for the plain reason that in the face of the judgment in Kesavananda Bharati (supra) there was no justification for making additions to the Ninth schedule with a view to conferring a blanket protection on the laws included therein.
The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.
That leaves for consideration the challenge to the constitutional validity of the unamended Article 31C. As we have stated at the beginning of this judgment, Article 31C was introduced by the Constitution (Twenty fifth Amendment) Act, 1971.
Initially, it sought to give protection to those laws only which gave effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
No such law could be deemed 40 to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14, 19 and 31.
The concluding portion of the unamended article which gave conclusiveness to certain declarations was struck down in Kesavananda Bharati, (supra) Shri M. N. Phadke, who led the argument on behalf of the petitioners, built a formidable attack against the vires of Article 31C. But, with respect to the learned counsel, the effort is fruitless because the question as regards the validity of Article 31C is no longer res integra.
The opening clause of Article 31C was upheld by the majority in Kesavananda Bharati (Supra) and we do not quite see how the petitioners can be permitted to go behind that decision.
The learned counsel addressed to us an interesting argument on the principles governing the theory of precedent, and he argued that, in the welter of judgments delivered in Kesavananda Bharati, (Supra) it is impossible to discern a ratio because different learned Judges gave different reasons in support of the conclusions to which they came.
It is well known that six learned Judges who were in minority in Kesavananda Bharti (Supra) upheld the first part of Article 31C, which was a logical and inevitable consequence of their view that there were no inherent or implied limitations on the Parliament 's power to amend the Constitution.
Khanna, J. did not subscribe to that view but, all the same, he upheld the first part of Article 31C for different reasons.
The question of validity of the Twenty fifth Amendment by which the unamended Article 31C was introduced into the Constitution was specifically raised before the Court and the arguments in that behalf were specifically considered by all the six minority Judges and by Khanna, J.
It seems to us difficult, in these circumstances, to hold that no common ratio can be culled out from the decision of the majority of the seven Judges who upheld the validity of Article 31C. Putting it simply, and there is no reason why simple matters should be made complicated, the ratio of the majority judgments in Kesavananda Bharati (Supra) is that the first part of Article 31C is valid.
Apart from this, if we are right in upholding the validity of Article 31A on its own merits, it must follow logically that the unamended Article 31C is also valid.
The unamended portion of Article 31C is not like an unchartered ship.
It gives protection to a defined and limited category of laws which are passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39.
These clauses of Article 39 contain directive principles which are vital to the well being of the country and the welfare of its people.
Whatever we have said in respect of the 41 defined category of laws envisaged by Article 31A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to clauses (b) and (c) of Article 39.
It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19.
Article 31 is now out of harm 's way.
In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of Article 39 will fortify that structure.
We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in clauses (b) and (c) of Article 39.
The challenge made to the validity of the first part of the unamended Article 31C therefore fails.
A small, though practically important, clarification seems called for at the end of this discussion of the validity of Article 31A, 31B and 31C.
We have held that laws included in the Ninth Schedule on or after April 24, 1973, will not receive the protection of Article 31B ipso facto.
Those laws shall have to be examined individually for determining whether the constitutional amendments by which they were put in the Ninth Schedule, damage or destroy the basic structure of the Constitution in any manner.
The clarification which we desire to make is that such an exercise will become otiose if the laws included in the Ninth Schedule on or after April 24, 1973 fall within the scope and purview of Article 31A or the unamended Article 31C. If those laws are saved by these Articles, it would be unnecessary to determine whether they also receive the protection of Article 31B read with the Ninth Schedule.
The fact that Article 31B confers protection on the schedule laws against "any provisions" of Part III and the other two Articles confer protection as against Articles 14 and 19 only, will make no real difference to this position since, after the deletion of Article 31, the two provisions of Part III, which would generally come into play on the question of validity of the relevant, laws, are Articles 14 and 19.
Apart from these challenges to the various constitutional amendments, the petitioners have also challenged the validity of the Constitution (fortieth Amendment) Act, 1976, by which the Amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 were placed in the Ninth Schedule.
It may be recalled that the Principal Act was amended by these Amending Acts.
The normal term of five years of the Lok Sabha was due to expire on March 18, 1976 but, its life was extended for one year by the House of the People (Extension of Duration) Act, 1976.
Yet another Act was passed by the Parliament, The House of the People (Extension of Duration) Amendment Act, 1976, by which the 42 term of the Lok Sabha was further extended by another year.
The 40th Amendment was passed by the Lok Sabha on April 2, 1976 during its extended term.
Since by the aforesaid two Acts, the life of the Lok Sabha was extended while both the proclamations of emergency were in operation, the petitioners challenge the proclamations of the state of Emergency, dated December 3, 1971 and June 25, 1975 as also the two Acts by which the term of the Lok Sabha was extended.
The 42nd Amendment inserted clauses 4 and 5 in Article 368 with effect from January 3, 1975.
Which was also during the extended term of the Lok Sabha.
That Amendment too is challenged for that reason.
We have struck down that amendment unanimously by our judgment in Minerva Mills (supra) for the reason that it damages the basic structure of the Constitution.
Thus, we are now left to consider the validity of: (1) The Promulgation of the state of Emergency by the proclamations dated December 3, 1971 and June 25, 1975; (2) The House of the People (Extension of Duration) Act, 1976; (3) The House of People (Extension of Duration) Amendment Act, 1976, and (4) The Constitution (Fortieth Amendment) Act, 1976.
The validity of all these is inter connected and the focus of the challenge is the aforesaid proclamations of Emergency.
The validity of the proclamations of Emergency is challenged mainly by Shri A. K. Sen, Shri M. N. Phadke, Dr. N. M. Ghatate and by Shri P. B. Sawant who appeared in person in Writ Petition No. 63 of 1977.
It is contended by the learned counsel and Shri P. B. Sawant that the Courts have jurisdiction to enquire whether the power conferred on the President by Article 352 to proclaim an emergency is properly exercised as also the power to determine whether there are any circumstances justifying the continuance of the emergency.
There may sometimes be justification for declaring an emergency but if an emergency, properly declared, is allowed to continue without justification, the party in power, according to counsel, can perpetuate its rule and cling to power by extending the life of the Parliament from time to time.
The provisions of Article 352 should, therefore, be interpreted in a liberal and progressive manner so that the democratic ideal of the Constitution will be furthered and not frustrated.
It is urged that the threat to the security of India having completely disap 43 peared soon after the Pakistani aggression in December 1971, the continuance of the emergency proclaimed on December 3, 1971, must be held to be unjustified and illegal.
A list of dates has been furnished to us by counsel in support of their argument that the emergency declared on December 3,1971, could not legitimately be continued in operation for a period of more than six years.
On December 3,1971 the president issued the proclamation of emergency in face of the aggression by Pakistan, stating that a grave emergency existed whereby the security of the country was threatened by external aggression.
Both the Houses of Parliament approved the proclamation on the 4th, on which date the Defence of India Act, 1971, came into force.
The Defence of India Rules, 1971, framed under section 22 of the Defence of India Act, came into force on the 5th.
On December 16, 1971; the Pakistani forces made an unconditional surrender in Bangladesh and on the 17th the hostilities between India and Pakistan came to an end.
In February 1972, General Elections were held to the State Assemblies.
On August 28, 1972 the two countries entered into an agreement for the exchange of prisoners of war, and by April 30, 1974 the repatriation of the prisoners of war was completed.
On August 16, 1974 the Presidential Election was held in India.
On June 25, 1975 came the second proclamation of emergency; in the wake of which a notification was issued under Article 359 on June 27 suspending the enforcement of the fundamental rights under Articles 14, 21 and 22.
On February 16, 1976 the House of People (Extension of Duration) Act was passed.
The normal term of the Lok Sabha expired on March 18, 1976.
On April 2, 1976, the Lok Sabha passed the 40th Amendment Act by which the Maharashtra Land Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160.
On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a further period of one year.
The 42nd Amendment Act was passed on November 12, 1976.
The Lok Sabha was dissolved on January 18, 1977 and both the emergencies were revoked on March 21, 1977.
The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it.
We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance 44 which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975.
Section 48 of the Constitution (Forty second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency.
By the newly added clause (3), the President cannot issue a proclamation under clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing.
Under clause (4), every proclamation issued under Article 352 has to be laid before each House of Parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament.
Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation.
The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer.
In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here.
In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action.
The danger to the security of the country was clear and present.
Therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation.
From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed.
But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful.
That inference is somewhat non judicious to draw.
Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency.
They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities.
But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed.
It was suggested that the proclamation of June 25, 1975 was actuated by mala fides.
But there 45 too, evidence placed before us of mala fides is neither clear nor cogent.
Thus, in the first place, we are not disposed to decide the question as to whether the issuance of a proclamation of emergency raises a justiciable issue.
Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other.
And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill equipped to pronounce.
Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year "while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation".
The second Act of Extension continues to contain the same provision.
It is contended by the petitioners that the proclamation of December 3, 1971 should have been revoked long before February 16, 1976 and that the proclamation of June 25, 1975 wholly uncalled for and was mala fide.
Since the precondition on which the life of the Parliament was extended is not satisfied, the Act, it is contended, is ineffective to extend the life of the Parliament.
We find it difficult to accept this contention.
Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed.
It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non est.
The evidence produced before us is insufficient for recording a decision on either of these matters.
It must follow that the two Acts by which the duration of the Lok Sabha was extended are valid and lawful.
The 40th and the 42nd Constitutional Amendments cannot, therefore, be struck down on the ground that they were passed by a Lok Sabha which was not lawfully in existence.
These then are our reasons for the order which we passed on May 9, 1980 to the following effect: "(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 46 which substituted a new clause (1), sub clause (a) to (e), for the original clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament.
(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus: "31B x x x x x x In keshvananda Bharati decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.
We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional.
Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure.
We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act Regulation included in the 9th Schedule by a Constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitutional or its basic structure as reflected in Articles 14, 19 or 31, will become otiose.
(3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment), Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati.
Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.
(4) All the Writ Petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs.
The stay orders granted in these matters will 47 stand vacated.
We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos.
656 660 of 1977; 512 533 of 1977; and 505 to 511 of 1977.
The costs will be payable to the Union of India and the State of Maharashtra in equal measure.
(5) Writ Petition No. 63 of 1977 (Baburao Samant vs Union of India) will be set down for hearing".
This Court made an Order on 9th May, 1980 disposing of the writ petitions challenging the constitutional validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961 as amended from time to time by various subsequent acts.
This Order was in the following terms: "(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub clause (a) to (e), for the original clause(1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament.
(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus: "31B: x x x x x In Keshvananda Bharati decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.
We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional.
Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the 48 Parliament since they damage the basic or essential features of the Constitution or its basic structure.
We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose.
(3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati.
Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.
(4) All the writ petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs.
The stay orders granted in these matters will stand vacated.
We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos.
656 660 of 1977; 512 533 of 1977; and 505 to 511 of 1977.
The costs will be payable to the Union of India and the State of Maharashtra in equal measure.
(5) Writ Petition No. 63 of 1977 (Baburao Sawant vs Union of India) will be set down for hearing".
No reasons were given in support of this Order but it was stated that reasons would be given later.
While delivering my dissenting judgment in Minerva Mills Ltd. vs Union of India (1980)3 SCC 625 on 31st July 1980, I gave my reasons for subscribing to this Order.
It is therefore not necessary to reiterate those reasons over again but they may be treated as forming part of this judgment and a copy of my judgment in Minerva Mills case may be attached as an annexure to this judgment.
I may point out that pages 1 to 6 and pages 17 to 96 of the judgment in Minerva Mills case set out the reasons for the making of the order dated 9th May 1980 and I re affirm those reasons.
I have had the advantage of reading the judgment just delivered by the learned Chief Justice, but I find myself unable to agree with him that "it is somewhat difficult to apply the doctrine of stare decisis 49 for upholding "Article 31A and that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that Article.
" I have given reasons in my judgment for applying the doctrine of stare decisis for sustaining the constitutional validity of Article 31A, but apart from the reasons given by me in support of my view, I find that in Ambika Prasad Mishra vs State of U.P.(1) the same Bench which is deciding the present writ petitions has upheld the constitutional validity of Article 31A by applying the doctrine of stare decisis.
Krishna Iyer, J. speaking on behalf of a unanimous court said in that case: "It is significant that even apart from the many decisions upholding Article 31A, Golak Nath case decided by a Bench of 11 Judges, while holding that the Constitution (First Amendment) Act exceeded the constituent power still categorically declared that the said amendment and a few other like amendments would be held good based on the doctrine of prospective over ruling.
The result, for our purpose, is that even Golak Nath case has held Article 31A valid.
The note struck by later cases reversing Golak Nath does not militate against the vires of Article 31A. Suffice it to say that in the Kesavananda Bharati case Article 31A was challenged as beyond the amendatory power of Parliament and, therefore, invalid.
But after listening to the Marathon erudition from eminent counsel, a 13 Judge Bench of this Court upheld the vires of Article 31 A in unequivocal terms.
That decision binds, on the simple score of stare decisis and the constitutional ground of Article 141.
Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent.
In this view, other submissions sparkling with creative ingenuity and presented with high pressure advocacy, cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic Fundamental Rights case." (Emphasis supplied.) These observations show beyond doubt that this very Bench held Article 31 A to be constitutionally valid "on the simple score of stare decisis".
It is true that Krishna Iyer, J. stated in the beginning of his judgment in Ambika Prasad Mishra 's case: "In this judgment, we side step the bigger issue of the vires of the constitutional amendments in Articles 31 A, 50 31B and 31 C as they are dealt with in other cases disposed of recently." This statement was made presumably because the learned Judge must have thought at the time when he prepared his judgment in this case that the judgment in the present writ petitions would be given before his judgment came to be delivered and on this assumption, the learned Judge did not consider it necessary to discuss the entire range of arguments relating to the constitutional validity of Articles 31 A, 31 B and 31 C.
But so far as Article 31A was concerned, the learned Judge did proceed to hold that Article 31A was constitutionally valid "on the simple score or stare decisis" and the other four learned Judges subscribed to this view.
It is also true that Krishna Iyer, J. did not rest his judgment entirely on the protective armour of Article 31A and pointed out that "independently of Article 31 A, the impugned legislation can withstand constitutional invasion" and sustained the validity of the impugned legislation on merits, but even so he did hold that Article 31 A was constitutionally valid on the principle of stare decisis and observed that "the comprehensive vocabulary of that purposeful provision obviously catches within its protective net the present Act, and broadly speaking, the undisputed effect of that Article is sufficient to immunise the Act against invalidation to the extent stated therein".
I cannot, therefore, despite the high regard and great respect which I have for the learned Chief Justice, agree with him that the doctrine of stare decisis cannot be invoked for upholding the validity of Article 31 A, since that would be in direct contradiction of what has been held by this very Bench in Ambika Prasad Mishra vs State of U.P. (supra).
KRISHNA IYER, J.
While I agree with the learned Chief Justice, I must state that certain observations regarding articles 31A, 31B and 31C are wider than necessary and I do not go that far despite the decision in Minerva Mills case.
I also wish to add a rider regarding the broader observations with the application of stare decisis in sustaining article 31A. I have expressly upheld article 31A by reliance on stare decisis and cannot practise a volte face without convincing juristic basis to convert me to a contrary position.
I know that Justice Holmes has said: "Don 't be" consistent, "but be simply true".
I also remind myself of the profound reflection of Ralph Waldo Emerson: 51 A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.
With consistency a great soul has simply nothing to do.
He may as well concern himself with his shadow on the wall.
Speak what you think now in hard words and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today. "Ah, so you shall be sure to be misunderstood.
" Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh.
To be great is to be misunderstood.
And yet, I hold to what I have earlier stated in Ambika Prasad Misra.
(1) What the learned Chief Justice has in mind, if, with respect, I may venture to speak is that in constitutional issues over stress on precedents is inept because we cannot be governed by voices from the grave and it is proper that we are ultimately right rather than be consistently wrong.
Even so, great respect and binding value are the normal claim of rulings until reversed by larger benches.
That is the minimum price we pay for adoption of the jurisprudence of binding precedents.
I leave it at that because the learned Chief Justice has held the impugned Act good in its own right.
Enough unto the day is the evil thereof.
V.D.K. Petitions dismissed.
| IN-Abs | A ceiling on agricultural holdings was imposed in Maharashtra by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 27 of 1961, which was brought into operation on January 26, 1962.
The ceiling fixed by the Act (Principal Act) was lowered and certain other amendments were made to that Act by Acts 27 of 1975, 47 of 1975 and 2 of 1976.
The validity of these Acts was challenged in the Bombay High Court.
The Division Bench at Nagpur repelled that challenge by its judgment dated August 13, 1976 in Vithalrao Udhaorao Uttarwar vs State of Maharashtra, AIR 1977 Bombay 99.
The appeals filed against the said decision were dismissed by the Supreme Court by its judgment in Dattatraya Govind Mahajan vs State of Maharashtra ; The only point urged in these appeals was that the Principal Act.
as amended, was void being violative of the second proviso to Article 31A(1), in so far as it created an artificial "family unit" and fixed the unit on the agricultural holdings on such family units.
The argument that the violation of the particular proviso deprived the impugned laws of the protection conferred by Article 31A was rejected by the Court on the view that even if the impugned provisions were violative of the second proviso they would receive the protection of Article 31B by reason of the inclusion of the Principal Act and the amending Acts in the Ninth Schedule.
The Court considered whether, in fact.
the provisions of the impugned Acts were violative of the second proviso and held that it was entirely for the Legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court could not assume the role of an economic adviser for pronouncing upon the wisdom of such policy.
The second proviso to Article 31A(1) was therefore held not to have been contravened.
The judgment of this Court in these appeals was delivered on January 27, 1977 while the proclamation of emergency was in operation.
On the revocation of that proclamation, petitions were filed in the Court by the appellants 2 praying for the review of the judgment in Dattaraya Govind Mahajan on the ground that several contentions, which were otherwise open to them for assailing the constitutional validity of the impugned Acts, could not be made by reason of the emergency and that they should be permitted to make those contentions since the emergency was lifted.
Fresh Writ Petitions were also filed in this Court in which those contentions were put forward.
The Court acceded to the request for the review and hence the petitions.
Dismissing the petitions, the Court ^ HELD : (Majority view) Per Chandrachud, C.J. (On his own behalf and on behalf of Krishna Iyer, Tulzapurkar and Sen, JJ.) A. (1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect and sec.
3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub clauses (a) to (e) for the original clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional being within the constituent power of the Parliament.
[9 F G=45 H, 46 A B] (2) The Agricultural Ceiling Acts, fall squarely within the terms of clause (a) of Article 31A(1).
Those Acts provide for the extinguishment and modification of rights in an "estate", the expression "estate" being defined by clause (2) (a) (iii) to mean "any land held or let for purposes of agriculture or for purposes ancillary thereto. ".
It must follow, as a necessary corollary, that the impugned Acts are entitled to the protection of Article 31A(1)(a) with the result that their provisions cannot be deemed, and there fore cannot be declared, to be void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Articles 14, 19 or 31.
[17 A C] (3) If a constitutional provision, which deprives the petitioners of the benefit and protection of Articles 14, 19 and 31 is invalid, the petitioners will be entitled to challenge the impugned laws on the ground that they are inconsistent with or that they take away or abridge the rights conferred by Part III of the Constitution.
Article 13(2) has a sensitive touchstone.
Not only does it mandate that the State shall not make any law which takes away or abridges the rights conferred by Part III but, it provides that any law made in contravention of the clause shall, to the extent of the contravention, be void.
Mere abridgement, that is to say curtailment, that is to say curtailment, and not necessarily abrogation that is to say total deprivation, is enough to produce the consequence provided for by Article 13(2).
[17 C E] (4) Though the withdrawal of the application of Articles 14, 19 and 31 in respect of laws which fall under clause (a) is total and complete, that is to say, the application of those articles stands abrogated, not merely abridged, in respect of impugned enactments which indubitably fall within the ambit of clause (a), every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution.
The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of 3 Part III is in issue and, whether what is withdrawn is quint essential to the basic structure of the Constitution.
[18 B D] (5) The true position of law on the subject of Parliament 's power to amend the Constitution is that though the Parliament has the power to amend each and every Article of the Constitution including the provisions of Part III the amending power cannot be exercised so as to damage or destroy the basic structure of the Constitution.
[19 G H] H. H. Kesavananda Bharati vs State of Kerala, [1973] Supp.
SCR 1; Smt.
Indira Nehru Gandhi vs Raj Narain, and Minerva Mills Ltd. vs Union of India & Ors., [1981] 1 SCR p. 206, referred to.
(6) If Article 31A were not enacted, some of the main purposes of the Constitution would have been delayed and eventually defeated and that by the First Amendment, the constitutional edifice was not impaired but strengthened.
The First and the Fourth Amendments, especially the First were made so closely on the heels of the Constitution that they ought indeed to be considered as a part and parcel of the Constitution itself.
These amendments are not born of second thoughts and they do not reflect a fresh look at the Constitution in order to deprive the people of the gains of the Constitution.
They are in the truest sense of the phrase, a contemporary practical exposition of the Constitution.
[26 E F, G H, 27A] (7) Article 39 of the Constitution directs by clauses (b) and (c) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
These twin principles of State policy were a part of the Constitution as originally enacted and it is in order to effectuate the purpose of these Directive Principles that the First and the Fourth Amendments were passed.
[27 A B] (8) Article 31A(I) could easily have appeared in the original Constitution itself as an illustration of its basic philosophy.
What remained to be done in the hope that vested interests will not distort the base of the Constitution, had to be undertaken with a sense of urgency and expediency.
It is that sense and sensitivity which gave birth to the impugned amendment.
The progress in the degeneracy of any nation can be rapid, especially in societies riven by economic disparities and caste barriers.
We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political; equality of status and of opportunity; and, last but not the least, dignity of the individual.
Between these promises and the First Amendment there is discernible a nexus, direct and immediate.
Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them the dignity of their persons by providing to them a near decent means of livelihood.
[28 E H] (9) The First Amendment has made the constitutional ideal of equal justice a living truth.
It is like a mirror that reflects the ideals of the Constitution, it is not the destroyer of its basic structure.
The provisions introduced by it and the Fourth Amendment for the extinguishment or modification of rights in lands held or let for purposes of agriculture or for purposes ancillary thereto, strengthen rather than weaken the basic structure of the Constitution.
[29 A B] 4 The First Amendment is aimed at removing social and economic disparities in the agricultural sector.
It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally.
Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution.
It is impossible for any Government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law.
Thus, the adoption of "family unit" as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters.
That cannot, however, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality.
It seems ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings.
[29 B E] The note of the Panel set up by the Planning Commission in May 1959 on the adoption of "family unit" as the unit of application for the revised ceilings and the counter affidavit of the Deputy Secretary to the Govt.
of Maharashtra show the relevance and efficacy of the family being treated as the real operative unit in the movement for agrarian reform.
Considering the Indian social milieu, the Panel came to the conclusion that agricultural ceiling can be most equitably applied if the base of application is taken as the family unit consisting of husband, wife and three minor children.
In view of this expert data a law passed truly for implementing the objective of Article 31A(l)(a) cannot be open to challenge on the ground that it infringes Articles 14,19 or 31.
[29 E G] B. (1).
The Amendment introduced by sec.
4 of the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution.
That Amendment must, therefore, be upheld on its own merits.
[29 H] (2) The validity of Article 31A cannot be upheld by applying the doctrine of stare decisis, though the Article has continued to be recognised as valid ever since it was introduced into the Constitution.
The constitutional validity of Article 31A has been recognised in the four decisions, namely.
Shankari Prasad vs Union of India, ; , 95; Sajjansingh vs State of Rajasthan,[1965] 1 SCR 933; I.C. Golakanath vs Union of India & Ors,[1967] 2 SCR 762 and H. H. Kesavananda Bharati Sripadagalavaru vs State of Kerala, sometimes directly, sometimes indirectly and sometimes incidentally.
It may be mentioned, though it has no relevance on the applicability of the rule of stare decisis, that in none of the three earlier decisions was the validity of Article 31A tested on the ground that it damaged or destroyed the basic structure of the Constitution.
That theory was elaborated for the first time in Kesavananda Bharati and it was in the majority judgment delivered in that case that the doctrine found its first acceptance.
Even in the two latest cases, namely, Ambika Prasad Mishra vs State of U.P., [1980] 3 SCR p. 1159, Thumati Venkaiah vs State of A.P., ; the question as to whether Article 31A can be upheld by applying the doctrine of stare decisis was never decided.
Nor was the question of vires of Articles 31A, 31B and 31C (unamended) considered in these decisions.[30G H, 31A B, C, 32 B C] 5 It is true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand.
Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis.
It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision.
In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis.
Therefore, the reason why Article 31A was upheld in the earlier decisions.
if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule.[34 C G] But there are four principal reasons for not invoking the rule of stare decisis for deciding upon the constitutionality of Article 31A.
In the first place, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution.
The second reason is that neither in Shankari Prasad, nor in Sajjan Singh nor in Golak Nath and evidently not in Kesavananda Bharati, was the question as regards the validity as such of Article 31A raised or decided.
Thirdly, the history of the World 's constitutional law shows that the principle of stare decisis is treated as having a limited application only.
The fourth reason is that on principle rules like stare decisis should not be invoked for upholding constitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but future laws also.
The principle of stare decisis can apply, if at all, to laws protected by these articles, if those laws have enjoyed the protection of these articles for a long time, but the principle cannot apply to the articles themselves.
The principle of stare decisis permits the saving of laws the validity of which has been accepted or recognised over the years.
It does not require or sanction that, in future too, laws may be passed even though they are invalid or unconstitutional.
Future perpetration of illegality is no part of the doctrine of stare decisis.[34 F H, 35 A B, D, 36 B E] Burnet vs Coronado Oil & Gas Co., ; , 406; Tramways Case (No. 1) 1914 (CLR) 54@ 58; Bengal Immunity Case ; Income Tax officer, Tuticorin vs T. section D. Nadar; , ; New York vs United States, ; , 590 591 [1946]; U.S. vs International Boxing Club, ; , 249 [1955]; Mac Pherson vs Buick Motor Co., , 391 [1916]: State of Washington vs W. C. Dawson & Co., ; , 238 [1924] James.
Monoroe vs Frank Pape, U.S. 492, 523, 528, quoted with approval.
C. (1) All amendments to the Constitution which were made before April 24, 1973 and by which the Ninth Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein are valid and constitutional.
Amendments to the Constitution made on or after April 24, 1973 by which the Ninth Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulation therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure in view of the Judg 6 ment in Kesavananda Bharati.
If any Act or Regulation included in the Ninth Schedule by a constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the Forty Second Amendment, the challenge to the validity of the relevant constitutional Amendment by which that Act or Regulation is put in the Ninth Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose.
[10 C F=46 C F] (2) Article 31B provides that the Acts and Regulations specified in the Ninth Schedule shall not be deemed to be void or ever to have become void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution.
The provisions of the Article are expressed to be without prejudice to the generality of the provisions in Article 31A and the concluding portion of the Article supersedes any judgment, decree or order of any court or tribunal to the contrary.
This Article was introduced into the Constitution by section 5 of the Constitution (First Amendment) Act, 1951, Article 31A having been introduced by section 4 of the same Amendment.
Article 31B has to be read along with the Ninth Schedule because it is only those Acts and Regulations which are put in that Schedule that can receive the protection of that article.
The Ninth Schedule was added to the Constitution by section 14 of the First Amendment Act, 1951.
The device or mechanism which sections 5 and 14 or the First Amendment have adopted is that as and when Acts and Regulations are put into the Ninth Schedule by constitutional amendments made from time to time, they will automatically by reason of the provisions of Article 31B, receive the protection of that article.
[36F H, 37A B] The view of the Court that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of Article 31A, must govern the question of the validity of Article 31 B.
But just as there are significant similarities between Articles 31A and 31B, there is a significant dissimilarity too.
Article 31A enables the passing of laws of the description mentioned in clauses (a) to (e), in violation of the guarantee afforded by Articles 14 and 19.
In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection, and secondly, it affords protection to Schedule laws against all the provisions of Part III of the Constitution.
No Act can be placed in the Ninth Schedule except by the Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution.
Thus, Article 31B read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the Schedule, no matter of what character, kind or category they may be.
Putting it briefly, whereas Article 31A protects laws of a defined category, Article 31B empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein.
Thus the fourth reason for not applying the rule of stare decisis to Article 31A that any particular law passed under clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule, applies to Article 31B read with the Ninth Schedule by the self same test.[37 G H, 38 B D, E F] (3) The decision in Kesavananda Bharati must be treated as a landmark.
The theory that the Parliament cannot exercise its amending power so as to 7 damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati.
This is one reason for holding the laws incorporated into the Ninth Schedule before April 24,1973, on which date the judgment in Kesavananda Bharati was rendered.
The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, mostly pertains to laws of agrarian reforms.[38 G H, 39A, B] D. (1) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (Forty Second Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Kesavananda Bharati.
Article 31C, as it stood prior to the Constitution (Forty Second Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.
Once it is held that Article 31A is valid on its own merits, it must follow logically that the unamended Article 31C is also valid.
The unamended portion of Article 31C is not like an unchartered ship.
It gives protection to a defined and limited category of laws which are passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39.
It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19.
In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clause (b) and (c) of Article 39 will fortify that structure.
[10 F G, 40 G H, 41 A C] E. (1) The normal term of the Lok Sabha expired on March 18, 1976.
On April 2, 1976, the Lok Sabha passed the Fortieth Amendment Act by which the Maharashtra Land Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160.
On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a further period of one year.
The Forty Second Amendment Act was passed on November 12, 1976.
The Lok Sabha was dissolved on January 18, 1977 and both the emergencies dated December 3, 1971 and June 25, 1975 were revoked on March 21, 1977.
[43 E G] In so far as the proclamation of December 3, 1971 is concerned, there was manifest justification for that course of action.
The danger to the security of the country was clear and present.
From the various dates and events mentioned and furnished to the Court, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed.
But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed.
[44 D F, H] (2) The two Acts, the House of the People (Extension of Duration) Act, Act 30 of 1976 and the House of the People (Extension of Duration) Amendment Act 109 of 1976, by which the duration of the Lok Sabha was extended are valid and lawful.
The Fortieth and the Forty Second Constitutional Amendments cannot, therefore, be struck down on the ground that they were passed by a Lok Sabha which was not lawfully in existence.
[45 F G] Section 2 of the first of these Acts, Act 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year "while the Pro 8 clamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation.
" The second Act of Extension continues to contain the same provision.
Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed.
Neither the first Proclamation can be deemed not to be in existence, nor can the second Proclamation be held to have been issued mala fide and, therefore non est, since the evidence produced before the Court is insufficient for recording a decision on either of these matters.
[45 C F] Per Bhagwati, J. (Contra) The doctrine of stare decisis can be invoked for sustaining the constitutional validity of Article 31A. [50 E] Minerva Mills vs Union of India, [1981] 1 SCR p. 206 reiterated; Ambika Prasad Mishra vs State of U.P., [1980] 3 SCR p. 1159, followed.
Per Krishna Iyer, J. (Contra) Applying the principle of stare decisis, Article 31A is valid.
In constitutional issues over stress on precedents is inept.
Even so, great respect and binding value are the normal claim of rulings until reversed by larger Benches.
[51 C D] Ambika Prasad Mishra vs State of U.P., [1980] 3 SCR p. 1159 reiterated.
|
ition No. 1543 of 1977.
Under Article 32 of the Constitution of India.
WITH W.P. No. 1542/77 and C.A. No. 1379/77, W.P. No. 838/78.
2360 2363/78 and S.L.P. (C) Nos.
1727/79 & 2333 & 2530 of 1978 AND S.L.P. (C) No. 2539 of 1978 and W.P. No. 228 of 1979.
M.S. Gupta for the petitioners in WPs.
1542, 1543, 838 & CA 1379/77.
Arvind Kumar, Mrs. Lakshmi Arvind & Prakash Gupta for the petitioners in SLPs.
1727, 2333 & 2530.
P.R. Mridul, R.K. Jain & Sukumar Sahu for the petitioners in WPs 2360 63.
Veda Vyasa, S.K. Gupta & A.K. Sharma for the petitioners in SLP 2599 and WP 228.
B.P. Singh Chauhan, Addl Adv.
U.P. and O.P. Rana the appearing respondents.
1162 The Judgment of the Court was delivered by KRISHNA, IYER, J.
This judgment deals with a flood of cases from Uttar Pradesh relating to limitation on agricultural land holdings and specifically disposes of the writ petitions, civil appeals and petitions for special leave listed below.
The pervasive theme of this litigative stream is not anti land reform as such but the discriminatory laws in the relevant legislation which make it 'unlaw ' from the constitutional angle.
The march of the Indian nation to the Promised Land of Social Justice is conditioned by the pace of the process of agrarian reform.
This central fact of our country 's progress has made land distribution and its inalienable ally, the ceiling on land holding, the cynosure of legislative attention.
And when litigative confrontation with large holders has imperilled the implementation of this vital developmental strategy, Parliament, in exercise of its constituent power, has sought to pre empt effectively and protect impregnably such statutory measures by enacting article 31A as the very first amendment in the very first year after the Constitution came into force.
Consequent on the Constitution (First Amendment) Act, 1951, this court repelled the challenges to land reform laws as violative of fundamental rights in State of Bihar vs Kameshwar Singh but the constant struggle between agrarian reform legislation and never say die litigation has led to a situation where every such enactment has been inevitably accompanied by countless writ petitions assailing its vires despite article 31A, not to speak of the more extensive Chinese walls like articles 31B, 31C and 31D.
The forensic landscape is cluttered up in this court with appeals and writ petitions and petitions for leave to appeal, the common feature of each of which is a challenge to the validity of one or other of the State laws imposing ceiling on land holding in an inegalitarian milieu of the landed few and the landless many.
Of course, the court is bound to judge the attack.
On the legislative projects for acquisition and distribution, on their constitutional merits and we proceed to as say the task with special reference to the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (abbreviated hereafter as the Act).
Several counsel have argued and plural objections have been urged but we will grapple with only those contentions which have been seriously pressed and omit others which have either been only formally mentioned or left to lie in silent 1163 peace, or but feebly articulated.
In this judgment, we side step the bigger issue of the vires of the constitutional amendments in Articles 31 A, 31 and 31 as they are dealt with in other cases disposed of recently.
Indeed, the history of land reform, in its legislative dimension has been a perennial race between judicial pronouncements and constitutional amendments.
The anatomy of the Act must be scanned as a preliminary exercise so that the Constitutional infirmities alleged may be appreciated in the proper setting.
The long title gives the primary purpose of the Act as imposition of ceilings on land holdings in Uttar Pradesh and the Preamble amplifies it further.
All this is tersely spelt out in the Statement of objects and Reasons which runs thus: "With a view to provide for more equitable distribution of land by making the same available to the extent possible to landless agricultural labourers and to provide for cultivation on cooperative basis and to conserve part of the available resources in land so as to increase the production and up reserve stock of foodgrains against lean years by carrying on cultivation on scientific lines in State owned farms, it is expedient to impose Ceiling on existing large land holdings.
It is necessary to provide some land to the village communities for their common needs, such as establishment of fuel and fodder reserves.
The Bill is therefore being introduced to promote the economic interest of the weaker section of community and to subserve the common good.
" Thus we get the statutory perspective of agrarian reform and so, the constitutionality of the Act has to be tested on the touchstone of Art 31A which is the relevant protective armour for land reform laws.
Even here, we must state that while we do refer to the range of constitutional immunity article 31A confers on agrarian reform measures we do not rest our decision on that provision.
Independently of article 31A, the impugned legislation can withstand constitutional invasion and so the further challenge to article 31A itself is of no consequence.
The comprehensive vocabulary of that purposeful provision obviously catches within its protective net the present Act and, broadly speaking, the antiseptic effect of that Article is sufficient to immunise the Act against invalidation to the extent stated therein.
The extreme argument that article 31A itself is void as violative of the basic structure of the Constitution has been negatived by my learned brother, Bhagwati, J. in a kindred group of cases of Andhra Pradesh.
The amulet of article 31A is, therefore, potent, so far as it goes, but beyond its ambit it is still possible, as counsel have endeavoured, to 1164 spin out some sound argument to nullify one section or the other.
Surely, the legislature cannot run amok in the blind belief that article 31A is omnipotent.
We will examine the alleged infirmities in due course.
It is significant that even apart from the many decisions upholding article 31A, Golak Nath 's case decided by a Bench of 11 Judges, while holding that the Constitution (First Amendment) Act exceeded the constituent power still categorically declared that the said amendment and a few other like amendments would be held good based on the doctrine of prospective over ruling.
The result, for our purpose, is that even Golak Nath 's case has held article 31A valid.
The note struck by later cases reversing Golaknath does not militate against the vires of article 31A. Suffice it to say that in the Kesavananda Bharati 's case.
Article 31A was challenged as beyond the amendatory power of Parliament and, therefore, invalid.
But, after listening to the marathon erudition from eminent counsel, a 13 Judges Bench of this Court upheld the vires of Article 31A in unequivocal terms.
That decision binds, on the simple score of stare decisis and the constitutional ground of article 141.
Every now discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent.
In this view, other submissions sparkling with creative ingenuity and presented with high pressure advocacy, cannot persuade us to re open, what was laid down for the guidance of the nation as a solemn pre posion by the epic Fundamental Rights case.
From Kameshwar Singh and Golak Nath (supra) through Kesavananda (supra) and Kanan Devan to Gwalior Rayons and after article 31A has stood judicial scrutiny although, as stated earlier, we do not base the conclusion on article 31A.
Even so, it is fundamental that the nation 's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding threat of forensic blowup.
This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national.
crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shakeup.
It is surely wrong to prove Justice Roberts of the United States Supreme Court right when he said.
1165 "The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket good for this day and train only.
It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion.
should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions".
It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered and fallaciously reasoned".
And none of these misfortunes can be imputed to Bharati 's case (supra).
For these reasons, we proceed to consider the contentions of counsel on the clear assumption that article 31A is good.
Its sweep is wide and indubitably embraces legislation on land ceilings.
Long years ago, in Ranjit vs State, a Constitution Bench, speaking through Hidayatullah, J., dwelt on the wide amplitude of article 31A, referred to Precedents of this Court on agrarian reform vis a vis article 31A and concluded that equitable distribution of lands, annihilation of monopoly of ownership by imposition of ceiling and regeneration of the rural economy by diverse planning and strategies are covered by the armour of article 31A. We may quote a part: The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few on the other, but envisages also the raising of economic standards and bettering rural health and social conditions.
Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc.
which (sic) enure for the benefit of rural population must be considered to be an essential part of the redistribution of holdings and open lands to which no objection is apparently taken.
If agrarian reforms are to succeed, more distribu 1166 tion of lands to the landless is not enough.
There must be a proper planning of rural economy and conditions and a body like the village panchayat is best designed to promote rural welfare than individual owners of small portions of lands.
Further the village panchayat is an authority for purposes of part III as was conceded before us and it has the protection of article 31A because of this character even if the taking over of Shamlat deb amounts to acquisition.
The setting of a body or agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, ferrier, wheelwright, barber, washerman etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms.
It is a trite saying that India lives in villages and a scheme to make villages self sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceiling on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate.
This review has been reinforced by the later pronouncement of a Constitution Bench in the Gwalior Rayon Case, emphatically expressing support for the conceptual sweep of agrarian reform vis a vis article 31A.
The proposition, therefore, is invulnerable that article 31A repulses all invasion on "ceiling legislation" (armed with articles 14, 19 and 31).
The professed goal of the legislation is to maximise surplus lands for working out distributive justice and rural development, with special reference to giving full opportunity to the agrarian masses to become a major rural resource of the nation.
How to maximise surplus land ? By imposition of severe ceiling on ownership of land holdings consistently with the pragmatics of rural economies and the people 's way of life.
The pervasive, pivotal concepts are, therefore, ceilings on holdings and surrender of surplus land.
The working unit with reference to which the legal ceiling is set is the realistic family.
So, the flexible concept of 'family ' also becomes a central object of legislative definition.
Having regard to the diversity of family units among the various communities making up Indian society and having the object of the legislation as the guiding principle, the statute under consideration has given a viable and realistic definition of 'family ', with provision for some variables and special situations.
The machinery for implementing the statute is also set up with adjudicative powers, including appeals.
Compensation, with 1167 out invidious discrimination, has to be paid, according to the scheme, when surplus land is taken away and for the determination and payment of such compensation a whole chapter is devoted.
The disposal of land secured as surplus is, perhaps, the elimination of the legislative project.
and so, Chapter 4 stipulates the manner of disposal and settlement of surplus land.
Thus, we have the definitional provision in Chapter 1, followed by imposition of "ceilings" with ancillary provisions for exemption.
The judicial machinery for enforcement and the provisions for pre emption of manipulation and prevention of fraud on the statute, the assessment of compensation and its payment and the like have also been enacted in Chapters 2 and 3.
A miscellaneous chapter deals with a variety of factors, including offences and penalties, mode of hearing and appellate powers and kindred matters.
Inevitably, such a progressive legislation runs drastically contrary to the feudal ethos of the landed gentry and the investment intancts of the nouveau riche and green revolutionists.
Therefore, the holders who are hurt by the provisions of the Act have chosen to challenge their vires and they must succeed if the ground is good.
Since the legislature has plenary power to tile extent conferred by the Constitution, the attack has to be based, and, deed has been on constitutional infirmities which If sound, must shoot down the Act.
By way of aside, one might query whether agrarian reform, with all the fanfare and trumpet, has seriously taken off the ground or is still in the hangar? Any way, the court can only pronounce, the Executive must execute.
We will now proceed to formulate the points which, according to counsel, are fatal to the legislation and proceed to scan them in due course.
Various miniscule matters have been raised in the plethora of cases largely founded on some real or fancied inequity, inequality, legislative arbitrariness or sense of injustice.
Speaking generally and with a view to set the record straight, injustice is conditioned by the governing social philosophy, the prevailing economic approach and, paramountly, by the constitutional parameters which bind the court and the community.
The Indian Constitution is a radical document, a charter or socio politico economic change and geared to goals spelt out in the objectives Resolution which commits the nation to a drive towards an egalitarian society, a note struck more articulately by the adjective 'socialist ' to our Republic introduced by a recent Amendment and survives after Parliament, differently composed, had altered the 42nd Amendment.
This backdrop suggests that agrarian legislation, organised as egalitarian therapy, must be judged, not meticulously for every indi 1168 vidual injury but by the larger standards of abolition of fundamental in equalities, frustration of basis social fairness and shocking unconscionableness.
This process involves detriment to vested interests.
The perfect art of plucking the goose with the least squealing is not a human gift.
A social surgery, supervised by law, minimises, not eliminates, individual hurt while promoting community welfare.
The court, in its interpretative role, can neither be pachydermic nor hyperreactive when landholders, here and there lament about lost land.
We will examine the contentions form this perspective, without reference to articles 31B, C and D. Justice Cardozo has a message for us when he says: Law and obedience to law are facts confirmed everyday to us all in our experience of life.
If the result of a definition is to make them seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities.
Shri Mridul, who led the arguments, mounted a three point attack.
Article 31A(1) (ii) was the target of an obscure submission which counsel, with characteristic fairness, did not press at a later stage.
Linked up with it was queer nexus between article 21 and.
the right to property, deprivation of which was contended to be an unreasonable procedure somehow falling within the lethal spell of article 21.
Proprietary personality was integral to personal liberty and a may hem inflicted on a man 's property was an amputation of his personal liberty.
Therefore, land reform law, if unreasonable, violates article 21 as expansively construed in Maneka Gandhi.
The dichotomy between personal liberty, in article 21, and proprietary status, in articles 31 and 19 is plain, whatever philosophical justification or pragmatic realisation it may possess in political or juristic theory.
Maybe, a penniless proletarian, is unfree in his movements and has nothing to lose except his chains.
But we are in another domain of constitutional the jurisprudence.
Of course, counsel 's resort to article 21 is prompted by the absence of mention of article 21 in article 31A and the illusory hope of inflating.
Maneka Gandhi to impart a healing touch to those whose property is taken by feigning loss of personal liberty when the State takes only property.
Maneka Gandhi is no universal nostrum or cure all, when all other arguments fail! The last point which had a quaint moral flavour was that transfers of landed property, although executed after the dates specified in the 1169 Act were unreasonably invalidated by the Act even when there was no "mens rea" vis a vis the ceiling law on the part of the transferor and this was violative of article 19(1) (f) and of article 14 as arbitrary.
A facet of over inclusiveness which breaches article 14 was also urged.
It is perfectly open to the legislature, as ancillary to its main policy to prevent activities which defeat the statutory purpose, to provide for invalidation of such actions.
When the alienations are invalidated because they are made after a statutory date fixed with a purpose, there is sense in this prohibition.
Otherwise, all the lands would have been transferred and little would have been left by way of surplus.
Let us read the text of s.5(6) which is alleged to be bad being over inclusive or otherwise anomalous.
The argument, rather hard to follow and too subtle for the pragmatic of agrarian law, may be clearer when the provision is unfurled.
Section 5(6) runs thus: In determining the ceiling area applicable to a tenure holder, any transfer of land made after the twenty fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account .
Provided that nothing in this sub section shall apply to: (a) a transfer in favour of any person(including Government) referred to in sub section(2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument riot being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of the family.
There is no blanket ban here but only qualified invalidation of certain sinister assignments etc.
Counsel weaves gossamer webs which break on mere judicial touch when he argues that transfer 'in good faith and for adequate consideration ' have been unconstitutionally exempted.
The bizarre submission is that 'adequate consideration ' is an arbitrary test.
We reject it without mere discussion.
The second limb of the submission is that while section (6) directs the authority to ignore certain transfers it does not void it.
The further spin off adroitly presented by counsel is that the provision violates the second proviso to article 31.
It is a little too baffling to follow and we dismiss the submission as hollow.
The provision in s.5(6), when read in the light of the Provisos, is fair and valid.
1170 Counsel 's further argument is to quote his own words that "the impugned provisions do not establish a reasonable procedure" because: "The expression 'in good faith ' is over inclusive and takes within its sweep situations which are not only very different but which may not have any nexus or legitimate relationship with the objects and purposes of the ceiling law . " We are hardly impressed by it and find no substance on it.
There is no question of morality or constitutionality even if the clause may be a little over drawn.
On the contrary, it is legislative folly not to preserve, by appropriate preventives and enacted contraceptives, the 'surplus ' reservoir of land without seepage or spill over.
It is legal engineering, not moral abandonment.
Indeed, the higher morality or social legitimacy of the law requires a wise legislature to prescribe transfers, lest the surplus pool be drained off by a rush of transactions.
Maybe, individual hardship may happen, very sad in some instances.
But every great cause claims human martyrs! Poor consolation for the victim but yet a necessary step if the large owners are not to play the vanishing trick or resort to manipulated alienations! After all, this ban comes into force only on a well recognised date, not from an arbitrary retroactive past.
We cannot discover anything which is morally wrong or constitutionally anathematic in such an embargo.
Article 19(1) (f) is not absolute in operation and is subject, under Art.19(6), to reasonable restrictions such as the one contained in s.5(6).
We do not think there is merit in the triple submissions spun by Shri Mridul.
Even on the merits, the transfers have been rightly ignored, the vendees who are the grandsons have been held to be not bona fide transferees for adequate consideration; and the findings are of fact and concurrent.
We over rule the grounds of grievance as unsustainable.
In sum, without reliance on article 31A, Shri Mridul 's contentions can be dismissed as without merit.
We will now consider the mini arguments of the other counsel some of them do merit serious consideration by the court and even where direct relief does not flow from the judicial process, State action to avoid anomalies may well be called for in the light of genuine hardships.
Shri Veda Vyas, appearing in W.P. No. 228 of 1979 and SLP No. 2599 of 1978, pleaded powerfully for gender justice and sex 1171 equity because, according to his reading, the Act had a built in masculine bias in the definition of 'family unit ' and allocation of ceiling on holdings, and therefore, perpetrated unconstitutional discrimination.
Indeed, his case illustrated the anti woman stance of the statute, he claimed.
The submission is simple, the inference is inevitable but the invalidation does not follow even if article 31A is not pressed into service to silence article 14.
We will formulate the objections and examine their merit from the constitutional perspective.
Maybe, there is force in the broad generalisation that, notwithstanding all the boasts about the legendary glory of Indian womanhood in the days of yore and the equal status and even martial valour of heroines in Indian history, our culture has suffered a traumatic distortion, not merely due to feudalism and medievalism, but also due to British imperialism.
Indeed, the Freedom.
Struggle led by Mahatma Gandhi, the story of social reforms inspired by spiritual leaders like Swami Vivekananda and engineered by a galaxy of great Indians like Raja Rammohan Roy, Swami Dayananda Saraswati and Maharishi Karve and the brave chapter of participation in the Independence Movement by hundreds and thousands of woman patriots who flung aside their unfree status and rose in revolt to overthrow the foreign yoke, brought back to Indian womanhood its lustrous status of equal partnership with Indian manhood when the country decided to shape its destiny and enacted a Constitution in that behalf.
Our legal culture and Corpus juris, partly a heritage of the past, do contain strands of discrimination to set right which a commission elaborately conducted enquiries and made a valuable report to the Central Government.
Shri Veda Vyas may be right in making sweeping submissions only to this limited extent but when we reach the concrete statutory situation and tackle the specific provisions in the Act, his argument misses the mark.
A better appreciation of his contention must be preceded by excerption of two definitions and consideration of the concepts they embody.
Section 3(7) defines 'family ' thus: 'family ' in relation to a tenure holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters); This definition is incomplete without contextually reading section 5(3) and so we quote the provision which, in the view of Shri Veda Vyas, enwombs the vice of discrimination against women.
Sec.5(3)(a) & (b) & Explanation: Subject to the provisions of sub sections (4), (5), (6) and (7) the ceiling area for purposes of sub section (1) shall be (a) In the case of a tenure holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not them selves tenure holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land; (b) in the case of a tenure holder having family of more than five members, 7.30 hectares of irrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure holders or who held less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares subject to a maximum of six hectares of such additional land Explanation: The expression 'adult son ' in clause (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure holders or who hold land less than two hectares of irrigated land; The anti female kink is patent in that the very definition of family discloses prejudice against the weaker sex by excluding adult daughters without providing for any addition to the ceiling on their account.
In the case of an adult son, section 5(3) (a) of the Act provides for the addition of two hectares of irrigated land for each of his tenure holder 's) sons where the family has a strength of less than five.
Section 5(3)(b) similarly provides for two additional hectares of irrigated land for each of his (tenure holder 's) adult sons where the strength of the family is more than 5.
It must be remembered that this addition is on account of the fact that there are adult sons, even though they are not tenure holders or held less than two hectares or none.
This previlege of adding to the total extent that the family of a tenure 1173 holder may keep is denied to an adult daughter, even though unmarried, and, therefore, dependent on the family for that a married son stands on a different footing from a married daughter, what justice is there in baring a dependent unmarried daughter in the cold? Assuming without admitting, Shri Veda Vyas further urges that having regard to the and the increasing prevalence of unmarried adult daughters in families these days, the discrimination is not theoretical but real because no minor girl can now marry.
Another similar invidious provision is the definition of tenure holder.
Ceiling on holdings is fixed with reference to tenure holders.
We wonder whether the Commission on the Status of Women or the Central Governments or the State Governments have considered this aspect of sex discrimination in most land reforms laws, but undoubtedly the State should be fair especially to the weaker sex.
Adult damsels should not be left in distress by progressive legislations geared to land reforms.
This criticism may have bearing on the ethos of the community and the attitude of the legislators, but we are concerned with the constitutionality of the provision.
Maybe, in this age of nuclear families and sex equal human rights it is illiberal and contrary to the zeit geist to hark back to history 's dark pages nostalgically and disguise it as the Indian way of life with a view to deprive women of their undeniable half.
articles 14 and 15 and the humane spirit of the Preamble rebel against the de facto denial of proprietary personhood of woman hood.
But this legal sentiment and jural value must not run riot and destroy provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life 's realism is legislatively pragmatised.
Such a scheme may marginally affect gender justice but does not abridge, even a wee bit, the rights of women.
If land holding and ceiling thereon are organised with the paramount purpose of maximising surpluses without maiming woman 's ownership no submission to destroy this measure can be permitted using sex discrimination as a means to sabotage what is socially desirable.
No woman s property is taken away any more than a man 's property.
Section 5(3) reduces daughters or wives to the status of stooges.
It forbids excessive holdings having regard to rural realities of agricultural life. 'Family ' is defined because it is taken as the unit for holding land a fact of extant societal life which cannot be wished away.
This is only a tool of social engineering in working out the scheme of setting limits to ownership.
Section 5(3) does not confer any property on an adult son nor withdraw any property from an adult daughter.
That provision shows a concession to a tenure holder who has propertyless 1174 adult sons by allowing him to keep two more hectares per such son.
The propertyless son gets no right to a cent of land on this score but the father is permitted to keep some more of his own for feeding this extra mouth.
If an unmarried daughter has her own land, this legislation does not deprive her any more than a similarly situated unmarried son.
Both are regarded as tenure holders.
The singular grievance of a chronic spinster vis a vis a similar bachelor may be that the father is allowed by section 5(3) to hold an extra two hectares only if the unmarried major is a son.
Neither the daughter nor the son gets any land in consequence and a normal parent will look after an unmarried daughter with an equal eye.
Legal injury can arise only if the daughter 's property is taken away while the son 's is retained or the daughter gets no share while the son gets one.
The legislation has not done either.
So, no tangible discrimination can be spun out.
Maybe, the legislature could have allowed the tenure holder to keep another two hectares of his on this basis of the existence of an unmarried adult daughter.
It may have grounds rooted in rural realities to do so.
The court may sympathize but cannot dictate that the land holder may keep more land because he has adult unmarried daughters.
That would be judicial legislation beyond permissible process.
The same perspicacious analysis salvages the provision regarding a wife.
True, section 3(17) makes the husband tenure holder even then the wife is the owner.
So long as the land is within the sanctioned limit it is retained as before without affecting ownership or enjoyment.
But where it is in excess, the compensation for the wives land, if taken away as surplus, is paid to her under Chapter III, And even in the choice of land, to declare surplus, the law, in section 12A, has taken meticulous care to protect the wife.
The husband being treated as tenure holder even when the wife is the owner is a legislative device for simplifying procedural dealings.
When all is said and done, married woman in our villages do need their husband 's services and speak through them in public places, except, hopefully in the secret ballot expressing their independent political choice.
Some of us may not be happy with the masculine flavour of this law but it is difficult to hold that rights of women are unequally treated, and so, the war for equal gender status has to be waged elsewhere.
Ideologically speaking, the legal system, true to the spirit of the Preamble and article 14, must entitle the Indian women to be equal in dignity, property and personality, with man.
It is wrong if the land reforms law denudes woman of her property.
If such be the provision, it may be unconstitutional because we cannot expect that "home is the girl 's prison and the woman 's work house" But it is not.
1175 It must be said in fairness, that the legislature must act on hard realities, not on glittering ideals which fail to work.
Nor can large landholders be allowed to outwit socially imperative land distribution by putting female discrimination as a mask.
There is no merit in these submissions of Sri Veda Vyas.
In the view we have taken, we need not discuss the soundness of the reasoning in the ruling in Sucha Singh vs State(1).
The High Court was right, if we may say so with respect, in its justification of the section when it observed: The subject of legislation is the person owning or holding land and not his or her children.
Section 5 provides for the measure of permissible are that a person with one or more adult sons will be allowed to select out of the area owned or held by him and his children, whether male or female, have not been given any right to make a selection for himself or herself.
It cannot.
therefore, be said that this section makes a discrimination between a son and a daughter in respect of his or her permissible area on the ground of sex alone.
The legislature is the best Judge to decide how much area should be left as permissible area with each owner or holder of land.
Insofar as no distinction between a male and a female holder or owner of the land has been made in respect of the permissible area in any given circumstances? there is no violation of Article 15 of the Constitution.
This section does not provide for any succession to the land; it only provides for the measure of the permissible area to be retained by every holder or owner of the land out of the area held or owned by him or her on the appointed day on the basis of the number of adult sons he or she has.
It is for the legislature to prescribe the measure of permissible area and no exception can be taken because only adult sons have been taken into consideration.
Shri Veda Vyas objected to the further observations of Tuli, J. It.
is evident that distinction between an adult son and an adult daughter has been made not only on the ground of sex but also for the reason that a daughter has to go to another family after her marriage in due course, marriage being a normal custom which is universally practised.
This 1176 is an institution of general prevalence which is the foundation of organised and civilised societies and communities.
Our rapidly changing times, when women after long domestic servitude, seek self expression, cannot forge new legal disabilities and call it legislative wisdom.
But, without assent or dissent, we may pass by these observations because no property right of women is taken away, and discrimination.
if any, is not inflicted on rights, but sentiments.
Shri Arvind Kumar, who followed, also made some persuasive points and seeming dents in the legislation when read in the light of the U.P. Consolidation of Holdings Act, 1953 (hereinafter called the Consolidation Act).
In general terms, the submission turned on the operation of the law relating to consolation of holdings.
It is a great pity that a benign agrarian concept abolition of fragmentation and promotion of consolidation of agricultural holdings has proved in practice to be a litigative treachery and opened up other vices.
The provision for appeals and revisions and the inevitable temptation of the vanquished to invoke article 226 and article 136 of the Constitution has paved the protracted way for improvident lay out on speculative litigation.
More farmers are cultivating litigation than land, thanks to the multi docket procedure in the concerned law.
Even so, we see no force in counsel 's contention which we may now state.
The thrust of his argument, omitting subsidiary submissions which we will take up presently, is that so long as consolidation proceedings under the sister statute (U.P. Consolidation of Holdings Act, 1953) are under way, two consequences follow.
Firstly, all other legal proceedings including the ceiling proceedings must abate.
A notification under section 4 of the Consolidation Act has been issued in regard to many areas in the State.
Consolidation has been completed in most places but is still pending in some places.
Counsel 's argument is that once a notification under s.4 has been issued, section 5(2)(a) operates.
This latter provision states that every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land laying in the area, or, for declaration or ad judication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference of revision, shall, on an order being passed in that 1177 behalf by the court or authority before whom such suit or proceeding is pending, stand abated; Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard: Provided further that on the issue of a notification under sub section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated; Thus the ceiling proceeding has abated and surplus land cannot be taken from him.
This plea has only meretritious attraction and superficial plausibility as we will presently see.
The whole scheme of consolidation of holding is to restructure agrarian landscape of U.P. so as to promote better farming and economic holdings by eliminating fragmentation and organising consolidation.
No one is deprived of his land.
What happens is, his scattered bits are taken away and in lieu thereof a continuous conglomeration equal in value is allotted subject to minimal deduction for community use and better enjoyment.
Once this central idea is grasped, the grievance voiced by the petitioner becomes chimerical.
Counsel complains that the tenure holder will not be able to choose his land when consolidation proceedings are in an on going stage.
True, , whatever land belongs to him at that time, may or may not belong to him after the consolidation proceedings are completed.
Alternative allotments may be made and so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and preserving 'permissible holding ' may have only tentative value.
But this factor does not seriously prejudice the holder.
While he chooses the best at the given time the Consolidation officer will give him its equivalent when a new plot is given to him in the place of the old.
where is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere substitution of scattered pieces with a consolidated plot.
The tenure holder may well exercise his option before the prescribed officer and if, later, the Consolidation officer takes away these lands, he will allot a real equivalent thereof to the tenure holder elsewhere.
There is no reduction or damage or other prejudice by this process of statutory exchange.
Chapter III of the Consolidation Act provides, in great detail, for equity and equality, compensation and other benefits when finalising the consolidation scheme.
Section 19(1) (b) ensure that 16 610 SCI/80 1178 "the valuation of plots allotted to a tenure holder subject to deductions, if any, made on account of contributions to public purposes under this Act is equal to the valuation of plots originally held by him.
Provided that, except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure holder shall not differ from the area of his original holding or holdings by more then twenty five percent of the latter.
" When land ii contributed for public purposes compensation is paid in that behalf in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided.
On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the tenure holder, will be converted into the new allotment under the consolidation scheme .
Thus, we see no basis in justice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way.
We are not all impressed with counsel 's citation of the ruling in Agricultural & Industrial Syndicate Ltd. vs State of UP and others,(l), particularly because there has been a significant amendment to section S subsequent thereto.
The law as it stood then was laid down by this Court in the above case; but precisely because of that decision an explanation has been added to section 5 of the Consolidation Act which reads thus: Explanation: For the purposes of subsection(2) a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Jamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land.
The view of the Allahabad High Court in Kshetrapal Singh vs State of U.P.(2) (H.C.) is correct, and in effect negatives the submission of Shri Arvind Kumar that there should be a stay of ceiling proceedings pending completion of consolidation proceedings.
The head note in Kshetrapal Singh 's case (Supra) brings out the ratio and for brevity 's sake, we quote it; By adding the Explanation after sub section(2) of Section 5 of the Act a legal fiction has been created.
What is 1179 otherwise a proceeding in respect of declaration of rights or interest in any land is deemed not to be such a proceeding.
That is the clear legislative intent behind the Explanation.
ordinarily an Explanation is intended to explain the scope of the main section and is not expected to enlarge or narrow down its scope but where the legislative intent clearly and unambiguously indicates an intention to do so, effect must be given to the legislative intent notwithstanding the fact that the legislature named that provision as an Explanation.
A feeble submission was made that there was time wise arbitrariness vitiating the statute in that various provisions in the Act were brought into force on random dates without any rhyme or reason, thus violating, from the temporally angle, article 14.
It is true that neither the legislature nor the Government as its delegate can fix fanciful dates for effectuation of provisions affecting the rights or citizens.
Even so, a larger latitude is allowed to the State to notify the date on which a particular provision may come into effect.
Many imponderables may weigh with the State in choosing the date l) and when challenge is made years later, the factors which induced '7 the choice of such dates may be buried under the debris of time.
Parties cannot take advantage of this handicap and audaciously challenge every date of coming into force of every provision as capriciously picked out.
In the present case, s.6(1) (g) has been brought into force on 8.6.73, s.6(3) on 10.10.75, s.3(4) on 15.8.72, s.16 on 1.7.73 and s.(l) (e) on 24.1.71.
This last date which was perhaps the one which gave the learned Advocate General some puzzlement was chosen because on that date the election manifesto of the Congress Party in all the States announced a revised agrarian policy and that party was in power at the Union level and in most of the States.
Although a mere election manifesto cannot be the basis for fixation of a date, here the significance is deeper in that it was virtually the announcement of the political government of its pledge to the people that the agrarian policy would be revised accordingly.
The other dates mentioned above do not create any problem being rationally related to the date of a preceding ordinance or the date of introduction of the bill.
The details are not necessary except to encumber this judgment.
We would emphasise that the brief of the State when meeting constitutional challenges on the ground of arbitrariness must be a complete coverage, including an explanation for the date of enforcement of the provision impugned.
Court and counsel cannot dig up materials to explain fossil dates when long years later an enterprising litigant chooses to challenge.
1180 A few other minor infirmities were faintly mentioned but not argued at all or seriously, such as, for instance, the contention that section 38B of the Act which understandably excludes res judicata is challenged as violative of the basis structure of the Constitution and otherwise exceeds legislative competence.
We do not think there is need to dilate on every little point articulated by one or other of the numerous advocates who justify their writ petitions or civil appeals by formal expression of futile submissions.
We dismiss all the appeals and all the writ petitions and all the special leave petitions with costs one set in all the cases together which we quantify as Rs. 5,000/ .
S.R. Appeals and Petitions dismissed.
| IN-Abs | Dismissing the appeals and the Writ Petitions, the Court ^ HELD: (1).
It is fundamental that the nation 's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding interest of forensic blow up.
This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shake up.
The decision in Kesavananda Bharati 's case, therefore, upholding the vires of Article 31A in unequivocal terms binds the court on the simple score of stare decisis and the constitutional ground of Article 141.
Further, fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered and fallaciously reasoned".
And none of these misfortunes can be imputed to Bharati 's case.
[1164 C G, 1165 C D] (2).
The sweep of Article 31A is wide and indubitably embraces legislation on land ceilings.
Equitable distribution of lands, annihilation of monopoly of ownership by imposition of ceiling and regeneration of the rural economy by diverse planning and strategies are covered by the armour of Article 31A. Article 31A repulses, therefore, all invasions on ceiling legislation armed with Articles 14, 19 and 31.
[1165 D E, 1166 D E] Ranjit Singh and ors.
vs State of Punjab and Ors.
; , State of Kerala and Anr.
vs The Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. etc. ; , reiterated.
The decision in Maneka Gandhi 's case is no universal nostrum or cure all.
Nor can it be applicable to the land reform law which is in another domain of constitutional jurisprudence and quite apart from personal liberty in Article 21.
To contend that land reform law, if unreasonable violates Article 21 as expansively construed in Maneka Gandhi case is incorrect.
[1168 E G] (4).
Section 5(6) d the U.P. Imposition of Ceiling on Land Holdings Act, 1960 is fair, valid and not violative of Article 19(1)(f) of the Constitution.
There is no blanket ban by it but only qualified invalidation of certain sinister assignments etc.
There is nothing in this section which is morally wrong nor is such an embargo which comes into force only on a well recognised date not from an arbitrarily retrospective past constitutionally anathematic.
Article 19(1)(f) is not absolute in operation and is subject, under Article 19(6), to 1160 reasonable restrictions such as the one contained in Section 5(6).
Further it is perfectly open to the legislature as ancillary to its main policy to prevent activities which defeat the statutory purpose, to provide for invalidation of such action.
When the alienations are invalidated because they are made after a statutory date fixed with a purpose, there is sense in this prohibition.
Otherwise, all the lands would have been transferred and little would have been left by way of surplus.
[1169 A B, D, F G, 1170 C, E F] (5).
Articles 14 and 15 and the humane spirit of the Preamble rebel against the defacto denial of proprietory personhood or womanhood.
But this legal sentiment and jural value must not run riot and destroy the provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life realism is legislatively pragmatised.
Such a scheme may marginally affect gender justice but does not abridge, wee bit, the rights of women.
If land holding and ceiling thereon are organised with the paramount purpose of maximizing surpluses without maiming women 's ownership, any plea of sex discrimination as a means to sabotage what is socially desirable measure cannot be permitted. [1173 D F] From a reading of Section 3(7) read with Section S(3) it is clear that no woman 's property is taken away any more than a man 's property.
Section 5(3) does not confer any property on an adult son nor withdraw any property from adult daughter.
Legal injury can arise only if the daughter 's property is taken away while the son 's is retained or the daughter gets no share while the son gets one.
The legislation has not done either.
[1171 G, 1173 F, H, 1174 C D] (6).
Section 3(17) of the Act is not discriminatory Land does not offend Articles 14 & 15 of the Constitution.
True, Section 3(17) makes the husband a tenure holder even when the wife is the owner.
This is a legislative device for simplifying dealings and cannot therefore be faulted.
[1174 E, F G] (7).
Neither ceiling proceedings abate nor taking surplus land from the tenure holder is barred under the provisions of Section 4 of the U.P. Consolidation of Holdings Act, 1953 read with Section 5(2) of the Ceiling Act.
[1177 C] The whole scheme of consolidation of holdings is to restructure agrarian landscape of U.P. so as to promote better farming and economic holdings by 'eliminating fragmentation and organising consolidating.
No one is deprived of his land.
What happens is, his scattered bits are taken away and in lieu thereof a continuous conglomeration equal in value is allotted subject to minimal deduction for community use and better enjoyment.
Whatever land belongs to the tenure holder at the time when consolidation proceedings are in an on going stage, may or may not belong to him after the consolidation proceedings are completed.
Alternative allotments may be made and so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and preserving 'permissible holding ' may have only tentative value.
But this factor does not seriously prejudice the holder.
While he chooses the best at the given time the Consolidation Officer will give him its equivalent when a new plot is given to him in tho place of the old.
There is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere substituting of scattered pieces with a consolidated plot.
The tenure holder may well exercise his option before the prescribed officer and if, later, the Consolidation Officer takes away there lands, he will allot a real equivalent thereof to the tenure holder elsewhere.
There is no reduction or damage or other prejudice by this process of statutory exchange.
[1177 C G] 1161 When land is contributed for public purposes compensation is paid in that behalf, and in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided.
On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the tenure holder, will be converted into the new allotment under the consolidation scheme.
Thus there is no basic injustice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way.
[1178 B D] Agricultural & Industrial Syndicate Ltd. vs State of U.P. and Ors., [1974] 1 S.C.R. 253, distinguished.
Khetarpal Singh vs State of U.P. (High Court) [1975] Recent Decisions p. 366, approved.
There is no time wise arbitrariness vitiating the statute in that various provisions in the Act were brought into force on random dates without any rhyme or reason, thus violating, from the temporally angle, Article 14.
It is true that neither the legislature nor the Government as its delegate can fix fanciful dates for effectuation of provisions affecting the rights of citizens.
Even so, a larger latitude is allowed to the State to notify the date on which a particular provision may come into effect.
Many imponderables may weigh with the State in choosing the date and when challenge is made years later, the factors which induced the choice of such dates may be buried under the debris of time.
Parties cannot take advantage of this handicap and audaciously challenge every date of coming into force of every provision as capriciously picked out.
[1179 B D]
|
ivil Appeal Nos.
14 32, 902, 879, 1130 32, 1121, 1172, 1215, 1201, 1127, 1128, 1222, 1224, 1223, 1275, 1129, 1523, 1539, 1280, 863, 1361, 1323, 1375, 1621, 1374, 1410, 1628, 2117, 1961, 1917, 1918, 1919, 1920 & 2290 of 1978 3447 3450/79.
Appeals by Special Leave from the Judgments and order dated 13.10.1977 etc.
Of the Andhra Pradesh High Court in Writ Petition No. 1872/77 etc.
AND WRIT PETITION Nos: 3973, 3998, 3836, 4198, 4199, 4200, 4210, 4263, 4317, 4318, 4414, 4256, 4537 and 4500 of 1978.
F. section Nariman, K. Krishna Rao and K. Rajendra Choudhary far the Appellants in CA Nos.
14 to 23, 25 29, 1223 1224 1628/78, 3447 and 3449/79.
A. Subba Rao for the Appellants in CA No. 1126 & WP Nos.
3973, 4198, 4199, 4200, 4317, 4318 4210/78.
A. V. V. Nair for the Appellants in CA Nos.
1215, 1361, 2117, 1286 and W.P. No. 1374/78.
G. section Rama Rao for the Appellants in CA No. 1121 & Petitioners in WP Nos. 4256 and 3836/78.
Vepa Sarathi and B. Ranta Rao for the Appellants/Petitioners in CA Nos. 24, 30, 32, 1172, 1127, 1128, 1129, 1261, 1323 1275/ 78 and WP Nos.
4263, 4500 4537/78.
section Venkata Reddy and G. Narsimulu for the Appellants in CA Nos. 31, 902, 879, 1130 32, 1410, 1621, 1917 20, 1961/78 & 1373/78.
A. K. Ganguli for the Appellants in CAs 1222 and 863/78.
R A. V. Rangam for the Petitioners in WP No. 3998/78.
section Balakrishan for the Petitioners in WP 4414/78.
V.S. Desai and A. Subba Rao for the Applicant/Intervener.
1147 K. K. Venugopal Addl.
, Ram Chandra Reddy Adv.
A Genl.
A. P. and B. Parthasarthy for the appearing respondents.
BHAGWATI, J.
These appeals by special leave and the writ petitions represent a last but desperate attempt by the; class of land holders in Andhra Pradesh to defeat an agrarian reform legislation enacted by the State or the benefit of the weaker sections of community.
It is indeed a matter of regret that a statute intended to strike at concentration of land in the hands of a few and to act as a great equaliser by reducing inequality in holding of land between the haves and the have nots should have practically remained unimplemented for a period of over seven years.
Unfortunately, this is the common fate of much of our social welfare legislation.
We can boast of some of the finest legislative measures calculated to ameliorate the socio economic conditions of the poor and the deprived and to reach social and economic justice to them, but regret ably, a large part of such legislation has remained merely on paper, and the benefits of such legislation have not reached the common man to any appreciable extent.
The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1 of 1973 (hereinafter referred to as the Andhra Pradesh Act) which is challenged in the present appeals was enacted by the Andhra Pradesh Legislature on 1st January 1973.
Soon after its enactment, the constitutional validity of the Andhra Pradesh Act was challenged before the Andhra Pradesh High Court on various grounds, but a full Bench of the High Court negatived the challenge and held the Andhra Pradesh Act to be constitutionally valid.
Though this judgment was delivered by the High Court as early as 11th April, 1973, no effective steps for implementation of the Andhra Pradesh Act could be taken, since the Andhra Pradesh Act merely remained on the statute book and for some inexplicable reason, it was.
not brought into force until 1st January 1975.
Even after the Andhra Pradesh Act was brought into force, not much enthusiasm was shown be the Government in implementing its provisions and in the mean while, it was found necessary to amend the legislation and hence the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Amendment Act 1977 was enacted with retrospective effect from 1st January 1975 and by this amending Act certain amendments were made which included inter alia the introduction of section 41A.
We shall presently refer to the relevant provisions of the amended Andhra Pradesh Act, but before we do so, it is necessary to point out that as soon as the amending Act was passed, another round 1148 of litigation was started by the landholders by filing writ petitions in the High Court challenging once again the constitutional validity of the Andhra Pradesh Act.
There were several grounds on which the constitutional validity was challenged but the main ground was that by reason of the enactment of the Urban Land (Ceiling Regulation) Act 1976 (hereinafter referred to as the Central Act), the Andhra Pradesh Act had become void and inoperative.
Certain other questions involving the interpretation of the provisions of the Andhra Pradesh Act were also raised in some of the writ petitions, but they too need not be mentioned here, because in the course of the hearing we made it clear to the parties that we would examine only the constitutional validity of the Andhra Pradesh Act and other questions could be agitated by the landholders in the appeals filed by them against the orders determining surplus land.
It was pointed out to us that some of the landholders had not filed appeals within the prescribed time and grave injustice would therefore result to them if these question, were not decided by us.
But the learned Additional Solicitor General appearing on behalf of the State family stated before us that if appeals have been filed beyond time or are filed within a month of disposal of these appeals, the delay in filing the appeals would be condoned.
Turning to the constitutional challenge which in those days was required to be decided by a full Bench of 5 Judges of the High Court, it was held that the enactment of the Central Act did not have the effect of invalidating the whole of the Andhra Pradesh Act, but since the provisions of the Andhra Pradesh Act were repugnant to the provisions of the Central Act so far as concerned land satisfying both the definition of "land" in the Andhra Pradesh Act and the definition of "vacant land" in the Central Act, the Andhra Pradesh Act was held not applicable to "vacant land" falling within the ambit of the Central Act.
The High Court accordingly granted a declaration to this effect to the landholders, but save for this limited relief, dismissed the writ petitions in all other respects, since in the opinion of the High Court there was no substance in any of the other contentions raised on behalf of the landholders.
The landholders thereupon preferred the present appeals after obtaining special leave from this Court.
The principal contention urged on behalf of the landholders in support of the appeals was that the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.
This contention was based on two resolutions, one dated 7th April 1972 passed by the Andhra Pradesh Legislative Council and the other dated 8th April 1972 passed by the Andhra Pradesh Legislative Assembly under clause (1) of Article 1149 252 of the Constitution.
This Article carves out an exception derogating from the normal distribution of legislative powers between the Union and the States under Article 246 and is in the following terms: article 252(1) : If it appears to the legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State be which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.
(2) An Act so passed by Parliament may be amend ed or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.
" The effect of passing of resolutions be the Houses of Legislature of two or more States under this constitutional provision is that Parliament which has otherwise power to legislate with respect to a matter, except as provided in Articles 249 and 250, becomes entitled to legislate with respect to such matter and the State Legislatures passing the resolutions cease to have power to make law relating to.
that matter.
The resolutions operate as abdication or surrender of the powers of the State Legislatures with respect to the matter which is the subject of the resolutions and such matter is placed entirely in the hands of Parliament and Parliament alone can then legislate with respect to it.
It is as if such matter is lifted out of List II and placed in List I of the Seventh Schedule to the Constitution.
This would seem to be quite clear on a plain natural construction of the language of clauses (1) and (2) of Article 252 and no authority.
is necessary in support of it, but if any was wanted, it may be found in the decision of a Full Bench of five Judges of this Court in Union of India vs V. V. Chaudhary in fact the same Bench as the present one where an identical view has been taken.
It was in pursuance of clause (l) of this Article that a Resolution 1150 was passed by the Andhra Pradesh Legislative Council on 7th April 1972 to the effect that "the imposition of a ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto should be regulated in the State of Madhya Pradesh by Parliament by law and an identical resolution in the same terms was passed on the next day by the Andhra Pradesh Legislature Assembly.
Similar resolutions were also passed by the Houses of Legislature of some other States, though there is no material to show as to when they were passed.
It was however common ground that at best some of these resolutions were passed prior to the enactment of the Andhra Pradesh Act.
The result was that at the date when the Andhra Pradesh Act was enacted, Parliament alone was competent to legislate with respect to ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all connected, ancillary or incidental matters, and the Andhra Pradesh Legislature stood denuded of its power to legislate on that subject.
Now the Andhra Pradesh Act, as its long title shows, was enacted to consolidate and damned the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus land and matter connected therewith.
On its plain terms, it applies to land situate in any part of Andhra Pradesh.
Section 3(f) creates an artificial unit called 'family unit ' by defining it as follows: "Sec. 3(f) "family unit" means (i) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor daughters; if any; (ii) in the case of an individual who has no spouse such individual and his or her minor sons and unmarried minor daughters; (iii) in the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or not; and (iv) where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters.
Explanation Where a minor son is married, his wife and their offspring, if any, shall also be deemed to be members of the family unit of which the minor son is a member: 1151 The term "land" is defined in section 3(j) to mean "land which A is used or is capable of being used for purposes of agriculture, or for purposes ancillary thereto, including horticulture, forest land, pasture land, waste land, plantation and tope; and includes land deemed to be agricultural land under this Act".
Explanation I to this definition enacts a rebuttable presumption that land held under Ryotwari settlement shall, unless the contrary is proved, be deemed to be 'land ' under the Andhra Pradesh Act.
Section 3(o) defines 'person ' as including inter alia an individual and a family unit.
Section 10 is the key section which imposes ceiling on the holding of land by providing that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
If therefore an individual or a family unit holds land in excess of the ceiling area, the excess would have to be surrendered to the State Government.
But the question then arises, what is the ceiling area above which a person cannot hold land.
The answer is provided by section 4 which reads as follows: "Sec.
4(1) The ceiling area in the case of a family unit consisting of not more than five members shall be an & extent of land equal to one standard holding.
(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one fifth of one standard holding for every such member in excess of five, so however that the ceiling area shall not exceed two standard holdings.
(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding.
Explanation: In the case of a family unit, the ceiling area shall be applied to the aggregate of the lands held by all the members of the family unit".
It will thus be seen that the ceiling area in the case of an individual who is not a member of a family unit is equivalent to one standard holding and so also in the case of a family unit with not more than five members, the ceiling area is the same, but if the family unit consists of more than five members, the ceiling area would stand increased by one fifth of one standard holding for every additional member of the family unit, subject however to the maximum limit of 2 standard holdings.
When the ceiling area is applied to the holding of a 1152 family unit, the Explanation requires that the lands held by all the members of the family unit shall be aggregated for the purpose of computing, the holding of the family unit.
Where, therefore, there in a family unit consisting of father, mother and three minor sons or daughters, the lands held by all these persons would have to be clubbed together and then the ceiling area applied to the aggregate holding.
There is no distinction made in the definition of 'family unit ' between a divided minor son and an undivided minor son.
Both stand on the same footing and a divided minor son is as much a member of the family unit as an undivided minor son, and consequently the lands held by a divided minor son would have to be included in the holding of the family unit for the purpose of application of the ceiling area.
Section 7 invalidates certain transfers of land and provides for inclusion of such lands in the holding of an individual or a family unit.
Then there is a provision in section 8 for furnishing a declaration in respect of his holding by every person whose land exceeds the ceiling area and the Tribunal is required by section 9 to hold an enquiry.
and pass an order determining the land held in excess of the ceiling area.
Such land has to be surrendered by the person holding the land and on such surrender, the Revenue Divisional officer is empowered under section 11 to take possession of the land which thereupon vests in the State Government free from all encumbrances.
Section 14 provides inter alia that the land vested in the State Government shall be allotted for use as house sites for agricultural labourers.
village artisans or other poor persons owning no houses or house sites or transferred to the weaker sections of the people dependent on agriculture for purposes of agriculture/or for purposes ancillary thereto in such manner as may be prescribed by the Rules, subject to a proviso that as far as practicable not less than one half of the total extent of land so allotted or transferred shall be allotted or transferred to the members of the Scheduled Castes and the Scheduled Tribes.
Section 15 enacts a provision for payment of compensation for land vested in the State Government at the rates specified in the Second Schedule.
These are the only relevant provisions of the Andhra Pradesh Act which need to be referred to for the purpose of the present appeals.
We may now turn to examine the relevant provisions of the Central Act.
This Act was enacted by Parliament pursuant to the authority conferred upon it by the resolutions passed by the Houses of legislature of several States including the State of Andhra Pradesh under clause (1) of Article 252.
It received the assent of the President on 17th February 1 976 and as its long title and recital shows it was enacted to provide for the imposition of a ceiling on vacant 1153 land is urban agglomerations for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good.
We shall refer to a few material provisions of this Act.
Section 2(a) (i) defines "appointed day" to mean in relation to any State to which this Act applies in the first instance which includes the State of Andhra Pradesh the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Parliament.
This was the Bill which culminated in the Act and it was introduced in Parliament on 28th January 1976.
Consequently, this date would be the 'appointed day ' for the purpose of applicability of the Act to the State of Andhra Pradesh.
The definition of "family" in section 2 (f) is materially in the same terms as the definition of "family unit" in the Andhra Pradesh Act.
Then follow two important definitions which needed to be set out in extenso.
The word "person" is defined in section 2(i) as including inter alia an 'individual ' and the 'family '.
Section 2(n) defines "urban agglomeration" in the following terms: "Sec.2(n) (A) in relation to any State of Union territory specified in column (1) of Schedule 1, means (i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral area specified in the corresponding entry in column (3) thereof; and (ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstance of the case may require, by notification in the official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area there for shall be one kilometre; (B) xx xx xx xx xx" The term 'urban land ' is defined in section 2(o) to mean: Sec.
2(o)(i): any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or 1154 (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town Committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
Explanation: For the purpose of this clause and clause (q), (A) "agriculture" includes horticulture, but does not include (i) raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of live stock, and (v) such cultivation, or the growing of such plant, as may be prescribed.
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture; (C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture; " Section 2(q) gives a definition of "vacant land" by providing that "vacant land" means, subject to certain exceptions which are not material, land not being land mainly used for the purpose of agriculture, in an urban agglomeration.
Section 3 is the rebuttal section which imposes ceiling on holding of 'vacant land ' by providing that: "Sec. 3.
Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be n entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub section (2) of section 1." 1155 Section 4 divides urban agglomeration into categories A, B, C and D lays down different ceiling limits for these different categories.
Then there is a provision in section 5 invalidating in certain circumstances the transfer of vacant land made at any time during the period commencing on the appointed day and ending with the commencement of the Act.
The procedure for determining "vacant land" held in excess of the ceiling limit is laid down in sections 6 to 9 and section 10 enacts a provision for acquisition of such land held in excess of such limit.
Section 23 provides for disposal of vacant land acquired under the Act and it empowers the State Government to allot such vacant land to "any person for any purpose relating to or in connection with any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry.
It will thus be seen that the Central Act imposes a ceiling on holding of land in urban agglomeration other than land which is mainly used for the purpose of agriculture and agriculture in this connection includes horticulture, but does not include raising of grass, dairy farming, poultry farming, breeding live stock and cultivation or the growing of such plants as may be prescribed by the Rules, and, moreover, in order to fall within the exclusion, the land must be entered in the revenue or land record before the appointed day as for the purpose of agriculture and must also not have been specified in the master plan for a purpose other than agriculture.
Now, as we have already pointed out above, the Andhra Pradesh Legislature had, at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect to ceiling on urban immovable property.
That power stood transferred to parliament and as a first step towards the eventual imposition of ceiling on immovable property of every other description, the Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other than land mainly used for the purpose of agriculture, in an urban agglomeration.
The argument of the landholders was that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomeration and since the concept of agglomeration defined in section ' 2(n) of the Central Act was an expensive concept and any area with an existing or future population of more than one lakh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.
This argument plausible though it may seem, in our opinion, is unsustainable.
It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside the area of its legislative competence, because it 1156 cannot provide for imposition of ceiling on urban immovable property.
But the only urban agglomerations in the State of Andhra Pradesh recognised in the Central Act were those referred to in section 2(n) (A) (ii) and there can be no doubt that so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations.
It is, however, difficult to see how the Andhra Pradesh Act could be said to be outside the legislative competence of the Andhra Pradesh Legislature in so far as land situate in the other areas of the State of Andhra Pradesh is concerned.
We accept that any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act but until it is so notified it would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on land situate within such area.
No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land.
It may be noticed that the Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government It must therefore follow that in an area other than that comprised in the urban agglomerations referred to in section 2(n) (A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him.
It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act.
We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act.
Undoubtedly, when an area is notified as an urban agglomeration under section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh 1157 Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area.
It is therefore not possible to uphold the contention of the landholders that the whole of the Andhra Pradesh Act is ultra vires and void as being outside the area of legislative competence of the Andhra Pradesh Legislature.
It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A) (i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh.
The next contention urged on behalf of the landholders was that on a proper construction of the relevant provisions of the Andhra Pradesh Act, a divided minor son was not liable to be included in "family unit" as defined in section 3(f) of that Act.
The argument was that sub section (2) of section 7 did not invalidate all partitions of joint family property but struck only against partitions effected on or before 2nd May 1972 and thus by necessary implication recognised the validity of partitions affected prior to that date.
If therefore a partition was effected prior to 2nd May 1972 and under that partition a minor son become divided from his father and mother, the divided minor son could not be included in the family unit and his property could not be clubbed with that of his father and mother, because otherwise it would amount to invalidation of the partition though section 7, sub section (2) clearly recognised such partition as valid.
This argument is clearly fallacious in that it fails to give due effect to the definition of family unit in section 3(f) and the provisions of section 4.
It is undoubtedly true that a partition effected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property which comes to the share of a divided minor son would in law belong to him and would not be liable to be required as part of joint family property.
But under the definition of family unit in section 3(f) the divided minor son would clearly be included in the family unit and by reason of section 4 his land whether self acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit.
The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit.
We do not therefore see how a divided minor son can be excluded from the family unit.
That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act.
1158 Then a contention was advanced on behalf of the landholders that the definition of "family unit" was violative of Article 14, of the Constitution in that it made unjust discrimination between a minor son and the major son by including minor son in the "family unit" while excluding a major son from it.
This contention has already been dealt with by learned brother Tulzapurkar, J. in the judgment delivered by him today in the Haryana Land Ceiling matters and we need not repeat what he had already stated there while repelling this contention.
Moreover, this contention isl no longer open to the landholders since the Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Articles 14, 19 and 31 by the protective umbrella of Article 31A.
We do not therefore see any substance in the contentions urged on behalf of the landholders and we accordingly dismiss the appeals and the writ petitions with costs.
S.R. Appeals & Petitions dismissed.
| IN-Abs | The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act I of 1973 was enacted on 1st of January 1973.
Though a Full Bench of the High Court of Andhra Pradesh when challenged by some of the land holders held by its judgment dated 11th April, 1973, the Act to be constitutionally valid; yet the said Act was not brought into force till 1st January 1975.
In ]977, the Act was amended with retrospective effect from 1st January 1975 by the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Amendment Act 1977.
As soon ns the Amending Act was passed, the land holders once again filed writ petitions in the High Court, challenging the constitutional validity of the Andhra Pradesh Act.
The main ground, inter alia, was that by reason of the enactment of the Urban Land (Ceiling & Regulation) Central Act, 1976, the Andhra Prdesh Act had become void and inoperative.
A Full Bench of five judges of the High Court held that the enactment of the Central Act did not have the effect of invalidating the whole of the Andhra Pradesh Act, but since the provisions of the Andhra Pradesh Act were repugnant to the provisions of the Central Act so far as concerned land satisfying both the definition of "land" in the Andhra Pradesh Act and the definition of "vacant land", in the Central Act, the Andhra Pradesh Act was held not applicable to "vacant lands" falling within the ambit of the Central Act.
ave for this limited relief, the High Court dismissed the writ petitions in all other respects.
Hence the appeals by the land holders after obtaining special leave from this Court.
Writ Petitions were also filed directly in this Court by some of the land holders.
Dismissing the appeals, and writ petitions, the Court ^ HELD :1.
Article 246 of the Constitution of India carves out an exception derogating from the normal distribution of legislative powers between the Union and the States.
The effect of passing of resolutions by the Houses of Legislature of two or more States under this constitutional provision is that Parliament which has otherwise no power to legislate with respect to a matter, 1144 except as provided in Articles 249 and 250, becomes entitled to legislate with regard to such matter and the State Legislature passing the resolutions cease to have power to make law relating to that matter.
The resolutions operate as abdication or surrender of the powers of the State Legislatures with respect to the matter which is the subject of the resolutions and such matter is placed entirely in the hands of Parliament and Parliament alone can then legislate with respect to each.
It is as if such matter is lifted out of list II and placed in List I of the Seventh Schedule to the Constitution.
A plain natural construction of the language of Clauses (1) and (2) of Article 252 makes this position clear.
It was in pursuance of clause (1) of Article 352 that a resolution was passed by the Andhra Pradesh Legislative Council on 7th April, 1972 to the effect that "the imposition of ceiling of urban immovable property and acquisition of such property in excess of the ceiling and all matters concerned therewith or ancillary and incidental thereto should be regulated in the State or Andhra Pradesh by Parliament by law" and on identical resolution in the same terms was passed on the next day by the Andhra Pradesh Legislative Assembly.
The result was that at the date when the Andhra Pradesh Act was enacted, Parliament alone was competent to legislate with respect to ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all connected, ancillary or incidental matters, and the Andhra Pradesh Legislature stood denuded of its power to legislate on that subject.
[1149 A, E H, 1150 A C] Union of India vs V. B. Choudhary, 19791 3 SCR 802; followed.
Under the powers thus transferred Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other land mainly used for the purpose of agriculture, in an urban.
agglomeration.
The Central Act imposes a ceiling on holding of land in urban agglomeration other than land which is mainly used for the purpose of agriculture and agriculture in this connection includes horticulture, but does not include raising of grass, daily farming, poultry farming, breeding live stock and such cultivation or the growing of such plants as may be prescribed by the Rules, and, moreover, in order to fall within the exclusion, the land must be entered in the revenue cr land record before the appointed day as for the purpose of agriculture and must also not have been specified in the master plan for a purpose other than agriculture.
[119 C F] 3.
It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside rh art of its legislative competence, because it cannot provide for imposition of ceiling on urban immovable property.
But the only urban agglomerations in the State of Andhra Pradesh recognised in the Central Act were those referred to in Section 2(n) (A) (i) and there can be no doubt that so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations.
But, the Andhra Pradesh Act is not out side the legislative competence of the Andhra Pradesh Legislative in so far as lands situate in the other areas of the State of Andhra Pradesh are concerned.
Any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under section 2(n) (A) (ii) of the Central Act but until it is so notified would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on 1145 land situate within such area.
No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land.
The Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date that the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government.
Therefore, in an area other than that comprised in the urban agglomerations referred to in section 2(n)(A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him.
It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act.
[1155 G H, 1156 A G] Merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n) (A) (ii) of the Central Act, the Andhra Pradesh Legislature would not cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act.
Undoubtedly, when an area is notified as an urban agglomeration under section 2(n) (A) (ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area.
Therefore, the whole of the Andhra Pradesh Act is neither ultravires nor void as being outside the area of legislative competence of the Andhra Pradesh Legislature.
It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A)(i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh.
[1156 G X 1157 A B] 4.
A divided minor cannot be excluded from the 'family unit ' as defined in section 3(f) of the Andhra Pradesh Act.
That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act.
It is true that a partition affected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property which comes to the share of a divided minor son would in law belong to him and would not be liable to be regarded as part of joint family property.
But under the definition of family unit in section 2(f) the divided minor son would clearly be included in the family unit and by reason of section 4 his land whether self acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit.
The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit.
[1157 C, F HI 14 610 SCI/80 1146 5.
The Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Article 14, 19 and 31 by the protective umbrella of Article 31A. [1158 B C] 6.
The definition of 'family unit ' is nor violative of Article 14 of the Constitution by including ' a minor son in the family unit while excluding a major son from it.
[1158 A] Seth Nand Lal vs State of Haryana.
[1980] 3 SCR p. 1181 followed.
|
Civil Appeal Nos.
2780 2782 of 1977.
Appeals by Special Leave from the Judgment and Order dated 22 8 1977 of the Madras High Court in C.R.P. Nos.
559 561/77.
K. Parasaran, Solicitor General of India and A.V. Rangam for the Appellant.
T.S. Krishnamurthy Iyer, section Srinivasan and A.T.M. Sampath for the Respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
These appeals by special leave are directed against a common judgment of the Madras High Court dated August 22, 1977, in three revision petitions against the orders of the State Transport Corporation, Madras, dated February 16, 1977, by which the High Court allowed the revision petitions and remitted the cases to the Regional Transport Authority for fresh consideration in the light of its observations.
The High Court directed further that the revision petitioners before it as well as the present appellant Corporation would continue to provide transport facilities on the route in question until the disposal of the renewal applications of the revision petitioners.
The facts of the three appeals are quite simple and are not in controversy.
They have been heard together at the instance of the learned Counsel for the parties and will be disposed of by this common judgment.
The controversy relates to the plying of vehicles on the Salem Krishnagiri route.
The facts of one of the three cases have been placed for our consideration by the learned Counsel for the parties and they have informed us that they are sufficient for the adequate disposal of all the appeals.
Balkrishna Bus Service and Company, respondent No. 2, was a private operator on the aforesaid route.
Its permit was due to expire on October 9, 1974, and it applied for its renewal within the time 71 prescribed by law.
Its application was notified on June 5, 1974, under section 57(3) of the , hereinafter referred to as the Act.
Objections to the renewal application were filed by the Anna Transport Corporation Limited, which is the present appellant, on June 25, 1974.
The Corporation, at the same time, also applied for the grant of a permit to it.
A controversy therefore arose in the matter and the Regional Transport Authority fixed December 21, 1974, for its hearing.
The case was, however, adjourned.
Balakrishna Bus Service and Co., in the meantime, filed a writ petition and challenged the validity of rule 155 A of the Motor Vehicle Rules of the State and obtained a stay of the hearing of the matter which was pending before the Regional Transport Authority.
A draft scheme for the route from Mettur to Kallakurchi via Omalur and Salem was published on June 4, 1976, and it formed a sector of the Salem Krishnagiri route.
The validity of aforesaid Rule 155 A was finally upheld by the High Court on June 29, 1976.
It therefore dismissed the writ petition and directed the Regional Transport Authority to dispose of the pending application for renewal within a month.
The Regional Transport Authority rejected that application on October 30, 1976, and granted a permit to the present appellant.
The State Transport Appellate Tribunal confirmed that order.
The matter was taken to the High Court in revision and that led to the passing of the impugned judgment.
The facts are, therefore, quite simple.
There is no controversy about them, and they are sufficient for the disposal of the present appeals by special leave.
It is not disputed before us that the section applicable to the controversy is section 68F of the Act.
The High Court, in fact, not only decided the revision petitions with reference to that section but rightly took the view that the controversy before it fell within the purview of sub section (1D) thereof.
It, however, held on a reading of this Court 's decision in Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr.,(1) that the case fell within the purview of the so called "rider" to proposition No. 2 set out in that judgment with reference to the proviso to sub section (1D) of section 68F of the Act.
The sub section reads as follows, (1D) Save as otherwise provided in sub section (1A) or subsection (1C) no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class 72 of road transport service in relation to an area or route or portion thereof covered by such scheme: Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under section 68C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of section 68D.
It is not in controversy that sub section (1A) or sub section (1C) of section 68F are not applicable to the controversy.
The rest of sub section (1D) provides that no permit shall be granted or "renewed" during the period intervening between the date of publication under section 68C of any scheme and the date of publication of any approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme.
As has been stated, a draft scheme of road transport service of the appellant Corporation was published on June 4, 1976, under section 68C of the Act and, as has been mentioned, that scheme overlapped a section of the Salem Krishnagiri route.
It follows, therefore, that by virtue of the clear provision of sub section (1D) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the aforesaid scheme under section 68C, that is, after June 4, 1976, and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service.
The High Court therefore clearly went wrong in thinking that the case fell within the purview of the proviso to sub section (1D) and it consequently erred in taking into consideration the so called rider to proposition No. 2 mentioned in this Court 's judgment in Cheran 's case (supra).
The proviso would have been applicable only if the period of operation of the permit of the respondents had expired after the publication of the scheme prepared under section 68C; but that was not so in this case.
It has also to be remembered that in this case it was the respondent (private operator) who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order.
On a plain reading of sub section (1D) of section 68F of the Act, we have therefore no hesitation in allowing the appeals with costs.
We may however add that if no approved or modified scheme has been published so far, the proper course for the Regional Transport Authority would be to keep the three renewal applications pending and not to treat them as dismissed.
The stay orders are vacated.
N.V.K. Appeals allowed.
| IN-Abs | Section 68F(1D) of the provides that no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme.
Respondent No. 2 was a private operator operating a Stage carriage route.
Its permit was due to expire on October 9, 1974 and it applied for its renewal.
The application was notified on June 5, 1974 under section 57(3) of the .
Objections to the renewal application were filed by the appellant Corporation on June 25, 1974 which also simultaneously applied for the grant of a permit to itself.
The Regional Transport Authority fixed December 21, 1974 for hearing and the case was adjourned.
In the meanwhile, respondent No. 2 filed a Writ Petition and challenged the validity of Rule 155A of the Motor Vehicles Rules and obtained stay of the hearing of the matter which was pending before the Regional Transport Authority.
The validity of the said rule was upheld by the High Court and the writ petition was dismissed.
A draft scheme of road transport service of the appellant corporation was published on June 4, 1976 under section 68C of the Act and that scheme overlapped a section of the route operated by respondent No. 2.
The Regional Transport Authority rejected the application of respondent No. 2 on October 30, 1976 and granted a permit to the appellant, which order was confirmed by the State Transport Appellate Tribunal.
The High Court, however in revision took the view that the matter fell within the purview of sub section (1D) of section 68, but held on a reading of the decision in Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr. ; , that the case fell within the purview of the "rider" to proposition No. 2 set out in that judgment with reference to the proviso to section (1D) of section 68F of the Act and allowed the revision petitions.
Allowing the appeals to this Court, ^ HELD: (i) By virtue of the clear provision of sub section (1D) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the scheme under section 68C, and the date of publication of the approved or modified scheme, in favour of any person in any class of road transport service.
[72E] 70 (ii) The High Court clearly went wrong in thinking that the case fell within the purview of the proviso to sub section (1D) and it consequently erred in taking into consideration the so called rider to proposition 2 mentioned in the judgment in Cheran 's case.
[72F] (iii) The proviso would have been applicable only if the period of operation of the permit of the respondent had expired after the publication of the scheme prepared under section 68C; but that was not so in this case.
[72F] In the instant case, it was respondent No. 2 who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order.
|
Civil Appeal No. 1950 of 1979 From the Judgment and Order dated 24 4 1979 of the Andhra Pradesh High Court in Election Petition No. 8/78.
Govindan Nair and A. Subba Rao for the Appellant.
P. P. Rao, T. Ramachandran, K. Ramkumar and Venkataramani for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal by Shri Thammanna is directed against a judgment, dated April 24, 1979 of the High Court of Andhra Pradesh, whereby the election petition filed by Shri V. Krishna Reddy, respondent 7 herein, against the returned candidate, Shri K. Veera Reddy (Respondent 1 herein) was dismissed.
The material facts are these: In the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 respondents 1 to 4, 6, 7 and the appellant filed their nominations for Amarchinta Assembly Constituency.
Polling took place on February 25, 1978 and Shri K. Veera Reddy, respondent 1, was declared elected on February 27, 1978.
He secured 34727 votes while his nearest rival, respondent 2, got 29,419 votes.
The appellant obtained 822 votes only.
Shri V. Krishna Reddy, (Respondent 7 herein), being a voter for 198 Amarchinta Assembly Constituency in Mahabubnagar District filed an election petition in the High Court to get the election of the first respondent declared void on the ground that on the date of filing the nomination paper as well as on the date of the election, this respondent had subsisting contracts with the Government of Andhra Pradesh and as such, he was under Section 9A of the Representation of the People Act, 1950 (hereinafter referred to as the Act) disqualified to be chosen to fill the seat.
All the candidates who had filed their nominations, were joined in the election petition as respondents.
The appellant was impleaded as original respondent 5.
The election petition was contested by respondent 1, (K. Veera Reddy) only.
The appellant (i.e. original Respondent 5) did not file any written statement.
He did not lead any evidence, nor did he cross examine the witnesses produced by respondent 1 or the Election Petitioner.
He did not participate even in the arguments.
A preliminary objection has been raised by the learned counsel for respondent 1.
It is submitted that Shri Thammanna is not competent to maintain this appeal, because he does not fulfil the character 76 of a "person aggrieved" by the judgment of the High Court.
It is emphasised that it was not necessary for the election petitioner to join Shri Thammanna as a respondent because no relief was claimed against him; that he was impleaded as respondent 5 only as a matter of form that he did not participate in the proceedings before the High Court; nor joined issue with Respondent 1.
It is pointed out that according to the judgment of the High Court, the contest was only between the Election Petitioner and Respondent 1, while the original Respondents 2 to 7, including Thammanna, were proceeded against ex parte.
In short, the objection is that since the appellant could not be said to be a party adversely affected by the judgment of the High Court, he has no locus standi to prefer this appeal.
In reply, Shri Govindan Nair, learned counsel for the appellant submits that Shri Thammanna was not a mere proforma respondent but was a person who was entitled to apply and join as a party under Section 86(4) of the Act within fourteen days from the date of commencement of the trial and subject to any order as to security for costs.
Such a person is entitled under the law by virtue of his status as a party respondent to file an appeal against the decision of the High Court, if he feels aggrieved by the same.
The very fact that the original respondent 5, has filed this appeal shows that he is a person aggrieved by the decision of the High Court, dismissing the Election Petition.
It is maintained that the mere fact that the appellant did not file any written statement or participate actively in proceedings before the High Court, or that the Election Petitioner has not joined him as a co appellant, is not sufficient to deny him the status of a "person aggrieved".
It is argued that in an election petition, the petitioner is not the dominus litis but acts as a representative of the whole body of electors in the constituency, that is why an election petitioner cannot at his sweet will abandon the election petition or withdraw from it without complying with the procedure prescribed, and if he does so, in view of sections 109 and 110 of the Act, the Court can allow another voter or respondent to continue the petition.
According to the counsel, since an appeal is only a re hearing of the original petition any party to the original proceedings who feels aggrieved, is entitled, in accordance with the principle underlying Sections 108 and 109 of the Act, to file an appeal, even if the original Election Petitioner neglects or abstains from doing so.
Shri Nair further submits that the High Court has wrongly stated that the appellant (being original respondent 5) was also proceeded against ex parte; that, in fact, the appellant was present in the High Court on most of the dates of hearing, although he remained quiescent. 77 In the alternative, it is submitted that if it is assumed that the appellant was proceeded against ex parte in the High Court, the final determination in the impugned judgment will be deemed to be in the nature of an ex parte decree against him.
In that view of the matter also, according to the learned counsel, the appellant has the necessary locus to maintain this appeal, against that ex parte determination.
In support of his contention, Shri Nair has referred to K. K. Kamaraja Nadar vs Kunju Thevan and Ors(1), Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa & Ors.(2), A. Sreenivasan vs Election Tribunal, Madras(3) and Adi Pherozshah Gandhi vs H. M. Seervai, Advocate General of Maharashtra, Bombay.(4) Before dealing with the contentions advanced on this preliminary point, let us have a look at the relevant provisions of the Act and the Code of Civil Procedure.
Section 87(1) of the Act lays down that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits.
In other words the provision of the Code of Civil Procedure apply to the trial of an election petition only where there is no express provision in the Act and there is no inconsistency with the Act.
Section 98 indicates the categories of orders which the High Court may make at the conclusion of the trial of an election petition.
Such an order may be an order "(a) dismissing the election petition, or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
" Section 99 requires that the High Court shall at the time of making an order under Section 98 in the case where any charge of corrupt practice having been committed at the election is proved, make a further order naming the person or persons guilty of the corrupt practice and also paying costs.
Section 116A runs thus: "Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court 78 on any question (whether of law or fact) from every order made by a High Court under Section 96 or Section 99.
" Sub section (2) prescribes a period of thirty days limitation within which such an appeal is to be preferred.
In this context Section 116C may also be seen.
It reads as follows: "116C(1) Subject to the provisions of this Act and of the rules, if any, made thereunder, every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the Code of Civil Procedure, 1908 and the Rules of the Court (including provisions as to the furnishing of security and the execution of any order of the Court) shall, so far as may be, apply in relation to such appeal.
" It may be seen that although Section 116A confers a right of appeal from an "order" made under Section 96 or 99, and Section 116C from "any final order" passed by the High Court in proceedings in an election petition, neither of these two sections mentions or catalogues the person or persons who have a right of appeal against such orders.
Barring the exceptional provision in Section 116A, which marks a departure from the Code of Civil Procedure, Section 116C is substantially analogous to Section 96(1) of the Code of Civil Procedure, 1898 which provide "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized. " Just as the term "decree" in Section 96(1) of the Code means an adjudication which "conclusively determines all or any of the matters in controversy in the suit", the expression "any final order" as used in Section 116C of the Act contemplates a conclusive determination of all or any of the matters in controversy in the election petition between the parties.
Clauses (a), (b) and (c) of Section 98 illustrate such "final orders" which have been made appealable under Section 116C of the Act.
In the instant case, the order sought to be impeached in this appeal is of the category mentioned in clause (a) of Section 98 of the Act.
Section 98 also does not specifically mention as to who can appeal against the final orders mentioned therein.
Section 116C of the Act makes the Code of Civil Procedure applicable to the hearing and determination of appeals filed under the Act.
Since the substance and principle embodied in Section 96(1) of 79 the Code is not inconsistent with anything in the Act, we may legitimately look for guidance to Section 96 (1) and other provisions of the Code and also the general principles which govern the right of appeal thereunder.
This being the position, the basic conditions and postulates which govern the right of appeal under Section 96(1) of the Code will apply to an appeal under Section 116C of the Act, also.
As a general proposition, therefore, it may safely be stated that before a person is entitled to maintain an appeal under Section 116C, all the conditions mentioned below, must be satisfied: (1) that the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition, (2) that the person seeking to appeal has been a party in the election petition, and (3) that he is a "person aggrieved", that is a party who has been adversely affected by the determination.
In the present case, these conditions, particularly Nos. (1) and (3), have not been fulfilled.
Before the High Court the appellant did not, at any stage, join the contest.
He did not file any written statement or affidavit.
He did not engage any counsel.
He did not cross examine the witnesses produced by the Election Petitioner and the contesting respondent 1.
He did not appear in the witness box.
He did not address any arguments.
In short, he did nothing tangible to participate in the proceedings before the High Court.
It was not obligatory for the Election Petitioner to join the appellant as a respondent.
There were no allegations or claims in the election petition which would attract Section 82 of the Act.
From that point of view, the appellant was not a necessary party to be impleaded.
Of course, if the appellant had made an application within the time prescribed, in compliance with Section 86(4) of the Act, the Court would have been bound to join him as a respondent.
But the question of Section 86 (4) coming into play never arose as the Election Petitioner had already impleaded the appellant as Respondent 5 in the election petition.
Even so, Respondent 5 did not join the controversy.
He neither joined issue with the contesting respondent 1, nor did he do anything tangible to show that he had made a common cause with the Election Petitioner against Respondent 1.
In fact, the only parties between whom the matters in controversy were at issue, were the Election Petitioner and Respondent 1.
The other respondents, including the appellant, did not participate or side with either contestant in that controversy.
80 Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless, normally "a 'person aggrieved ' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." (As Per James L. J. in Re Sidebothem referred to by this Court in Bar Council of Maharashtra vs M.V. Dabholkar(1) and J. N. Desai vs Roshan Kumar.(2) In the face of the stark facts of the case, detailed above, it is not possible to say that the appellant was aggrieved or prejudicially affected by the decision of the High Court, dismissing the election petition.
We are further unable to accept the wide argument, that since an election petition is in the nature of a representative action on behalf of the whole body of electors in the constituency, on neglect or failure of the election petitioner to file an appeal against the order of dismissal of his election petition, any other elector, particularly who is a respondent in the election petition, can, in view of Sections 109/110 of the Act, be substituted for him for the purpose of filing and continuing the appeal.
It is true that an election petition once filed cannot be abandoned or withdrawn by the petitioner at his sweet will.
Section 109 provides: "(1) An election petition may be withdrawn only by leave of the High Court.
(2) Where an application for withdrawal is made under sub section (1) notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette.
" Section 110 provides the procedure for withdrawal of an election petition.
Its sub section (2) mandates that "no application for withdrawal shall be granted if, in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed".
Sub section (3) lays down that if the application for withdrawal is granted, the petitioner shall be ordered to pay the whole or part of the costs incurred by the respondent.
It further requires that notice of withdrawal shall be published in the Official Gazette.
Clause (c) of Sub section (3) is material.
It provides that any person who might himself have been a petitioner, may within 81 fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and on compliance with the conditions as to security, shall be entitled to be substituted and continue the proceedings upon such terms as the High Court may deem fit.
Section 111 provides for report of the withdrawal by the High Court to the Election Commission.
Section 112(1) provides for abatement of election petition on death of the sole petitioner.
Sub section (2) requires the fact of abatement to be published.
Sub section (3) entitles any person who might himself have been a petitioner to apply and be substituted in place of the deceased to continue the proceeding upon such terms as the High Court may think fit.
Section 116 makes a similar provision on the death of a respondent.
As pointed out in Bijayananda Patnaik vs Satrughna Sahu(1), the principle behind these provisions is that "an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections.
The public of the constituency also is substantially interested in it, as an election is an essential part of the democratic process.
That is why provision is made in election law circumscribing the right of the parties thereto to withdraw.
Another reason for such provision is that the citizen 's at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices.
That is why provision is made for substituting any elector who might have filed the petition in order to preserve the purity of elections.
" But it is equally clear from the language, setting and scheme of the provision in Sections 109 to 116, that they do not, either, in terms, or, in principle, apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court.
Firstly, these provisions are to be found in Chapter IV, under the main caption : `WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS '.
Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of `election petitions ' and also to procedure in respect thereof before the `High Court '.
The provision relating to Appeals in Sections 116A, 116B and 116C, have been included separately, in Chapter `IV A ', captioned "APPEALS".
Secondly, Section 116C, as already noticed, enjoins upon the Supreme Court to hear and determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court.
No doubt, this is, "subject to the provisions of the Act the rules if any, made thereunder".
But this clause 82 only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded expressly or by necessary implication by any provision of the Act.
There is no provision in Chapter IV A of the Act, analogous to Sections 109 to 116 of the Act, which curtails, restricts or fetters an appellant 's right to withdraw an appeal.
Nor is there any such provision in the Code or the Rules of this Court which does so.
If the intention of the Legislature was that the provision of Sections 109 to 116 which apply to the withdrawal of election petitions should also govern the withdrawal of appeals, there was no difficulty in inserting similar provisions in Section 116C or elsewhere in Chapter IV A.
In this view we are fortified by the decision of this Court in Bijayananda Patnaik 's case (ibid).
In that case the provisions of Sections 116 A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration.
The facts were that one S filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly.
On the appellant, B 's application, the Tribunal dismissed the petition under Section 90(3), for non compliance with the provisions of Section 82 of the Act.
S went in appeal under Section 116 A to the High Court.
Subsequently, S applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal.
In appeal by special leave, this Court held that S had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so.
In this connection, the observations made by Wanchoo, J. (as he then was), speaking for the Court, at page 547 of the Report, are apposite and may be extracted : "When sub section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provision. .
There is however, no express provision in Chap.
IV A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter.
Nor do we think that sections 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed.
One reason for this view may at once be stated.
The losing party is not bound to file an appeal and if he does not, nobody else has the right to do so.
The 83 object apparently is that the election petition filed should, if any voter so desires, be heard and decided.
The sections dealing with substitution on death of the petitioner lead to that view : see sections 112 115.
There is no such provision for appeals.
It seems to us that if Parliament intended that the provisions of sections 109 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap.
IV A an express provision could have been easily made to that effect in section 116 A by adding a suitable provision in the section that the provisions of sections 109 and 110 would apply to withdrawal of appeals before the High Court as they apply to withdrawal of election petitions before the tribunal.
In the absence of such a provision in Chap.
IV A, we do not think that the High Court was right in importing the principles of sections 109 and 110 in the matter of withdrawal of appeals before the High Court.
So far therefore as the question of withdrawal of appeals before the High Court under Chapter IV A is concerned, it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a civil court within the local limits of its civil appellate jurisdiction without any limitation on such powers because of sections 109 and 110.
The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under section 116 A as in the matter of an appeal from an original decree before it, and there is no warrant for importing any limitation in the matter on the analogy of sections 109 and 110 of the Act, which expressly deal only with election petitions and not with appeals under section 116 A." On the above reasoning, it was further held that the provisions regarding withdrawal applicable to ordinary Civil Appeals before the High Court are applicable, also, to appeals under Section 116 A. Under Order XXIII, Rule 1(1) of the code of Civil Procedure, an appellant has the right to withdraw his appeal unconditionally, and if he is to make such application, the High Court has to grant it.
If an appellant, who is an aggrieved person under Section 116 C of the Act, has got a right to withdraw or abandon his appeal unconditionally, a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so.
In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very 84 limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act.
In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election petitioner to continue the proceeding under Section 110(3) (c) of the Act.
It will bear repetition that the appellant took no interest, whatever, in the controversy in the Election Petition which was confined only to the election petitioner and respondent 1.
Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116 C, have not been fulfilled in the instant case.
The appellant cannot, by any reckoning, be said to be a `person aggrieved ' by the decision of the High Court, dismissing the Election petition.
We, therefore, allow this preliminary objection and on that ground dismiss this appeal with costs.
section R. Appeal dismissed.
| IN-Abs | One V. Krishna Reddy filed an election petition against Veera Reddy, respondent No. 1, a returned candidate in the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 on the ground that the returned candidate was disqualified to be chosen to fill the post under Section 9A of the Representation of People Act, 1951 inasmuch as he has subsisting contracts with the Government of Andhra Pradesh.
The appellant, Thammarna was impleaded as original respondent No. 5 though he is not a necessary party.
He did not file any written statement.
Neither did he lead any evidence nor did he cross examine the witnesses produced by respondent No. 1 and the election petitioner.
In fact, he did not even participate in the arguments before the High Court.
In the appeal filed by Thammanna against the Judgment dated April 24, 1979 of the High Court of Andhra Pradesh dismissing the election petition filed by Krishna Reddy, a preliminary objection was raised as to whether the appellant had the locus standi to maintain the appeal.
Dismissing the appeal, the Court, ^ HELD: (1) The appellant cannot, by any reckoning, be said to be a 'person aggrieved ' by the decision of the High Court, dismissing the Election Petition.
[84C] (2) Before a person is entitled to maintain an appeal under Section 116C of the Representation of the People Act, 1951 which is analogous to Section 96(1) of the Civil Procedure Code, all the following three conditions must be satisfied: (1) that the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition.
(2) that the person seeking to appeal has been a party in the election petition, and (3) that he is a "person aggrieved", that is a party who has been adversely affected by the determination.
In the present case, these conditions, particularly Nos. (1) and (3) have not been fulfilled.
[79B D] 74 (3) Just as the term "decree" in Section 96(1) of the Civil Procedure Code means an adjudication which "conclusively determines all or any of the matter in controversy in the suit", the expression "any final order" as used in Section 116C of the Representation of the People Act contemplates a conclusive determination of all or any of the matters in controversy in the election petition between the parties.
[78F G] (4) The appellant was not a necessary party to be impleaded as there was no allegations or claims in the election petition which would attract section 82 of the Representation of the People Act.
In this case, the question of the Court joining him as a party respondent under Section 86(4) of the Act also did not arise, as he was impleaded before the High Court as respondent No. 5 though it was not obligatory for the Election Petitioner to do so.
Even so, respondent No. 5 did not join the controversy.
He neither joined issue with the contesting respondent No. 1 nor did he do anything tangible to show that he had made a common cause with the Election Petitioner against respondent No. 1.
In fact, the only parties between whom the matters in controversy, were at issue, were the Election Petitioner and Respondent No. 1.
[79F H] (5) Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless, normally a 'person aggrieved ' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something.
[80A B] Bar Council of Maharashtra vs M. V. Dabholkar, [1975] 2.S.C.C. 703 and J. N. Desai vs Roshan Kumar A.I.R. 1976 S.C. 576 at p. 534 referred to.
(6) The principle that election petition is a representative action on behalf of the whole body of electors in the constituency has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Representation of the People Act and its application cannot be extended to appeals under the Act.
Firstly, these provisions are to be found in Chapter IV, under the main caption: 'WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS '.
Then, the provisions of these sections, also repeatedly refer to the withdrawal or abatement of 'election petitions ' and also to procedure in respect thereof before the 'High Court '.
The provision relating to Appeals in Sections 116A, 116B and 116C, have been included separately, in Chapter 'IV A ', captioned "APPEALS".
[81E G, 83G H, 84A] Secondly, Section 116C, enjoins upon the Supreme Court to hear and determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court.
No doubt this is, "subject to the provisions of the Act and the rules if any, made thereunder".
But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded expressly or by necessary implication by any provision of the Act.
There is no provision in Chapter IV A of the Act, analogous to Sections 109 to 116 of the Act, which curtails, restricts or fetters an appellants ' right to withdraw an appeal.
Nor is there any such provision in the Code or the Rules of this Court which does so.
If the intention of the Legislature was that the provision of Sections 109 to 116 which apply to the withdrawal of election petition, should also govern the withdrawal of appeals, there was no difficulty in inserting similar provisions in Section 116C or elsewhere in Chapter IV A. [81G H, 82A C] 75 Bijayananda Patnaik vs Satrughna Sahu, [1964] 2 S.C.R. 538 at p. 545, followed.
|
ition No. 631 of 1980.
Under Article 32 of the Constitution.) Ram Jethmalani, M. M. Lodha and Harjinder, Singh for the Petitioner.
R. B. Datar, R. N. Sachthey and M. N. Shroff for the Respondents.
FAZAL ALI, J. (Vacation Judge) The detenu was detained under sub Section (t) of Section 3 of The Conservation of Foreign Exchange and Prevention of Smuggling Activities (in short COFEPOSA) by the Government of Gujarat by its order dated January 30, 1980.
The order was passed by Mr. P. M. Shah, Deputy Secretary to the Government of Gujarat who authenticated the said order on behalf of the State Government.
The detenu while making a representation to the State Government also prayed for supply of documents to him in order to make a more effective representation.
These documents however were supplied on March 27, 1980 although the order of detention was itself confirmed on March 21, 1980.
In the representation sent to the Government, the detenu had made a specific prayer that his representation should be forwarded to the Central Government for being considered.
In support of the rule, Mr. Ram Jethmalani, counsel appearing for the detenu raised two points before this Court.
In the first place it was submitted that the counsel on behalf of the detenu has expressly pleaded that the grounds of detention were couched in English, a language which the detenu did not understand at all and these grounds were not explained to him.
A specific ground on this aspect of the matter has been taken in ground No. XIII at page 21 of the petition which may be extracted thus: "That the detenu does not know English.
The grounds of detention and the order of detention were in English.
No vernacular translation of the grounds was given nor they were explained to detenu in a language known to him." This allegation seems to have been denied by the respondents in para 14 of the affidavit of Mr. P. M. Shah, on behalf of the detaining authority, where he stated that the grounds were explained to the detenu in the language known to him.
It was averred in para 5 that one Mr. A. K. Sharma, Police Inspector, C.I.D. (Crime Branch), Ahmedabad had explained to the detenu the order of detention and the grounds communicated to him on January 30, 1980.
This affidavit, in my opinion, is wholly inadmissible in evidence.
If it was 14O0 a fact that Mr. Sharma had personally explained the grounds to the detenu then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the contents of the grounds to the detenu by translating the same in the language which he understood.
No such affidavit is forthcoming.
No Contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenu.
The service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie.
In case of Hadibandhu Das vs District Magistrate, Cuttak & Anr. ; , it was clearly held that merely oral explanation of an order without supplying him a translation in a script or language which the detenu understood amounted to a denial of right of being communicated the grounds.
Tn the instant case, it is not even alleged in the affidavit of Mr. Shah that any translation or translated script of the grounds was furnished to the detenu.
In case of Hadibandhu Das vs District Magistrate, Cuttack & ground alone.
I would however like to observe that in cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands.
A bare denial at the stage when Habeas Corpus petition is filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.
We have pointed out in several cases that courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22(5) to the letter of the law, because a non compliance of these safeguards would itself be sufficient to vitiate the order of detention.
Despite our repeated observations, unfortunately, however the detaining authority continues to pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenus.
We hope an trust that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the Constitution more particularly because the liberty of the subject is.
in peril.
14O1 Another ground taken by Mr. Ram Jethmalani in support of the rule is that although the detenu had made a specific prayer in his representation to the State Government that his representation should he forwarded to the Central Government for consideration under section 11 of the Act, yet the detaining authority did not choose to forward the representation to the Central Government at all.
This position is admitted and the defence taken is that as the detenu had himself sent a copy to the Central Government, the detaining authority did not think it necessary to forward the representation to the Central Government.
This defence is wholly unacceptable.
Section l l of the Act confers a constitutional right on the detenu to have his representation considered by the Central Government.
It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is.
The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation of the detenu to the Central Government.
For these reasons therefore I am satisfied that the continued detention of the detenu in this case is legally invalid.
I therefore allow this application and direct that the detenu be released forthwith.
As the detenu has now been transferred to Bhavnagar, the order be sent to the Jailor at Bhavnagar.
S.R. Petition allowed.
| IN-Abs | Allowing the petition, the Court ^ HELD: 1.
Where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language, which he understands.
[14O0 D E] A bare denial at the stage when the Habeas Corpus petition is filed in the court by the detaining authority that those formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.
[14O0 E F] Hadibandhu Das vs District Magistrate, Cuttack and Anr. ; followed.
Courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22(5) to She letter of the law, because a non compliance of these safeguards would itself be sufficient to vitiate the order of detention.
[14O0 F G] 3.
Section ll of COFEPOSA confers a constitutional right on the detenu to have his representation considered by the Central Government.
It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is.
The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation to the Central Government.
[14O1 B D] [The Court expressed the hope that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the Constitution, more particularly, be cause the liberty of the subject is in peril.]
|
ivil Appeal Nos.
437 437 and 1460 of 1970.
Appeals by Special Leave from the Judgments and orders dated 24 3 1969 & 10 11 1969 of the Kerala High Court in Writ Appeal Nos, 451/79, 630/69 & 807/69.
A. B. Divan, M. Vellapally and T. M. Ansari for the Appellant in CA 437/70.
M. Vellapally and T. M. Ansari for the Appellant in C.A. 438/ 70.
Kapil Sibal, M. Vellapally and T. M. Ansari for the Appellant in C.A. 438/70.
Kapil Sibal, M. Vellapally and T.M. Ansari for the Appellant in 1460/70.
K. T. Harindranath and K. M. K. Nair for the Respondents in all the appeals.
The Judgment of the Court was delivered by KAILASAM, J.
These three appeals are by special leave granted by this Court against the judgment and order of the High Court of Kerala in Writ Appeals Nos. 451, 630 and 807 of 1969 respectively.
The questions that arise for consideration in all the three appeals and the same and can be dealt with together.
As the facts so far as they are necessary for decision in these appeals are similar, we will confine the judgment to the facts in Civil Appeal No. 437 of 1970.
The appellant in Civil Appeal No. 437 of 1970 is Travancore tea Estates Co. Ltd. Vandiperiyar in Kerala State.
The 1st respondent is the State of Kerala and respondents nos.
2 and 4 are the authorities functioning under the Kerala Motor Vehicles taxation Act (Act 24 of 1963) which will hereafter be referred to as the Act, was brought into force on 1 7 1963.
The Act provides that "a tax at the rates fixed by the Government by notification in the Gazette not exceeding the maximum rates specified i the First Schedule shall be levied on all Motor Vehicles used or kept for use in the State.
" The appellant company owned 17 motor Vehicles, tractors, trailers and lorries all of which are registered in the company 's name under the .
The company alleged that the vehicles were purchased by it solely and exclusively for use in the estates and intended to be used only for agricultural purpose and were not used nor kept for use in the State as contemplated under section 3 of the Act.
The company is a tea plantation having eight estates which lie contiguous to each other and have an extent of 1391 9422.44 acres in the aggregate.
The company for the purpose af plantation are maintaining roads fit for vehicular traffic in the eight estates covering a length of 131 miles in the aggregate on 23rd September, 1964 a Bedford Lorry owned by the company and bearing registration No. KLK 1540 was seized by the police and taken into custody under section 13 of the Act.
According to the appellant the seizure was effected in Tengamullay Estate which is one of the eight estates owned by the company.
The company wrote to the Department on 28 12 1964 stating that the vehicle was being used for agricultural purpose on private roads in the Estates and the company is not liable to pay tax and asked for the release of the vehicle.
On the company paying a sum of Rs. 3,150/ as tax under protest for the period between 1 7 63 to 31 12 94, the vehicle was released.
The department proceeded to prosecute the appellant in the Peermade 1st Class Magistrate 's Court and the case is still pending, The appellant company filed o. P. No. 199/65 before the High Court of Kerala claim in that they were not liable to pay any tax on the motor vehicles.
The High Court by its judgment dt.
3rd March, 1966 directed the Regional Transport officer, Kottayam 2nd respondent herein, to examine the question raised in the writ petition and to pass final orders.
It also directed that if the petitioner was aggrieved with the order he was at liberty to approach the High Court.
In the meanwhile it directed stay of prosecution and collection of tax the matter was taken up for consideration by the 2nd respondent.
The 2nd respondent rejected the pleas of the appellant and by his order dt.
12 4 68 held that the 13 vehicles mentioned in the original Petition were liable to pay was under they act.
The appellant filed a petition before the High Court for appropriate relief.
The High Court disposed of the petition o. P. No. 2173/68 along with o. P No. 2081/68 filed by Peermade Tea Co. who are the appellants in C.A. 438/70 in this Court, by a common order dt.
19th December, 1968.
The learned Judge held that the language in section 3 of the Act showed that there is a departure from the legislative policy of restricting the tax liability only to vehicles using pubic roads.
It held that the tax is imposed by section 3 on alt the motor vehicles used or kept for use in the State irrespective of any question as to whether they are used or kept for G use on pubic roads or not.
It rejected the contention on behalf of the appellant that legislature must be taken to have intended to levy such tax only on motor vehicles using or kept for use on public roads.
The learned Judge also held that the Act is not beyond the competence of the legislative powers of the State as the tax is leviable by the State in respect of all motor vehicles are used or kept for use in the State quite irrespective of any question as whether or not such vehicles are used on public roads.
1392 Aggrieved by the decision of the single Judge the appellant took the matter up on Letters Patent Appeal.
The main contention raised on behalf off the appellant was that the learned single Judge was in error in holding that all motor vehicles used or kept for use in the State quite irrespective of any question as to whether or not they are used on public roads, is erroneous in so far as it related to motor vehicles used or kept exclusively for use in private estate and not used or kept for use on the public roads of the State.
The Letters Patent Bench affirmed the decision of the single Judge and rejected the appeal.
The constitutional validity of the Act was not questioned before the Bench.
Holding that the legislative Entry 57 if the State list only required that the vehicles should be suitable for use on roads and the charging section only provided that the vehicle should be used or kept for use in the State the required conditions were satisfied and there would be no justification for reading into the statute words that and not there, and restricting the levy only on vehicles using public roads.
While not contesting the correctness of the observation of the Bench of the Kerala High Court that the levy cannot be restricted to vehicles using the public roads, it was submitted that the words in section 3 cl.
(1) of he Act "shall be levied on all motor vehicles used or kept for use in the State" should be confined to vehicles used or kept for use on the public roads of the State, and not to vehicles that arc intended to be confined within the premises of the Estate.
In other words the controversy between the parties before the R.T.O. the single Judge of the High Court and the Bench of the High Court can be stated by extracting the question at issue as framed by the R.T.O. "I understand that the roads used by these vehicles (even those within the estates) come under the definition of "Public Roads and Public Place" since at present I have .
not afforded opportunity to the company to refute the basis on which that fact is to be found.
I make it clear that I am not relying on that matter as a basis for this order and I reserve my right to investigate that matter if needed be later.
I assume for argument sake (without conceding) that the estate roads are private roads.
Even in that case, I am of .
the view that the company 's vehicles are liable to pay tax.
It is not in dispute that the vehicles are used and are kept for use within the State (The company roads arc within the Kerala State).
It is also not disputed that the vehicles are registered and their registration certificates are current and they are usable motor vehicles.
The tax levied under the K.M.V.T. Act is a tax on the possession of usable motor 1393 vehicle and it is realised for the propose of State Revenue.
Such being the nature of the levy according to me, I feel that irrespective of the question whether the road on which the vehicle is intended to be used is private or public, the tax is attracted.
" The question that falls for decision is whether on the assumption that the motor vehicles are used or kept for use within the estate, and not intended to be used on public roads of the State; the tax is leviable? In order to appreciate the question raised, it is necessary to refer to the relevant entry in the Constitution, the provisions of the Act and the and the decision relating to the question rendered by this Court.
(Entry 57 in List II of the Constitution relates to taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III.
This entry enables the State Government to levy a tax on all vehicles whether mechanically propelled or not, suitable for use on roads.) (emphasis supplied).
There is no dispute that the vehicles are mechanically propelled and suitable for use on roads.
Section 3 of the impugned Act (Kerala Motor Vehicles Taxation Act (Act 24 of 1963) provides that a tax "shall be levied on all motor vehicles used or kept for use in the State.
" The levy is within the competence of the State legislature as entry 57 in List II authorises by on vehicles suitable for use on roads.
It has been laid down by this Court in "Bolani Ores Ltd. vs Orissa," that under Entry 57 of List II, the power of taxation cannot exceed compensatory nature which must have some nexus with the vehicles using the roads i.e. public roads.
If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed.
If the words used or kept for use in the State is construed as used or kept for use on the public roads of the State, the Act would be in conformity with the powers conferred on the State legislature under Entry 57 of List II.
If the vehicle are suitable for use on public roads they are liable to be taxed.
In order to levy a tax on vehicles used or kept for use on public roads of the State and at the same time to avoid evasion of tax the legislature has prescribed the procedure.
Sub section 2 of sec.
3 provides that the registered owner or any person having possession of or control of a motor vehicle of which a certificate of registration is current shall for the purpose of this Act be deemed to use or kept such vehicles for use 1394 in the State except during any period for which the Regional Transport Authority has certified in the prescribed manner that the motor vehicle has not been used or kept for use.
Under this sub section there is a presumption that a motor vehicle for which the certificate of registration is current shall be deemed to be used or kept for use in the State.
This provision safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State.
At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain a certificate of non user from the prescribed authority.
In order to enable the owner of the vehicle or the person who is in possession or being in control of the motor vehicle of which the certificate of registration is current to claim exempting from tax he should get a certificate in the prescribed manner from the Regional Transport Officer.
Section 5 of the Act provides for exemption from payment of tax under certain circumstances.
It enables the registered owner or the person having possession or control of such vehicle to give previous intimation in writing to the R.T.O. that the vehicle would not be used for such period and at the same time surrender certificate of registration and permit of the vehicle.
Section 6 enables the registered owner or a person in possession or control of such a vehicle to get refund of tax if conditions specified in section 6 are satisfied.
Thus in order to enable the registered owner or person in possession or control of a vehicle to get exemption of tax, advance intimation of the R.T.O. along with the surrender of certificate of registration is necessary.
The provision of section 3, sub sec.
(2) as well as 6. 5 and section 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper cases.
Though the purpose of the Act is to tax vehicles that are used or kept for use on the public roads of the State, the State is entitled for the purpose of safeguarding the revenues of the state and to prevent evasion of the tax, to enact provision like provision as in section 3 raising ' a presumption that the vehicle is used or kept for use in the Situate without any further proof unless exemption is claimed under section 3(2), section 5 and s.6.
It may be observed that reading sections 3, 5 and 6 it is clear that a levy of tax is contemplated only on the vehicles.
that are used or kept for use on the public roads of the state.
`While we agree with the contentions of the learned counsel for the appellant that the tax is only eligible on vehicles used or kept for use on public roads, we must deserve that in order to claim exemption from payment of tax requirements of section 3(2) or sections 5 and 6 should be satisfied.
Surrender of the registration certificate 1395 contemplated under section 5 is for making sure that the motor vehicle is not being put to any use and does not have the effect of annulling the certificate of registration.
If the requirement contemplated under the Act is not satisfied the registered owner or person m possession or control of the vehicle would not be entitled to claim any exemption from payment of tax '.
It remains for consideration as to what is the appropriate order that should be passed on the facts and circumstance of this case.
As a general proposition of law as exemption from payment of tax had not been claimed and obtained as required under this Act, the appellant would be liable to pay tax but as already pointed out and set out clearly in the order of the R.T.O., the question that was raised and disputed was whether on the assumption that the vehicles were kept for use in the states alone and not for use on the public roads of the State, tax is leviable.
The authorities proceeded on the basis that even assuming that the vehicles were not intended to be used on the public roads, they are liable to tax.
In this view, the appellant did not apply for exemption or notify non user as required under the provisions of the Act.
But on the facts and circumstances of the case it is clear that the appellant claimed for exemption from tax on the ground that it was not being used on the public roads.
In the circumstances of the case we have to take it that though, in terms, requirement of sections 3 and 5 have not been complied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis.
But as has been specifically stated by the R.T.O., the question whether estate roads are.
public roads is reserved for further investigation and decision.
Equally the R.T.O. will be at liberty to act under section 5(2) of the Act and decline exemption from the liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period on the public road.
Before concluding, we would refer to a contention raised by the learned counsel based on the decision of this Court in Bolani Ores Ltd. vs Orissa, (supra).
The plea of the learned counsel is that the word "motor vehicle" should be understood as defined by section 2(18) of the and excluded from taxation motor vehicles "used solely upon the premises of the owner.
" As the vehicles with which we arc concerned were claimed to have been kept for use solely in the premises of the company, it was contended that the vehicles are not exigible to tax.
This Court in the decision cited was dealing with the Orissa Motor Vehicles Taxation Act, 1930.
Section(2c) of the Orissa Taxation Act adopted the definition of Motor vehicles Act as found in Motor Vehicles Act, 1914.
The Motor vehicles Act. ]914 was repealed and replaced by the Motor Vehicles The definition of motor vehicle ' in section 2(18) of the excluded motor vehicles used solely upon the premises of the owner.
The Orissa Motor vehicles Taxation Act was amended and orissa Amendment Act, 1943 re enacted the provisions of the Taxation Act. 'Motor Vehicles ' was defined under section 2(18) of the excluding vehicles used solely upon the premises of the owner.
Subsequently the definition of 'motor vehicle ' under section 2(18) of the was amended by the Act 100 of 1956 which confined the exemption from taxation to "motor vehicles of a special type adopted for use only in a factory or in any other enclosed premises.
" The exemption from tax only be claimed after amendment to section 2(18) by Act, 100 of 1956, if the vehicle was of special type adopted for use only in a factory or in any other enclosed premises and the exemption that was avail able before the amendment by Act 100 of 1956 to Motor Vehicles used solely upon the premises of the owner was taken away.
This Court held "if the subsequent, Orissa Motor Vehicles Taxation (Amendment) Act, 1943, incorporating the definition of`motor vehicle ' referred to the definition of 'motor vehicle ' under the Act as then existing, the effect of this legislative method would, in our view, amount to and incorporation by reference of the provisions of section 2(1) of the Act in section 2(c) of the Taxation Act .
Any subsequent argument in the Act or a total repeal of the Act under a fresh legislation on that topic would not affect the definition of 'motor vehicle ' in section 2(c) of the Taxation Act.
" As a result this Court held that the definition of 'motor vehicle ' given in section 2(18) of the Motor Vehicles Act, 1939 before the amendment by Act 100 of 1956 was applicable.
Relying on this decision, the learned counsel submitted that the test that is to be applied to determine whether motor vehicle is liable to tax or not is whether it comes under the exemption provided by under section 2(18) of the before the amendment.
We are unable to accept the contention mainly on the ground that the Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came into force on 18 3 63.
Section 2(1) of the Taxation Act provided that words and expression used but not defined in the Motor Vehicle Act, 1939 (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act.
On the date when the Kerala Motor Vehicles Taxation Act was enacted, was amended by Act 10() of 1956 and the amended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use only in a factory or in any other enclosed premises.
The amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the ,.
amendment of the definition of 'Motor Vehicle ' by Act 100 of 1956 1397 In this view we feel that the decision in Bolani 's case (supra) will not be of any assistance to the learned counsel for the appellants.
The appeals are allowed to the extent indicated above.
But in the circumstances there will be no order as to costs.
S.R. Appeals allowed in part.
| IN-Abs | The Kerala Motor Vehicles Taxation Act (Act 24 of 1963) was brought into force on 1 7 63.
The Act provides that a "tax at the rates fixed by the Government by notification in the Gazette not exceeding the maximum rate specified in the First Schedule shall be levied on all motor vehicles used or kept for use in the state".
The appellant company owned 17 motor vehicles, tractors, trailers and lorries all of which are registered in the Company 's name under the Motor Vehicles Act.
The Company alleged that the vehicles were purchased by it solely and exclusively for use in the estates and intended to be used only for an cultural purpose and were not used nor kept for use in the State as contemplated under section 3 of the Act.
The Company is a tea plantation having eight estates which lie contiguous to each other and have an extent of 9422.44 acres in the aggregate.
The Company for the purpose of plantation are maintaining roads fit for vehicular traffic in the eight estates covering length of 131 miles in the aggregate.
On 23rd September, 1964 a Bedford Lorry owned by the Company and bearing registration No. KLK 1540 was seized by the Police and taken into custody in Tangamullay Estate which is one of the estates owned by the Company but later released on payment under protest a sum of Rs. 3150/ as tax for the period between 1 7 1963 to 31 12 64.
The appellant Company filed O.P. 199/65 before the High Court of Kerala claiming that they were not liable to pay any tax on the Motor Vehicles The High Court remanded the matter to the Transport Authority for a finding on the question raised.
Since the Transport authorities was of the view that Section 3 covers private roads as well and decided against the appellant, the appellant moved the High Court once again in O.P. 2173/68.
Having lost before the single bench and the Division Bench in the Letters Patent appeal, the appellant same up in appeal by special leave.
Allowing the appeals in part, the Court ^ HELD: 1.
On reading sections 3, S and 6 of the Kerala Motor Vehicles Taxation Act (Act 24 of 1963), it is clear that a levy of tax is contemplated only on the vehicles that are used or kept for the use on the public roads of the State.
[1394G] Bolalni ores Ltd. vs State of Orissa, ; @ 155, explained and distinguished.
Entry 57 in List IT of the Constitution relates to taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tram 1389 cars subject to the provisions of entry 35 of List III This entry enables the A State Government to levy a tax on all vehicles whether mechanically propelled or not, suitable for use on roads.
Section 3 of the Kerala.
Motor Vehicles Taxation Act (Act 24 of 1963) provides that a tax "shall be levied on all motor vehicles used or kept for use in the State".
The vehicles in the instant case are mechanically propelled and suitable for use on roads.
The levy is within the competence of the State Legislature as Entry 57 in List.
II authorises the levy on vehicles suitable for use on roads.
[1393 B E] 3.
In order to levy a tax on vehicles used or kept for use on public roads of the Stare and at the same time to avoid evasion of tax the legislature has prescribed the procedure.
Under sub section 2 of section 3 there is a presumption that a motor vehicle for which the certificate of registration is current shall be deemed to be used or kept for use in the State.
Section 3(2) safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State.
At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain Q certificate of non user from the prescribed authority.
In order to enable the owner of the vehicle or the person who is in possession or being in control of the motor vehicles of which the certificate of registration is current to claim exemption from tax he should get a certificate in the prescribed manner from the Regional Transport officer.
Section 5 provides for exemption from payment of tax under certain circumstances.
Section 6 enables the registered owner or a person in possession or control of such a vehicle to get refund of tax if the conditions specified therein are satisfied.
Thus in order to enable the registered owner or person in possession or control of a vehicle to get exemption of tax, advance intimation to the R.T.O. along with the surrender of certificate of registration is necessary.
The provision of section 3 sub sec.
(2) as well as section 5 and section 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper cases.
Though the purpose of the Act is to tax vehicles that are used or kept for use on the public roads of the State, the State is entitled for the purpose of safeguarding the revenue of the State and to prevent evasion of the tax to enact provision like provision as in section 3 raising a presumption that the vehicle is used or kept for use in the State without any further proof unless exemption is claimed under section 3(2), section 5 and section 6.
[1393 G H, 1394 A G] 4.
In order to claim exemption from payment of tax requirements of section 3(2) or sections 5 and 6 should be satisfied.
Surrender of the registration certificate contemplated under section 5 is for making sure that the motor vehicles is not being put to any use and does not have the effect of annulling the certificate of registration.
If the requirement contemplated under the Act is not satisfied the registered owner or person in possession or control of the vehicles would not be entitled to claim any exemption from payment of tax.
[1394 H. 1395 A Bl 5.
The Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came into force on 18 3 63.
Section 2(1) of the Taxation Act provides that words, and expression used but not defined in the (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act.
On the date when the Kerala Motor Vehicles Taxation Act was enacted, was amended (by Act 100 of 1956) and the emended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use 1390 only in factory or in any other enclosed premises.
This amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the amendment (by Act 100 of 1956) of the definition of "motor Vehicle" in section 2(18) of the (Central), 1939.
[1396 F H, 1397
|
ivil Appeal Nos.
1088 of 1976 and 480 of 1977.
Appeals from the Judgments and Orders dated 19 4 1976 and 12 10 1976 of the Gujarat High Court in S.C.A. No. 495/76 and S.C.A. No. 1641/76 respectively.
P.R. Mridul, P.H. Parekh and C.B. Singh and Miss Vineeta Caprihan for the Appellant in CA No. 480/77.
65 Gobind Das, A.N. Karkhanis and T. Sridharan and Mrs. Sunanda Bhandare for the Respondent in CA No. 480/77.
Y.S. Chitale, P.H. Parekh, R. Karan Jawala and Miss Vineeta Caprihan for the Appellant in CA No. 1088/76.
Y.M. Tarkunde, K.L. Hathi and P.C. Kapur for the Respondent in CA No. 1088/76.
Shanker Ghosh, G.B. Pai, and D.N. Gupta for the Intervener.
(Superintendent, Mines and Quarries, Bisra Stone Lime Co. Ltd. & Anr.) Anil Kumar Gupta for the Intervener (Baba Jha Bhai Talekar).
The Judgment of the Court was delivered by GUPTA, J.
A common question arises for consideration in these two appeals relating to the mode of calculating fifteen days ' wages of a monthly rated employee under section 4(2) of the (hereinafter referred to as the Act).
Section 4(2) provides: "For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days ' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of an employee employed in a seasonal establishment, the employer shall pay the gratuity at the rate of seven days ' wages for each season." "Wages" has been defined in section 2(s) of the Act as follows: ""wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.
" It is not necessary to state the facts in any great detail.
In both cases the respondent was a monthly rated employee and the appellant, a public limited company, was his employer.
In Civil Appeal No. 1088 of 1976 (Shri Digvijay Woollen Mills Limited appellant vs 66 Shri Mahendra Prataprai Buch respondent) the respondent ceased to be an employee on attaining the age of superannuation after completing 19 years of service.
The appellant company calculated the amount of gratuity payable to him on the basis that fifteen days ' wages was half of the monthly wages last drawn by him.
The respondent demanded an additional sum as gratuity on the ground that his monthly wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and his fifteen days ' wages worked out accordingly, not by just taking half of his wages for a month of 30 days or fixing his daily wages by dividing his monthly wages by 30.
The Controlling Authority under the Act accepted the respondent 's contention and his decision was affirmed by the appellate authority.
A division bench of the High Court of Gujarat at Ahmedabad summarily dismissed the petition under Article 227 of the Constitution made by the appellant company challenging the decision of the authorities under the Act.
The learned Judges however gave reasons in support of the order made.
The appeal before us is by special leave.
In Civil Appeal 480 of 1977 (The Maharana Mills Limited appellant vs Shri Gopal Das Ladhabhai Kakkad respondent) the respondent resigned his job after a little over 22 years of service.
The appellant company paid him gratuity calculating his daily wages by dividing his monthly wages by 30 and computing fifteen days ' wages on that basis.
Here also the respondent claimed an additional sum as gratuity and the basis of the claim was the same as in the other appeal.
The Controlling Authority accepted the respondent 's contention and the appellate authority affirmed his decision following the view taken by the Gujarat High Court in the other case.
In this case also the Gujarat High Court summarily rejected the petition made by the appellant company challenging the decision of the authorities under the Act.
This appeal however is brought on a certificate granted by the High Court.
In dismissing the petition in Digvijay Woollen Mills case the division bench of the Gujarat High Court observed as follows: "The employee is to be paid gratuity for every completed year of service and the only yardstick provided is that the rate of wages last drawn by an employee concerned shall be utilised and on that basis at the rate of fifteen days ' wages for each year of service, the gratuity would be computed.
In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month.
He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages 67 and dearness allowance are always fixed by taking into consideration this economic reality. .
A worker gets full month 's wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days.
The other extra holidays may make some marginal variation into 26 working days, but all wage boards and wage fixing authorities or Tribunals in the country have always followed this pattern of fixation of wages by this method of 26 working days.
" The view expressed in the extract quoted above appears to be legitimate and reasonable.
Ordinarily of course a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court cannot be called perverse.
It is not necessary to consider whether another view is possible.
The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act.
We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse.
Incidentally, to indicate that treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth and General Mills Company Ltd. vs Workmen and other etc.(1) which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi.
In the award schemes were framed relating to the payment of gratuity.
The expression "average of the basic wage" occurring in the schemes was explained by this Court as follows: "It was also urged by Mr. Ramamurthi that the expression "average of the basic wage" in the definition of "wages" in Cl.
4 of the Schemes is likely to create complications in the implementation of the Schemes.
He urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression "wages" will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced.
We do not think that there is any cause for such apprehension.
The expression "average of the basic wage" can only mean the wage earned by a workman during a month divided by the number of days for which he has worked 68 and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable.
Counsel for the employers agree to this interpretation.
" In the view we take we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view or the other on the question involved in these appeals; also, the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days ' wages under section 4(2) of the .
The appeals are dismissed, in civil appeal 480 of 1977 with costs, in civil appeal 1088 of 1976 this Court while granting special leave on September 22, 1976 had directed the appellant to pay the costs of the appeal in any event accordingly respondent Mahendra Prataprai Buch will be entitled to his costs.
P.B.R. Appeals dismissed.
| IN-Abs | Section 4(2) of the provides that for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of 15 days ' wages based on the rate of wages last drawn by the employee concerned.
The employers sought to pay gratuity by dividing the workman 's monthly wages by 30 and computing the 15 days ' wages on that basis but the workman demanded that his monthly wages should be taken as what he got for 26 working days and not by taking half of his wages in a month of 30 days.
The Controlling Authority upheld the workman 's contention.
In dismissing the employer 's petition under article 227 of the Constitution the High Court observed that a worker received a full month 's wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days and, therefore, gratuity payable to him should be calculated on this basis.
Dismissing the employers ' appeals, ^ HELD: The view taken by the authorities, and upheld by the High Court, is not in any way unreasonable.
Although a month is understood to mean 30 days, the manner of calculating gratuity payable under the Act to employees who worked for 26 days a month followed by the High Court cannot be called perverse.
[67C] Treating monthly wages as wages for 26 working days is not new or unknown.
The expression "average of the basic wage" occurring in an award has been interpreted by this Court to mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable to the workman.
[67D & H] Delhi Cloth and General Mills Company Ltd. vs Workmen and others etc., [1969]]2 SCR 107, referred to.
|
Civil Appeal No. 1057 of 1970.
From the Judgment and order dated 3 11 1969 of the Punjab and Haryana High Court in R.S.A. No. 1456/64.
section K. Sinha for the Appellant.
Hardev Singh, section K. Bagga and Mrs. section Bagga for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by certificate granted by the Punjab and Haryana High Court is from the judgment of a Full Bench of that Court answering the following question referred to it: 87 "Whether by universal custom among the Sikh Jats of the Punjab, a widow does not forfeit her life estate in her husband 's property by reason of her remarriage in Karewa form with her husband 's brother, and if so, whether the custom admits of exceptions among different tribes of Sikh Jats and in particular among Dhaliwal Jats of Muktsar Tehsil of Ferozepur District.
" The relevant facts are these.
The first three respondents, Bakhtawar Singh, Jit Singh and Chand Singh, and the deceased husband of the appellant Sada Kaur were brothers.
The appellant 's husband died sometime in the year 1937 and a few months later she married the third respondent Chand Singh who was a younger brother of her husband in Karewa form.
The suit out of which this appeal arises was brought by the first two respondents, Bakhtawar Singh and Jit Singh, as plaintiffs for a declaration that they were entitled to two third share of the land in possession of the present appellant Sada Kaur which belonged to the appellant 's deceased husband.
Appellant Sada Kaur and her second husband Chand Singh were impleaded as defendant Nos. 1 and 2 respectively.
The plaintiffs ' case was that Sada Kaur having married for the second time had forfeited her interest in her deceased husband 's estate.
The parties are Dhaliwal Jats of Muktsar Tehsil in the Ferozepur District of Punjab.
In her written statement Sada Kaur pleaded that the parties were governed by customary law and according to their custom a widow marrying her deceased husband 's brother did not forfeit her interest in the estate of her deceased husband.
The plaintiffs filed a replication stating that according to the custom governing Dhaliwal Jats of Tehsil Muktsar, a widow on remarrying even her deceased husband 's brother forfeited her right in the estate.
The only question that arises for consideration in the present appeal is whether there is a custom governing the parties to the suit according to which on remarriage the widow forfeits her interest in the estate of her deceased husband as claimed by the plaintiffs.
The trial court declined to grant a declaration as asked for by the plaintiffs who preferred an appeal to the District Judge which was allowed.
Sada Kaur took a second appeal to the High Court challenging the decision of the lower appellate court.
The learned single Judge before whom the second appeal came up for hearing was inclined to accept the plaintiffs ' case and dismiss the appeal but felt that a Full Bench of three learned Judges of the Punjab High Court in an earlier case, Charan Singh vs Gurdial Singh(1) appeared to have taken a contrary view on the question and referred the appeal to a larger bench.
A Division Bench of the High Court thereafter referred the case to a Full Bench of five Judges and it is the Judgment of this Full Bench that is under appeal before us.
88 In Mara and others vs Nikko and others(1) this Court observed that it is "well known" that "custom in the Punjab changes from District to District, Tehsil to Tehsil and Pargana to Pargana".
The judgment under appeal relies mainly on the riwaj i am of Ferozepur District compiled in 1915 by M. M. L. Currie, Settlement Officer.
The evidentiary value of the entries in the riwaj i am has been discussed in more than one decision of this Court.
In Mohant Salig Ram vs Mst.
Maya Devi(2) it was held: "There is no doubt or dispute as to the value of the entries in the riwaj i am.
It is well settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case.
Whether, for instance, the riwaj i am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but whether, on the other hand, the custom as recorded in the riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened, likewise, whether the riwaj i am affects adversely the rights of the families who had no opportunity whatever of appearing before the revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it.
" There is however no material to suggest that the riwaj i am in this case suffers from any such infirmity.
In Jai Kaur and others vs Sher Singh and others(3) this Court has said: "The value of entries in the riwaj i am has . . been repeatedly stressed.
That they are relevant evidence under section 35 of the Evidence Act is clear and the fact that the entries therein are the result of careful research of persons who might also be considered to have become experts in these matters, after an open and public inquiry has given them a value which should not be lightly under estimated.
There is therefore an initial presumption of correctness as regards the entries in the riwaj i am. ." Question No. 47 of Currie 's compilation reads: 89 "What is the effect of unchastity upon the right of a widow to the estate of her deceased husband ? What is the effect of her remarriage ?" The answer to the question in so far as it deals with remarriage is as follows: "At last settlement Mr. Francis wrote: `unchastity or remarriage deprives a widow of her right to the property '.
The Muktsar Code gives a similar answer. .
Further (on page 124) it says: Whenever a widow remarries, even if she marry the brother of her deceased husband, she loses her right to her deceased husband 's estate, which reverts at once to his agnates (mostly Sikh Jats, Kumhar, Khatri, Lohar, Bodla, Chishti, Wattu).
If a son less widow in possession of her husband 's estate marries his brother, she is often allowed to remain in possession of her deceased husband 's estate for her life time (Bagri jats, Musalman jats and Rajputs) .
As regards the effect of remarriage, all tribes that admit widow remarriage agree that no matter whom the widow marries, she forfeits all rights to her deceased husband 's estate.
" The answer is followed by a note recorded by the compiler saying: "Despite the rulings to the contrary .
I am convinced that the above answer is a true exposition of the custom".
The rulings to the contrary which relate to jats of Ferozepur District are: Didar Singh vs Mst.
Dharmon(1), Punjab Singh vs Mst.
Chandi(2) and Mst.
Indi vs Bhangra Singh(3).
Out of these three cases again only Didar Singh 's case relates to Dhaliwal jats.
The impugned judgment points out that as against these cases the riwaj i am mentions numerous instances, 59 of them relate to Jats, which support the compiler 's note that on remarriage, no matter whom she marries, the widow forfeits her right to her deceased husband 's estate.
There are also three instances wherein remarriage did not result in forfeiture of the widow 's right.
Didar Singh 's case which relates to Dhaliwal jats was of the year 1888.
The impugned judgment mentions four instances from the riwaj i am of the years 1911 12 supporting the case of forfeiture.
No instance has been found either way relating to Dhaliwal jats of Tehsil Muktsar.
However, these four instances relate to Dhaliwal jats of Tehsil Mogha which is adjacent to Muktsar.
On these facts and figures gathered from the entries in the riwaj i am, the High Court did not find it possible to accept that there was a special custom among Dhaliwal 90 jats of Tehsil Muktsar which permitted a widow who married her deceased husband 's brother to retain her interest in her deceased husband 's estate.
In reaching this conclusion the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same High Court, Charan Singh vs Gurdial Singh (supra) in which the view taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under appeal.
In Charan Singh 's case it was held that as regards jats governed by custom in matters of succession, a widow on remarrying her deceased husband 's brother remains entitled to collateral succession in the family.
The parties in that case were jats from Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was stated too broadly in Charan Singh 's case suggesting as if this was the custom among the jats in the entire State of Punjab.
The basis of the decision in Charan Singh 's case is a statement in Sir W. H. Rattigan 's Digest of Customary Law in the Punjab.
The authoritative value of Rattigan 's compilation has been recognised by the Privy Council in Mst.
Subhani vs Nawab(1) and also by this Court in Mahant Salig Ram vs Mst.
Maya Devi (supra) and Jai Kaur vs Sher Singh (supra).
In Jai Kaur 's case however it was held that "when the custom as recorded in the riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the riwaj i am should ordinarily prevail. " Paragraph 32 of Rattigan 's Digest on which Charan Singh 's case relies states: "In the absence of custom, the remarriage of a widow causes a forfeiture of her life interest in her first husband 's estate which then reverts to the nearest heir of the husband".
It is thus clear that there is no conflict between the statement in Rattigan 's Digest and the entry in riwaj i am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husband 's estate.
However, a number of exceptions to this general custom have also been recorded.
Exception 1 which is relevant for the present purpose is as follows: "Among certain tribes a remarriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widow 's life estate in the property of her first husband.
" The cases cited in support of the special custom relate to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana.
There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar.
It was for the first time in the 12th edition of Rattigan 's book which was published long after Sir Rattigan 's death, the following statement was added: "By custom among the 91 Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husband 's property by reason of her remarriage in Karewa form with her husband 's brother, whether he be the sole surviving brother or there are other brothers as well of the deceased." A decision of the Sindh Judicial Commissioner 's Court, Sant Singh vs Rani Bai(1), has been cited there in support of the statement.
It has been pointed out very clearly by the learned Judge in his order by which he referred the case to a larger bench that Sant Singh 's case does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigan 's book.
The mistake results from relying on the head note of the case as appearing in the Indian Cases as also in the All India Reporter.
Sant Singh 's case in which the parties were Sikh jats from Jullundur District relies on a decision of the Punjab Chief Court: "In Basant vs Pratapa(2) a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not forfeit her life estate in her deceased husband 's property by reason of her remarriage in Karewa form with her husband 's brother whether he be the sole surviving brother or there are other brothers as well of the deceased.
" What is found there as the custom "among the Sikh Jats in the District of Ludhiana" appears in the head notes of the two reports as the custom "among Sikh Jats in the Punjab".
Clearly, the head notes are wrong and do not set out the decision correctly.
That being so, it cannot be said that there is any real conflict between the riwaj i am and Rattigan 's Digest on this point.
In any event the statement cannot be attributed to Sir Rattigan.
Five learned Judges of the Punjab and Haryana High Court composing the Full Bench, after a close examination of the available material on the question whether among Dhaliwal jats of Tehsil Muktsar there is a special custom which permits a widow on remarriage with her deceased husband 's brother to retain her interest in the estate of the deceased, have answered the question in the negative.
On the material before us we find no reason to take a different view.
The facts and figures gathered from the entries in the riwaj i am have not been challenged by the appellant, that the statement introduced in the 12th edition of Rattigan 's Digest is wrong cannot also be questioned.
We therefore dismiss the appeal but in the circumstances of the case without any order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | The first three respondents and the deceased husband of the appellant who were Dhaliwal jats of Muktsar Tehsil in Ferozepur District of Punjab were brothers.
After the death of her husband the appellant married the younger brother of her late husband in Karewa form.
The first two respondents filed a suit for a declaration that having married for the second time, the appellant had forfeited her interest in her deceased husband 's estate and that they were entitled to two third share of the land in her possession.
The appellant on the other hand claimed that they were governed by customary law and according to their custom a widow marrying her deceased husband 's brother did not forfeit her interest in the estate of her deceased husband.
In replication the respondents stated that according to the custom governing Dhaliwal jats of Tehsil Muktsar a widow remarrying even her deceased husband 's brother forfeited her right in the estate.
The trial Court declined to grant the declaration, but the District Judge allowed the plaintiffs ' appeal.
The High Court did not accept the appellant 's claim that there was a special custom.
Dismissing the appeal ^ HELD: The High Court was right in holding that there was no special custom among Dhaliwal jats of Tehsil Muktsar which permitted a widow, on remarriage with her deceased husband 's brother, to retain her interest in the estate of her deceased husband.
It is well known that custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana.
[88A] It has been held by this Court that entries in the riwaj i am compiled in 1915 by Currie, Settlement Officer, are relevant evidence under section 35 of the Evidence Act.
[88F G] Mahant Salig Ram vs Mst.
Maya Devi, and Jai Kaur and others vs Sher Singh and others, referred to.
Entry 47 of the riwaj i am states that whenever a widow re marries, even if she marries the brother of her deceased husband, she loses her right to her deceased husband 's estate and that the estate reverts at once to his agnates.
86 As regards the effect of re marriage, all tribes that admit widow re marriage agree that no matter whom the widow marries she forfeits all rights to her deceased husband 's estate.
[89D] Another authoritative compilation is Rattigan 's Digest of Customary Law in the Punjab.
But when custom as recorded in the riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the riwaj i am would ordinarily prevail.
On this aspect of the custom there is no conflict between the two because Rattigan 's Digest also states that in the absence of custom, the re marriage of a widow causes a forfeiture of her life interest in her first husband 's estate which then reverts to the nearest heir of the husband.
[90E F] One of the exceptions recorded to this general custom, however, is that among certain tribes re marriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widow 's life estate in the property of her first husband.
But among the cases cited in support of the special custom relating to Sikh jats of certain districts of Punjab there is no mention of Dhaliwal jats of Tehsil Muktsar.
It was for the first time that in the 12th edition of Rattigan 's Digest published long after his death that an exception was added that by custom among the Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husband 's property by reason of her remarriage in Karewa form with her husband 's brother, whether he be the sole surviving brother or there are other brothers as well of the deceased.
Sant Singh vs Rari Bai (AIR 1924 Sindh 17=76 Indian Cases 408) on which this exception is purported to be based does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigan 's book.
In Sant Singh 's case the parties were Sikh jats from Jullundur District and Basant vs Pratap on which the Sant Singh 's case relied the parties were Sikh jats from Ludhiana District.
But the headnotes in both cases stated it as the custom "among Sikh jats in the Punjab" which clearly is wrong.
Therefore, it cannot be said that there is any real conflict between riwaj i am and Rattigan 's Digest on this point.
The statement in Charan Singh vs Gurdial Singh, AIR 1961 Punjab 301 that among jats governed by custom in matters of succession a widow marrying her deceased husband 's brother remains entitled to collateral succession in the family is too wide having regard to the facts of the case.
[90H & 91A E]
|
N: Criminal Appeal No. 474 of 1980.
93 Appeal by Special Leave from the Judgment and Order dated 26 9 1979 of the Allahabad High Court in Crl.
Case No. 356/79.
Pramod Swarup for the Appellant.
R. D. Upadhyaya and M. M. L. Srivastava for the Respondent No. 1.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave involves a short point of law.
Proceedings under section 145 was started by the Magistrate against the respondents on the basis of a police report.
After passing a preliminary order on the 29th July, 1976 (wherein the Magistrate had recorded reasons for his being satisfied that a breach of the peace existed), the Magistrate called upon the parties to file their written statements and then after a full enquiry as provided by section 145 the Magistrate passed the final order on 17th July, 1978 declaring the appellant to be in possession of the land in dispute.
Against this order, the respondents moved the High Court under section 482 Cr.
P.C. for quashing the order of the Magistrate.
The High Court found that as there was no clear finding by the Magistrate in the final order that there was an apprehension of breach of the peace, therefore, the final order was bad and the High Court accordingly allowed the petition and remitted the case to the Magistrate.
We have heard counsel for the parties and in our opinion the High Court erred in holding that the final order of the Magistrate was vitiated in absence of a finding that breach of the peace existed at the time the order was passed.
It is not disputed that in the preliminary order there was a clear finding by the Magistrate that apprehension of breach of the peace did exist which was sufficient to give jurisdiction to the Magistrate to initiate the proceedings.
When the parties filed their written statements, they did not state that no dispute between the parties existed but whereas one party said that there was no apprehension of breach from their side, the other side took the stand that there was an apprehension of breach of the peace.
Thus, the stand taken by the two parties was contradictory; hence it must be taken for granted that the apprehension of breach of peace continued to exist and it was not a case where it could be said that no dispute existed, as contemplated under section 145(5) Cr.
After considering the record and evidence produced by the parties, the Magistrate passed the final order in favour of the appellant.
The High Court thought that it was absolutely essential for the Magistrate to give a finding that a breach of peace existed even in 94 the final order.
It may have been proper if the Magistrate had given a finding on this aspect of the matter also but in the circumstances, it can be safely presumed that apprehension of breach of peace existed and such a finding was implicit in the final order passed by the Magistrate so it was not necessary for the Magistrate to repeat what he had said in the preliminary order in the final order also.
Moreover, mere absence of finding by the Magistrate in the final order in the circumstances as mentioned above cannot be such a manifest defect so as to attract the extraordinary jurisdiction of the High Court under section 482 of Cr.
It is, therefore, manifest that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order.
Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceedings unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub section (5) of section 145 of the Code of Criminal Procedure.
Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub section (6) of section 145.
As already indicated the contradictory stands taken by the parties clearly show that there was no question of the dispute having ended so as to lead to cancellation of the order under sub section (5) of section 145 nor was such a case set up by any party before the Magistrate or before the High Court.
Further, it is well settled that under section 145 it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based.
In R. H. Bhutani vs Miss Mani J. Desai & Ors.(1), this Court pointed out as follows: "The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace.
But once he is satisfied on these two conditions the section requires him to pass a preliminary order under sub section
(1) and thereafter to make an enquiry under sub section
(4) and pass a final order under sub section
It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist.
The enquiry under section 145 is limited to the 95 question to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.
The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate." (Emphasisours) In Hari Ram & Ors.
vs Banwari Lal & Ors.(1) it was held that once a Magistrate finds that there is a breach of peace it is not necessary that the dispute should continue to exist at other stages of the proceedings also.
In this connection, the High Court observed as follows: "Of course, Magistrate can under sub section (1) of section 145, Criminal Procedure Code, assume jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc.
Once that is done the Magistrate is thereafter expected to call upon the parties concerned in such dispute to attend his court in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
The enquiry, therefore, after the initial satisfaction of the Magistrate and after the assumption of jurisdiction by him, has to be directed only as respects the fact of actual possession.
At that time he has not to record a finding again about the existence of a dispute likely to cause a breach of the peace." (Emphasisours) To the same effect is a decision of the Hyderabad High Court in Ramarao vs Shivram & Ors.(2) where Srinivasachari J. observed as follows: "As regards this contention I am of opinion that once the Magistrate has given a finding to the effect that there is apprehension of breach of peace and that he has jurisdiction to take proceedings under section 145, Cr.
P.C., he can continue the proceedings.
It is not necessary that at each stage he should be satisfied that there exists an imminent apprehension of breach of peace.
" (Emphasisours) 96 We find ourselves in complete agreement with the observations made by the Punjab and Hyderabad High Courts, extracted above, which lay down the correct law on the subject.
Assuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court.
It was therefore not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the civil court.
For these reasons therefore, we are satisfied that the order passed by the High Court is legally erroneous and cannot be allowed to stand.
The appeal is accordingly allowed.
The order of the High Court is set aside and the order of the Magistrate is confirmed.
V. D. K. Appeal allowed.
| IN-Abs | Allowing the appeal by special leave, the Court, ^ HELD: (1) A finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order.
Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub section (5) of section 145 of the Code of Criminal Procedure.
Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub section
(6) of section 145.
Further, it is well settled that under section 145 it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based.
[94C F] R. H. Bhutani vs Miss Mani J. Desai & Ors., ; , followed.
Hari Ram & Ors.
vs Banwari Lal & Ors., A.I.R. 1967 Punjab 378; Ramarao vs Shivram & Ors., A.I.R. 1954 Hyderabad p. 93, approved.
(2) Mere absence of a finding of the existence of breach of the peace by the Magistrate in the final order in the circumstances of the case cannot be such a manifest defect so as to attract the extraordinary jurisdiction of the High Court under Section 482 of the Criminal Procedure Code.
[94B] (3) At the worst the omission on the part of the Magistrate to mention in his final order that there was breach of the peace could be said to be an error of procedure clearly falling within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show, in the instant case, that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court.
[95B C]
|
Appeal No. 81 of 1954.
Appeal from the judgment and order dated the 10th March 1953 of the Bombay High Court in Income tax Reference No. 35 of 1952.
B. J. Kolah and I. N. Shroff for the appellant.
G. N. Joshi, Porus A. Mehta and R. H. Dhebar for the respondent.
May 10.
The following Judgments were delivered.
BHAGWATI J. Two questions were referred by the Income tax Appellate Tribunal to the High Court of Bombay under section 66(1) of the Indian Income tax Act.
(1) Whether there is any material to justify the assessment of Rs. 30,000 (Rupees thirty thousand) from out of the sum of Rs. 61,000 (Rupees sixtyone thousand) (for Income tax and Excess Profits Tax and Business Profits Tax purposes) representing the value of high denomination notes which were encashed on the eighteenth day of January one thousand nine hundred and forty six, and (2) Whether in any event by reason of the orders of the Revenue Authorities not having found *at the alleged item was from alleged undisclosed business profits the assessment of Rs. 30,000 (Rupees thirty thousand) is in law justified for Excess Profits Tax and Business Profits Tax purposes? The High Court answered the first question in the affirmative but refused to answer the second question, being of the opinion that even though it had asked the Tribunal to refer that question under section 66 (2) of the Act, it had no jurisdiction to do so inasmuch as the appellants had not asked the Tribunal to refer 629 the second question and, therefore, no question arose of the Tribunal refusing to raise that question or to submit it for the decision of the High Court.
The appellants area partnership firm doing business in Mill Stores at Ahmedabad.
Their head office is in Ahmedabad and their branch office is in Bombay.
The Governor General on 12th January 1946 promulgated the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 and High Denomination Bank Notes ceased to be legal tender on the expiry of 12th day of January 1946.
Pursuant to clause 6 of the Ordinance the appellants on 18th January 1946 encashed high denomination notes of Rs. 1,000 each of the face value of Rs. 6 1,000.
This was done in the calendar year 1946 being the account year corresponding with assessment year 1947 48.
During the assessment proceedings for the year 1947 48 the Income tax Officer called upon the appellant to prove from whom and when the said high denomination notes of Rs. 61,000 were received by the appellants and also the bona fides of the previous owners thereof.
After examining the entries in the books of account of the appellants and the position of the Cash Balances on various dates from 20th December 1945 to 18th January 1946 and the nature and extent of the receipts and payments during the relevant period, the Income tax Officer came to the conclusion that in order to sustain the contention of the appellants he would have to presume that there were 18 high denomination notes of Rs. 1,000 each in the Cash Balance on 1st January 1946 and that all cash receipts after 1st January 1946 and before 13th January 1946 were received in currency notes of Rs. 1,000 each, a presumption which he found impossible to make in the absence of any evidence.
He, therefore, added the sum of Rs. 61,000 to the assessable income of the appellants from undisclosed sources.
On appeal to the Appellate Assistant Commissioner the appellants produced before him affidavits of three persons to show that the appellants had received Rs. 20,000 in 1,000 rupees currency notes on 28th 630 December 1945, Rs. 15,000 in 1,000 rupees currency notes on 6th January 1946 and Rs. 8,500 in 1,000 rupees currency notes (making Rs. 8,000) on 8th January 1946, thus aggregating to Rs. 43,500 during the relevant period.
The Appellate, Assistant Commissioner did not accept the statements contained in the said affidavits and dismissed the appeal and confirmed the order of the Income tax Officer.
An appeal was taken by the appellants before the Income tax Appellate Tribunal.
The Tribunal after taking into consideration all the materials which bad been placed before the Appellate Assistant Commissioner, including the said affidavits, was of the opinion that if it was to accept the appellants ' contention, it would mean that practically every payment above Rs. 1,000 was received by the appellants in high denomination notes, which was almost impossible.
The Tribunal could not say that the appellants bad no high denomination notes with them.
It accepted the books of account of the appellants but thought that the cash balance on 18th January 1946 could not have sixtyone high denomination notes.
It came to the conclusion that the appellants appeared to have put in high denomination notes in the cash balance and taken the other notes away.
It accepted the appellants ' explanation only in regard to 31 notes and directed that the appellants ' assessment for the year under reference be reduced by that amount and dismissed the rest of the appeal.
The appellants applied to the Tribunal for stating a case and referring the first question of law to the High Court for its opinion under section 66(1) of the Act.
The Tribunal rejected the said application holding that no question of law arose from its order.
The appellants thereupon applied to the High Court under section 66(2) of the Act for an order directing the Tribunal to state a case and refer the questions set out in the application.
The High Court directed the Tribunal to state a case and refer the two questions of law set out hereinabove to it for its decision under section 66(2) of the Act.
In stating the case and referring the said questions of law to the High 631 Court, the Tribunal pointed out that the second question was not urged before the Tribunal at any stage and hence it was not dealt with by it in its original order.
The reference was heard by the High Court and the High Court answered the first referred question in the affirmative, but did not answer the second referred question.
The High Court held that there were materials before the Tribunal to hold that the sum of Rs. 30,000 represented the income of the appellants from undisclosed sources and that the finding of the Tribunal was a finding of fact based on materials before it and even if it was an inference drawn by the Tribunal, the inference was based on the facts and materials before the Tribunal.
The High Court observed that it was impossible to say that the inference drawn by the Tribunal from the circumstances was an unreasonable inference or an arbitrary and capricious inference or an inference which no judicial tribunal could ever draw.
It, therefore, answered the first referred question in the affirmative.
As regards the second referred question, the High Court held that question was not raised by the appellants in their application for reference under section 66(1) of the Act and, therefore, it bad no jurisdiction to ask the Tribunal to state a case on a particular question of law, where the appellants themselves had never asked the Tribunal to refer such a question to the High Court and that even though it had directed the Tribunal under section 66(2) to refer the said question, as it had no jurisdiction to ask the Tribunal to refer the said question, it was not open to it to answer the second question which had been raised by the Tribunal at its instance and refused to answer it.
On a petition made by the appellants for leave to appeal to this court, the High Court granted a certificate that this was a fit case for appeal to this court and hence this appeal.
It may be mentioned at the outset that the assessment of the appellants by the Income tax Officer was under section 23(3) and section 26 A of the Act.
The 632 books of account of the appellants were accepted by the Income tax Officer and the only scrutiny made by the Income tax Officer was whether at the relevant date, i.e. on 12th January 1946, the appellants had in their cash 61 notes of high denomination of Rs. 1,000 each.
The cash book entries from 20th December 1945 up to 18th January 1946 were put in before the Income tax Officer and they showed that on 28th December 1945 Rs. 20,000 were received from the Anand Textiles, and there was an opening balance of Rs. 18,395 on 2nd January 1946.
Rs. 15,000 were received by the appellants on 7th January 1946 from the Sushico Textiles and Rs. 8,500 were received by them on 8th January 1946 from Manihen, widow of Shah Maneklal Nihalchand.
Various other sums were also received by the appellants from 2nd January 1946 up to and inclusive of 1 1 th January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000 and were thus capable of having been paid to the appellants in high denomination notes of Rs. 1,000.
There was a cash balance of Rs. 69,891 2 6 with the appellants on 12th January 1946, when the High Denomination Bank Notes (Demonetisation) Ordinance 1946 was promulgated and it was the case of the appellants that they had then in their custody and possession 61 high denomination notes of Rs. 13000, which they encashed through the Eastern Bank, on 18th January 1946.
The appellants further sought to support their contention by procuring before the Appellate Assistant Commissioner the affidavits of Kuthpady Shyama Shetty, General Manager of Messrs Shree Anand Textiles, in regard to payment to the appellant is of a sum of Rs. 20,000 in Rs. 1,000 currency notes on 28th December 1945, Govindprasad Ramjivan Nivetia, proprietor of Messrs Shusiko Textiles, in regard to payment to the appellants of a sum of Rs. 15,000 in Rs. 1,000 currency notes on 6th January 1946 and Bai Maniben, widow of Shah Maneklal Nihalchand, in regard to payment to the appellants of a sum of Rs. 8,500 (Rs. 8,000 thereout being in Rs. 1,000 currency notes) on 8th January 1946.
The appellants were not in a position to give further 633 particulars of Rs. 1,000 currency notes received by them during the relevant period, as they were not in the habit of noting these particulars in their cash book and therefore relied upon the position as it could be spelt out of the entries in their cash book coupled with these affidavits in order to show that on 12th January 1946 they had in their cash balance of Rs. 69,891 2 6, the 61 high denomination currency notes of Rs. 1,000 each, which they encashed on 18th January 1946 through the Eastern Bank.
Both the Income tax Officer and the Appellate Assistant Commissioner discounted this suggestion of the appellants by holding that it was impossible that the appellants had on hand on 12th January 1946, the 61 high denomination currency notes of Rs. 1,000 each, included in their cash balance of Rs. 69,891 2 6.
The calculations.
, which they made involved taking into account all payments received by the appellants from and after 2nd January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000.
There was a cash balance of Rs. 18,395 6 6 on band on 2nd January 1946, which could have accounted for 18 such notes.
The appellants received thereafter as shown in their cash book several sums of monies aggregating to over Rs. 45,000 in multiples of Rs. 1,000 or sums over Rs. 1,000, which could account for 45 other notes of that high denomination, thus making up 63 currency notes of the high denomination of Rs. 1,000 and these 61 currency notes of Rs. 1,000 each, which the appellants encashed on 18th January 1946 could as well have been in their custody on 12th January 1946.
This was, however, considered impossible by both the Income tax Officer and the Appellate Assistant Commissioner as they could not consider it within the bounds of possibility that each and every .payment received by the appellants after 2nd January 1946 in multiples of Rs. 1,000 or over Rs. 1,000 was received by the appellants in high denomination notes of Rs. 1,000 each. ' It was by reason of their visualisation of such an impossibility that they negatived the appellants ' contention.
It has to be noted, however, that beyond there 82 634 calculations of figures, no further scrutiny was made by the Income tax Officer or the Appellate Assistant Commissioner of the entries in the cash book of the appellants.
The cash book of the appellants was raccepted and the entries therein were not challenged.
No further documents or vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party.
The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Incometax Officer, who was present at the hearing of the appeal before the Appellate Assistant Commissioner, considered it necessary to call for them in order to cross examine them with reference to the statements made by them in their a affidavits.
Under these circumstances it was not open to the Revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits.
This being the position, the state of affairs, as it ob tained on 12th January 1946, had got to be appreciated, having, regard to those entries in the cash books and the affidavits filed before the Appellate Assistant Commissioner, taking them at their face value.
The entries in the cash books disclosed that, taking the number of high denomination notes at 18 on 2nd January 1946, there came in the custody or possession of the appellants after 2nd January 1946 and up to 12th January 1946, 49 further notes of that high denomination, making 67 such notes in the aggregate, out of which 61 such notes could be encashed by the appellants on 18th January 1946 through the Eastern Bank.
A mere calculation of the nature indulged in by the Income tax Officer or the Appellate Assistant Commissioner was not enough, without any further scrutiny, to dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put in by the appellants before the Appellate Assistant Commissioner.
The Tribunal also fell into the same error.
It could 635 not negative the possibility of the appellant being in possession of a substantial number of these high deno mination currency notes.
It, however, considered that it was impossible for the appellants to have bad 61 such notes in the cash balance in their hands on 12th January 1946 and then it applied a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibility, excluding 30 such notes as not covered by the explanation of the appellants.
This was pure surmise and had no basis in the evidence, which was on the record of the proceedings.
The High Court treated this finding of the Tribunal as a mere finding of fact.
The position in regard to all such findings of fact, as to whether they can be questioned in appeal, is thus laid down by the House of Lords in Cameron vs Prendergast (Inspector of Taxes) (1): "Inferences from facts stated by the Commissioners are matters of law and can be questioned on appeal.
The same remark is true as to the construction of documents.
If the Commissioners state the evidence and hold upon that evidence that certain results follow, it is open to the Court to differ from such a holding".
To the same effect are the observations of the House of Lords in Bomford vs Osborne (H. M. Inspector of Taxes) (2): "No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusions which are themselves conclusions of pure fact.
But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners ' conclusions".
The latest pronouncement of the House of Lords on this question is to be found in Edwards (Inspector of Taxes) vs Bairstow and Another(3).
Viscount Simonds observed at page 586: "For it is universally conceded that, though it is (1) [1940]8I.T.R.(Suppl.)75,81.
(2) [1942] 10 I.T.R. (Suppl.) 27, 34.
(3) 636 a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained".
and Lord Radcliffe expressed himself as under at page 592: "If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously erroneous in point of law.
But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.
In those circumstances, too, the court must intervene".
It follows, therefore, that facts proved or admitted may provide evidence to support further conclusions to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law.
The court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.
The High Court recognised this position in effect but went wrong in applying the true principles of interference with such findings of fact to the present case.
The attempt which was made by the High Court to probe into the mind of the Tribunal by trying to discard the affidavit of Govindprasad Ramjivan Nivetia in regard to the payment of Rs. 15,000 to the appellants in 15 currency notes of Rs. 1,000 each on 6th January 1946 and thus reducing the aggre gate sum of Rs. 43,500 to Rs. 28,500 and justifying the figure of Rs. 31,000 arrived at by the Tribunal was really far fetched and contrary to the terms of 637 the tribunal ' s order itself,the Tribunal not having given any inkling, whatever, of what was at the back of its mind when it fixed upon the figure Rs. 31,000.
Really speaking the Tribunal had not indicated upon what material it held that Rs. 30,000 should be treated as secret profit or profits from undisclosed sources and the order passed by it was bad.
The appellants had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs. 61,000 and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs. 30,000.
The case was analogous to the one before the Patna High Court in Chunilal Ticamchand Coal Co. Ltd. vs Commissioner of Income tax, Bihar and Orissa(1) and should have been similarly decided in favour of the appellants.
For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative.
It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income tax and Excess Profits Tax and Business Profit Tax purposes representing the value of the high denomination notes which were encashed on 18th January 1946.
In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also.
The answer to the first referred question being in the ' negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical.
The result, therefore, is that the appeal is allowed and the first referred question is answered in the negative.
The appellants will have their costs here as well as in the High Court.
VIMNKATARAMA AYYAR J.
I agree to the order just proposed; but I prefer to rest my decision on the (1) 638 ground that the finding of the Tribunal that high denomination notes of the value of Rs. 30,000 represented the concealed* profits of the appellant is not supported by any evidence, and is, in consequence, erroneous in point of law and liable to be set aside.
The evidence on record has been exhaustively reviewed in the judgment just delivered, and there is no need to traverse the same ground again.
To put the matter in anut shell, the accounts of the appellant have been accepted by the Tribunal as genuine, and it is impossible to say, having regard to the cash balance as shown therein, that the notes in question could not have been included therein.
The Tribunal observes that it is unlikely that so many high denomination notes would have been held as part of the cash on hand for such a large number of days.
That, no doubt, is highly suspicious; but the decision of the Tribunal must rest not on suspicion but on legal testimony.
For the respondent, Mr. Joshi con.
tended that the cash balance shown in the books could not be accepted as true, because the appellant had ample time to rewrite the accounts, as the Ordinance was issued on 12th January 1946 and the year of account of the assessee was the Calendar year.
Whether the accounts are genuine or not is a pure question of fact, and a finding on a question of fact is as much binding on the Revenue as on the subject.
| IN-Abs | The appellants, a partnership firm assessed under sections 23(3) and 26 A of the Income tax Act, were called upon by the Income tax Officer during the assessment year 1947 48 to explain how and when they came to possess 61 thonsand rupee currency notes which they had encashed on the 18th January, 1946, after the promulgation of the High Denomination Bank Notes (Demonetisation) Ordinance of 1946, under which such notes ceased to be legal tender on the expiry of the 12th of January, 1946.
The assessees produced their cash book entries from the 20th December, 1946, to the 18th January, 1946, which were accepted as correct by the Income tax Officer, who, however, made no further scrutiny of the accounts, and,the entries showed that on the 12th of January, 1946, the cash balance in hand was Rs. 69,891 2 6.
The case of the appellants was that the said notes were a part of the cash balance and in further support of their case they filed before the Appellate Assistant Commissioner three affidavits by persons actually making the payments, in respect of certain entries in the cash book to prove that Rs. 20,000 on the 28th December, 1946, Rs. 15,000 on the 6th of January, 1946, and Rs. 8,000, out of a sum of Rs. 8,500, on the 6th of January, 1946, were paid in thousand rupee notes.
The Income tax Officer and the Appellate Assistant Commissioner in appeal, on a calculation of their own, held that the possession by the appellants of so many thousand rupee notes was an impossibility and that these notes must represent income from, undisclosed sources and as such be added to the assessable income of the appellants.
Neither the Appellate Assistant Commissioner nor the Income tax Officer, who was present at the hearing of the appeal, called for the deponents in order to cross examine them with reference to their statement in the affidavits.
The Appellate, Tribunal on appeal accepted the explanation of the assesses in respect of 31 of the notes but not with regard to the rest and rejected their application for a reference of the matter to the High Court.
The assessees moved the High Court and the Tribunal was directed under section 66(2) to state 627 a case for its decision.
In answering the main question, the High Court was of the opinion that the finding of the Tribunal was a finding of fact or an inference based on such finding and it was not possible to say that such finding or inference was unreasonable or arbitrary.
Held (per curiam), that the High Court was in error in refusing to interfere with the finding of the Tribunal which was based on no evidence and the appeal must succeed.
Per C.J. and BHAGWATI J. Conclusions based on facts proved or admitted may be conclusions of fact but whether a particular inference can legitimately be drawn from such conclusions may be a question of law.
Where, however, the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the court is entitled to interfere.
Chunilal Ticamchand Coal Co. Ltd. vs Commissioner of Income tax, Bihar and Orissa, ([1955]) , applied.
Cameron vs Prendergast (Inspector of Taxes), ([1940] 8 I.T.R. (Suppl.) 75), Bomford vs Osborne (H. M. Inspector of Taxes), ([1942] 10 I.T.R. (Suppl.) 27) and Edwards (Inspector of Taxes) vs Bairstow and Another, ([1955] , referred to.
The High Court was in error in treating the finding of the Tribunal as a finding of fact and failed to apply the true principles of interference applicable to such cases.
The entries in cash book and the statements made in the affidavits in support of the explanation.
which were binding on the Revenue and could not be questioned, clearly showed that it was quite within the range of possibility that the appellants had in their possession the 61 high denomination notes on the relevant date and their explanation could not be assailed by a purely imaginary calculation of the nature made by the Income tax Officer or the Appellate Assistant Commissioner.
The Tribunal made a wrong approach and while accepting the appelants ' explanation with regard to 31 of the notes, it had absolutely no reason to exclude the rest as not covered by it in absence of any evidence to show that the excluded notes were profits earned by the appellants from undisclosed sources.
The appellants having given a reasonable explanation the Tribunal could not, by applying a rule of thumb, discard it so far as the rest were concerned and act on mere surmise.
Per VENKATARAMA AYYAR J.
The finding of the Tribunal that high denomination notes of the value Rs. 30,000 represented concealed profits of the appellants being unsupported by any evidence amounted to an error of law and was liable to be set aside.
That so many notes of high denomination should have been held as part of 628 the cash for so long a time, might be highly suspicious but decisions must be founded on legal testimony and not on suspicion.
The question whether the accounts were genuine or not was a pure question of fact and a finding that they were genuine was binding both on the Revenue and the subject.
|
Civil Appeal No. 691 of 1970.
Appeal by Special Leave from the Judgment and Order dated 12 8 1969 of the Mysore High Court in Civil Revision Petition No. 1322 of 1967.
section section Javali, M. Veerappa and J. R. Das for the Appellant.
section C. Javali, P. G. Gokhale and B. R. Agarwala for the Respondents.
The Judgment of the Court was delivered by GUPTA J.
The only question that arises for decision in this appeal by special leave is whether the respondents before us are entitled to relief under section 25(ii) of the Bombay Agricultural Debtors Relief Act, 1947.
The question arises on the following facts.
On June 1, 1927 the predecessors in interest of the appellants transferred to one Krishnaji two plots of land bearing survey numbers 125/1 and 136 measuring respectively 14.5 and 21.31 acres in village Murnal, Bagalkot Taluk in Bijapur District.
The document by which the transfer was effected, described as a sale deed, shows that the two items of property were sold "absolutely" for a total sum of Rs. 2000/ .
In 1932 Krishnaji sold the plot bearing survey No. 136 to one Ramanna, predecessor in interest of respondent Nos. 2(a) to 2(e).
for Rs. 400/ .
In 1935, Krishnaji sold the other plot, survey No. 125/1, for Rs. 1000/ to Utalsab Dogrisab.
Walikar, predecessor in interest of respondents 1(a) to 1(c).
After the Bombay Agricultural Debtors Relief Act, 1947 came into force, the appellants applied under section 4 of the Act for adjustment of debts claiming that the transaction in 1927 was really not a sale but a mortgage.
The trial court held that the transaction was a mortgage and not a sale but dismissed the application on the view that the respondents were entitled to protection under section 25(ii) of the Act.
The District Judge reversed the decision and allowed the application under section 4.
The matter was taken to the High Court in revision and the High Court recorded a consent order that the tran 125 saction was not a sale but a mortgage and remitted the case to the trial court for a decision on the question whether the purchasers, Ramanna and Walikar, were transferees for value without notice of the real nature of the transaction between the appellants ' predecessors and Krishnaji and as such entitled to the protection of section 25(ii).
This order of the High Court was made on January 25, 1963.
At this stage we may mention that our attention was drawn to an order made in the same matter by the High Court on January 31, 1962, which is reported in , that shows that the same learned Judge had set aside the order of the appellate court and restored that of the trial court.
Counsel for both sides appeared to think that the order made by the High Court in 1962 must have been set aside later on review though neither of them was able to produce the order by which the 1962 order had been set aside.
However both learned counsel agreed that for the purpose of this appeal it is the order of the High Court made on January 25, 1963 that need be considered.
That the 1963 order held the field would be apparent from the fact that the case was reconsidered by the trial court as directed by the aforesaid order.
The trial court on hearing the matter after remand dismissed the application under section 4 on the finding that the purchasers were bona fide transferees for value without notice of the real nature of the original transaction.
The lower appellate court reversed this decision.
The purchasers then moved the High Court in revision from the order passed by the appellate court.
The High Court by the impugned order set aside the order of the appellate court and restored that of the trial court agreeing with the trial court that the purchasers had no notice of the real nature of the transaction of 1927.
Section 24 of the Bombay Agricultural Debtors Relief Act, 1947 empowers the court to declare any transfer of land by a person whose debts are being adjusted under this Act purporting to be a sale, to be a mortgage if the court was satisfied that the circumstances connected with the transfer showed it to be in the nature of a mortgage.
Section 25(ii) provides that nothing in section 24 shall apply to "any bona fide transferee for value without notice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before the 15th day of February, 1939".
The document evidencing the transfer of the plots to Krishnaji in 1927 is discribed as a "sale deed" and contains a statement that the vendors "have absolutely sold both the said lands to Krishnaji" and that the "entire ownership" was Krishnaji 's "alone".
It is also said that possession of the lands has also been given to Krishnaji.
The High Court found that the purchasers from Krishnaji had no "actual knowledge or notice" of the real nature of the transaction in 1927.
But the High Court also held that the notice contemplated in section 126 25(ii) was "actual notice" and that "constructive notice was clearly beyond the contemplation of section 25(ii)".
It seems to us that construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay.
We are of the view that section 25(ii) does not exclude constructive notice.
However on the facts of the case it appears that the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927.
It has been found that they had no actual notice; the High Court appears to have also found that they had no constructive notice.
Referring to the provision of section 25(ii) requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Court says: "It will be seen that the reference is to a period anterior to the coming into force of the Act, a period therefore during which the special provisions of the Act could not have been within the contemplation of anybody.
If those provisions were not in contemplation it is impossible to postulate a situation where any given circumstance could be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue further enquiries." Mr. section section Javali appearing for the appellants contends that the fact that the lands in question were transferred for a smaller amount in 1932 and 1935 than the price Krishnaji had paid for them in 1927 was a circumstance that should have put the transferees on enquiry and that if reasonable enquiries had been made they would have had knowledge of the real nature of the transaction of 1927.
The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the transaction of 1927 was really a mortgage.
As pointed out by the High Court, the Act of 1947 could not have been within the contemplation of anyone in 1932 or 1935.
Ramappa in his deposition said that he paid Rs.400/ for the land as it was "fallow", and that if there were no weeds the price would have been Rs. 600/ .
As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial court.
The record of rights also does not contain 127 any indication that the transaction of 1927 was in the nature of a mortgage.
The evidence discloses that Krishnappa put the transferees in possession of the lands in question.
There was therefore, no such occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors in interest of the appellants in 1927.
The appeal is dismissed but in the circumstances of the case without any order as to costs.
N.K.A. Appeal dismissed.
| IN-Abs | Section 25(ii) of the Bombay Agricultural Debtors ' Relief Act, 1947 provides that nothing in section 24 shall apply to any bona fide transferee for value without notice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before 15th February, 1939.
The predecessors in interest of the appellants transferred two plots of land in 1927 to one Krishnaji.
The document evidencing the transfer of the plots was described as a sale deed and contained a statement that the vendors had absolutely sold both the said lands to him, that the entire ownership was his "alone" and that possession had been given to him.
In 1932 and 1935 Krishnaji sold the two plots to the predecessors in interest of the respondents at a price lower than that paid by him when he purchased the plots.
After the coming into force of the 1947 Act the appellants applied under section 4 of the Act for adjustment of debts claiming that the transaction of 1927 was really not a sale but a mortgage.
Although the trial court came to the conclusion that the transaction was mortgage and not a sale it dismissed the application on the ground that the respondents were entitled to protection under section 25(ii) of the Act.
On appeal the District Judge allowed the application under section 4.
In revision, the High Court recorded a consent order that the transaction was not a sale but a mortgage and remitted the case to the trial court for a decision whether the purchasers were transferees for value without notice of the real nature of the transaction and were entitled to protection of section 25(ii).
On remand the trial court dismissed the application under section 4 holding that the purchasers were bona fide transferees for value without notice of the real nature of the original transaction.
The lower appellate court reversed this decision.
The High Court set aside the order of the appellate court and restored that of the trial court on the view that the purchasers had no actual knowledge or notice of the real nature of the transaction of 1927.
It also held that the notice contemplated by section 25(ii) was actual notice and that constructive notice was clearly beyond the contemplation of section 25(ii).
Dismissing the appeal, ^ HELD: Construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay.
Section 25(ii) does not exclude constructive notice.
[126A B] 124 In the instant case, however, the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927.
[126B] The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the transaction was really a mortgage.
The Act of 1947 could not have been within the contemplation of any one in 1932 or 1935 when the lands were sold.
The lands were fallow and barren.
The record of rights does not contain any indication that the transaction was a mortgage.
The transferees were put in possession of the lands.
Therefore there was no occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between the seller and the predecessors in interest of the appellants in 1927.
[126F H, 127A B]
|
Civil Appeal No. 140 of 1979.
Appeal by Special Leave from the Judgment and Order dated 8 12 1978 of the Kerala High Court in C.R.P. No. 3450/78.
P. Govindan Nair, Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Mrs. Baby Krishnan for the Appellant T. section Krishnamurthy Iyer, A. section Nambiyar, and P. Parmeswaran for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent landlord filed a petition for eviction of the appellant tenant from the premises in dispute under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, on the ground that the appellant had sub let the premises without the consent of the landlord.
The petition had a chequered career but finally the Rent Controller ordered eviction by his order dated July 31, 1974.
The order of the Rent Controller was confirmed, successively by the Subordinate Judge, the District Judge and, the High Court.
The tenant has now preferred this appeal by special leave of this Court under Art, 136 of the Constitution.
Shri Govindan Nair learned counsel for the appellant submitted that under section 108(j) of the , it was a term of every lease that the lessee might sub lease the whole or any part of his interest in the property and, therefore, unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises, the landlord could not have recourse to section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act.
In order to appreciate the submission of Shri Govindan Nair, we may set out the relevant statutory provisions.
section 108(j) of the , is as follows: "108.
In the absence of a contract or local usage to the contrary, the lessor and the lessee of the immovable property, as against one another, respectively, possess the rights and are 141 subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased : (A) Rights and liabilities of the lessor (a) X X X X X X X X X (b) X X X X X X X X X (c) X X X X X X X X X (B) Rights and liabilities of the lessee (d) X X X X X X X X X (e) X X X X X X X X X (f) X X X X X X X X X (g) X X X X X X X X X (h) X X X X X X X X X (i) X X X X X X X X X (j) the lessee may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it.
The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; X X X X X X X X X section 11 of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, to the extent that it is relevant is as follows: "11(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that . . .
Provided further that . . (2) X X X X X X X X X (3) X X X X X X X X X (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building: (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub lets the entire building or any portion thereof if the lease does not confer on him any right to do so".
The submission of Shri Govindan Nair was that if the lease did not expressly prohibit sub letting, the provision in section 108(j) of the which enabled a lessee to sub lease the whole or any part of his interest in the property had necessarily to 142 be read into every lease as one of its terms, and so read, it followed that the lease conferred on the tenant the right to sub let "the entire building or any portion thereof" so as to disentitle the landlord from seeking eviction of the tenant under section 11(4)(i) of the Kerala Act.
We are unable to agree with this submission.
Read plainly and without gloss, section 11(4)(i), simply and clearly, means that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord.
What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant.
If the clause "if the lease does not confer on him any right to do so" was not there in section 11(4)(i) the position would be unarguable that section 108(j) would offer no protection.
That much was also conceded by Shri Govindan Nair.
In our opinion, the addition of the clause did not improve matters for the tenant.
It only clarified matters to this extent that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently, but it had to be conferred: it could not be claimed unilaterally by the tenant.
To interpret section 11(4)(i) in the manner suggested by Shri Govindan Nair would be to rewrite the provision as follows: "if the tenant. . . . . , without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof, though prohibited by lease from doing so".
That, we are not called upon to do.
A little thought over the reason for section 11 (4)(i) will also throw some light.
Quite obviously, the legislature thought that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others besides himself, unless the landlord by his act agreed to such a course.
Where the landlord had himself agreed that the tenant could sublet, the question would not arise.
Therefore, section 11 (4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord.
In V. Dhanapal Chettiar vs Yesodai Ammal(1) a Bench of seven judges of this Court had to consider the question whether notice under section 106 of the determining the lease was necessary before a landlord could move Rent Controller or other appropriate authority for the eviction of the tenant under the various State Rent Acts.
The Court held that it was not necessary and Untwalia, J., speaking for the Court, said: 143 "Section 108 deals with the rights and liabilities of lessors and lessees.
Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly.
The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution.
The subject being in the concurrent list, many State Rent Acts have by necessary implication and many of them by starting certain provisions with a non obstante clause have done away with the law engrafted in section 108 of the except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication".
Later, he said: "But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given.
Or, it may be that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice.
But that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requirements of section 106 of the ".
It is clear from what has been said that not all the rights conferred on landlord and tenant by section 108 and other provisions of the have been left in tact by the various State Rent Acts and that if a State Rent Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the .
Section 108(j) of the stands displaced by section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act and is no defence to an action for eviction based on section 11(4)(i).
We are satisfied that the appeal is without merit and is accordingly dismissed with costs.
P.B.R. Appeal dismissed.
| IN-Abs | On the ground that the tenant had sublet the premises without his consent the landlord sought the tenant 's eviction from the premises under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
The Rent Controller ordered eviction and this order was affirmed by the Subordinate Judge, District Judge and the High Court.
Before this Court it was contended on behalf of the tenant that under section 108(j) of the , it was a term of every lease that the lessee might sublease the whole or any part of his interest in the property and, therefore, unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises, the landlord could not have recourse to section 11(4)(i) of the Act.
Dismissing the appeal, ^ HELD: What section 11(4)(i) of the Act provides is that sub letting shall be a ground for eviction but not if it was by agreement of the landlord.
[142G] 1(a) What section 11(4)(i) means is that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord.
If the clause "if the lease does not confer on him any right to do so" was not there the position would be unarguable that section 108(j) of the would offer no protection.
But the addition of the clause only clarified that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently but it had to be conferred; it could not be claimed unilaterally by the tenant.
[142B D] (b) Quite obviously the legislature thought that the tenant, whose tenancy was well secured and protected by the rights conferred by the Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others beside himself unless the landlord by his act agreed to such a course.
[142F] 2.
It is well settled law that not all the rights conferred on the landlord and tenant by section 108 and other provisions of the have been left intact by the various State Rent Acts and that if a State Rent 140 Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the .
Section 108(j) stands displaced by section 11(4)(i) of the Act and is no defence to an action for eviction based on this section.
[143G] V. Dhanapal Chettiar vs Yesodai Ammal. ; @ 1747= ; referred to.
|
kes it clear that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and not by the Mithila School.
Further, the material on record is not sufficient to lead to the conclusion that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School.
Throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra.
In fact Raja Dhrub Singh as found by the High Court, had not appointed his daughter as a putrika to beget a putrika putra for him.
It follows that the appellants who claim the estate on the above basis cannot succeed.
[62F G, 63F] The applicability of the above rule to Nambuderies of Kerala is however not decided.
[62G H] 4 & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
114 119 of 1976.
From the Judgment and Decree dated 15 12 1972 of the Patna High Court in F.A. Nos. 130, 85, 86, 87, 131, and 134 of 1966.
D. V. Patel, section section Johar and section N. Mishra for the Appellants in CA Nos.
114 119 of 1976.
V. M. Tarkunde, U. R. Lalit, K. K. Jain, D. Goburdhan and P. P. Singh for Respondents 5 22 in CA Nos.
114 115/76.
L. M. Singhvi (Dr.), U. P. Singh and section section Jha for the Respondents in CA 114 119/76.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The above six appeals by certificate and Civil Appeals Nos. 494 496 of 1975 arise out of a common judgment dated December 15, 1972 of the High Court of Judicature at Patna passed in First Appeals Nos. 85 to 87, 130, 131 and 134 of 1966.
After the above six appeals and Civil Appeals Nos. 494 496 of 1975 were heard together for sometime, we found that the above six appeals i.e. Civil Appeals Nos. 114 119 of 1976 could be disposed of by a separate judgment.
We, therefore, proceeded with the consent of the learned counsel for the parties to hear fully Civil Appeals Nos. 114 119 of 1976.
By this common judgment, we propose to dispose of the above six appeals.
The further hearing of Civil Appeals Nos. 494 496 of 1975 is deferred.
The question which arises for our consideration in the above Civil Appeals Nos.
114 119 of 1976 is whether the appellants and others either claiming under the appellants or alongwith them are entitled to an estate popularly known as 'Bettiah Raj ' which was under the management of the Court of Wards, Bihar.
The last male holder of the said estate, Maharaja Harendra Kishore Singh Bahadur died issueless on March 26, 1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer.
Maharani Sheo Ratna Kuer who succeeded to the estate of Maharaja Harendra Kishore Singh on his death as his senior widow died on March 24, 1896 and on her death Maharani Janki Kuer became entitled to the possession of the estate.
Since it was found that Maharani Janki Kuer was not able to administer the estate, its management was taken over by the Court of Wards, Bihar in the year 1897.
Maharani Janki Kuer who was a limited holder of the estate died on November 27, 1954.
On her death, disputes arose amongst several persons who were parties to the suits 5 out of which the above appeals arise regarding the title to the 'Bettiah Raj ' estate.
The State of Bihar, however, claimed that none of the claimants was the heir of the last male holder and that since there was no heir at law as such at the time when the limited estate of Maharani Janki Kuer came to an end on her death, the entire estate alongwith the net income which the Court of Wards had realized from it became the property of the State of Bihar by virtue of the rule of escheat.
We shall refer to the respective submissions of the parties at a later stage.
It is not disputed that Raja Ugra Sen, the founder of the 'Bettiah Raj ' was governed by the Benares School of Mitakshara law as his family had migrated from the South Western part of the present State of Uttar Pradesh to the State of Bihar although in the course of the pleadings, there is a suggestion that the family was also being governed by the Mithila School of Mitakshara which was in force in the State of Bihar.
The question for decision in the instant case may no doubt ultimately appear to be a simple one but in order to determine the said question, it is necessary to relate the facts which spread over nearly three centuries and refer to a number of Smritis, commentaries and decisions.
The major part of the estate of 'Bettiah Raj ' is situated in Champaran District of the State of Bihar.
Some of its properties are situated in the State of Uttar Pradesh also.
The principality known as 'Bettiah Raj ' was established by Raja Ugrasen in or about the middle of the 17th century.
It was then known as Reasut of Sirkar Champaran consisting of four pergunnahs known as Majhwa, Simrown, Babra and Maihsi.
It was an impartible estate.
Raja Ugrasen was succeeded by his son, Raja Guz Singh in the year 1659.
Raja Dalip Singh, son of Raja Guz Singh came to the gaddi in the year 1694 and he was succeeded by his son, Raja Dhrub Singh in the year 1715.
Raja Dhrub Singh died in 1762 without a male issue but leaving a daughter by name Benga Babui, who had married one Raghunath Singh, a Bhumihar Brahmin of Gautam gotra.
It is said that he had another daughter also, but it is not necessary to investigate into that fact in these cases.
On the death of Raja Dhrub Singh who was a Jethoria Brahmin of the Kashyap gotra, his daughter 's son (Benga Babui 's son), Raja Jugal Kishore Singh entered into possession of the estate of 'Bettiah Raj ' and was in possession thereof at the date when the East India Company assumed the Government of the province.
On the assumption of the Government of Bengal by the East India Company, Raja Jugal Kishore Singh offered some resistance to their 6 authority and the Company 's troops were despatched to enforce his submission.
Raja Jugal Kishore Singh fled into the neighbouring State of Bundelkhand and his estates were seized and placed under the management of the Company 's officers.
During the absence of Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who were respectively sons of Prithi Singh and Satrajit Singh, younger brothers of Raja Dalip Singh, found favour with the East India Company.
After some negotiations, the Government decided to allot the zamindari of Majhwa and Simrown pergunnahs which formed part of 'Bettiah Raj ' estate to Raja Jugal Kishore Singh and to leave Babra and Maihsi in possession of Srikishen and Abdhoot Singh.
On his return, Raja Jugal Kishore Singh accepted the decision of the East India Company which was formally announced on July 24, 1771 in the following terms: "The Committee of Revenue having approved of the reinstatement of Raja Jugal Kishore, we have now granted to him the zamindari of Majhwa and Simrown pergunnahs, and have settled his revenue as follows. " Accordingly, Raja Jugal Kishore Singh executed a kabulyat in accordance with the terms imposed by the Government under the grant and got into possession of pergunnahs Majhwa and Simrown.
He was again dispossessed in the following year as he failed to pay the Government revenue.
Srikishen and Abdhoot refused to execute a kabulyat for the two other pergunnahs alone and they were also dispossessed.
The entire Sirkar thus passed into the possession of the Government and was held by farmers of revenue on temporary settlements until the year 1791.
Raja Jugal Kishore Singh received an allowance for main tenance from the Government and died in or about the year 1783 leaving a son, Bir Kishore Singh.
Thereafter on October 10, 1789, Mr. Montgomerie, the then Collector, initiated fresh proceedings regarding the settlement of Sirkar Champarun, the estate in question, and on September 22, 1790, the Governor General in Council (Lord Cornwallis) addressed the following letter to the Board of Revenue: "It appearing from our proceedings that the late Raja Jugal Kishore was driven out of the country for acts of rebellion, and upon his being allowed to return into the company 's dominions, that the late President and Council thought proper to divide the zamindari of Champarun, allotting to Jugal Kishore the districts of Majhwa and Simrown, and to Srikishen Singh and Abdhoot Singh those of Maihsi and Babra, we direct that the heirs of the late Raja Jugal Kishore and Srikishen Singh and Abdhoot Singh be respectively restored to the possession and management of the 7 above districts (with the exception of such parts thereof as may belong to other zamindars or taluqdars, being the proprietors of the soil, who are to pay their revenues immediately to the Collector of the district), and that the decennial settlement be concluded with them agreeably to the General Regulations.
" All the parties were dissatisfied with the above decision.
Bir Kishore Singh who claimed to be entitled to the entire Sirkar Champarun, however, in obedience to the orders of the Governor General took possession of the two pergunnahs Majhwa and Simrown allotted to him and gave in his agreements for the settlement of them and at the same time prayed that he might be put into possession of the other two pergunnahs also.
Srikishen and Abdhoot also claimed the entire estate on the ground that Raja Jugal Kishore Singh was not a member of the family and had no title to the estate as "by the Hindu Shastra the female branch is not entitled to a share of the estate, much less the whole.
" They accordingly at first refused to give in their kabulyats for the pergunnahs Maihsi and Babra; but on Mr. Montgomerie 's advice they ultimately did so under protest and were placed in possession of those two pergunnahs.
Separate dowl settlements of Government revenue on the mahals in pergunnahs Majhwa and Simrown and on those in pergunnahs Maihsi and Babra were made with and accepted by Bir Kishore Singh and by Srikishen and Abdhut respectively.
The Sirkar Champarun was thus divided de facto into distinct zamindaris to be held by the grantees at revenues allotted to each of them separately.
Then started the first phase of judicial proceedings which even now continue to be devil the estate which Raja Bir Kishore Singh acquired pursuant to the orders of Governor General in Council.
On the 6th day of May, 1808, Ganga Prasad Singh, the eldest son of Raja Srikishen Singh, who had died by then, instituted a suit in the Zila Court of Saran claiming upon a plea of title by inheritance to recover from Raja Bir Kishore Singh possession of pergunnahs Majhwa and Simrown and certain salt mahals all of which were formerly part of Sirkar Champarun on the following allegations; that in the year 1762 upon due consideration of right to succession as established in the family, Raja Dhrub Singh had made over while he was still alive the rajgy of the Sirkar of Champarun to his father, Raja Srikishen Singh, son of Prithi Singh and at the same time executed in his favour a deed of conveyance of the rajgy and the milkeut of the estate comprising the whole of the Sirkar aforesaid and gave him entry into the zamindari.
He further alleged that when in the year 1763 the British Government was established, the lands comprised in the said Sirkar were attached but that Raja Srikishen Singh continued to receive the malikana and other rights annexed to 8 the zamindari upto 1770 and that in the following year, the settlement of the whole Sirkar was made with him and from the year 1772 to 1790 although the business of the Sirkar was conducted by the Amins and Mootahdars appointed for the purpose and Commissioner appointed temporarily for the collection of the revenue and at other times, his father, Raja Srikishen received the malikana.
He then proceeded to state the manner in which, upon the formation of the decennial settlement in 1790, Raja Srikishen was deprived of the possession of the pergunnahs which he claimed to recover and alleged certain fraudulent practices whereby possession had been obtained by Raja Bir Kishore Singh.
The suit was transferred from the Zillah Court of Saran to the Provincial Court of Patna.
The suit was contested by Raja Bir Kishore Singh.
In the course of the written statement, his counsel inter alia pleaded: "The whole of the above statement of plaintiff is both false and fraudulent for the real fact is that the Majhwa, Simrown, Maihsi and Babra pergunnahs forming the Champarun Sirkar were the rajgy, the zamindary, and the milkeut of Raja Dhrub Singh, an ancestor of my client and the said Raja held the sole possession of them without foreign interference or participation.
It is necessary to state that he had no son born to him; but Raja Jugal Kishore Singh, the father of my client was his grandson and the issue of a daughter he had by his senior Rani, Raja Dhrub Singh aforesaid having adopted Raja Jugal Kishore Singh, the father of my client, at the time of his birth, conducted the ceremonies of his adoption and marriage in the usual manner, and having after wards given him the tilak he established him upon the rajgy of the whole of the Champarun Sirkar".
The Provincial Court dismissed the suit by its judgment dated December 29, 1812 solely on the ground of limitation whereupon Raja Dindayal Singh (the legal representative of the original plaintiff, Raja Ganga Prasad Singh, who died in the meanwhile) filed an appeal before the Sadar Diwani Adalat during the pendency of which Raja Bir Kishore Singh died (in 1816) and was succeeded by his elder son, Raja Anand Kishore Singh.
The appeal was dismissed on July 9, 1817.
In its elaborate judgment, the Sadar Diwani Adalat rejected the case of the plaintiff in that suit relating to the conveyance of the rajgy by Raja Dhrub Singh in favour of Raja Srikishen Singh holding that the document relied upon was a forgery.
The above decision of the Sadar Diwani Adalat was affirmed by the Judicial Committee of the Privy Council in Rajah Dundial Singh & Ors.
vs Rajah Anand 9 Kishore Singh(1) by its judgment dated December 5 and 7, 1837.
The Judicial Committee affirmed the judgment of the courts below on the sole ground of limitation.
Raja Anand Kishore Singh continued on the Gaddi and in 1837, the hereditary title of Maharaja Bahadur was conferred upon him.
Upon his death in 1838, without any issue, he was succeeded by his younger brother, Maharaja Bahadur Nawal Kishore Singh.
Maharaja Bahadur Nawal Kishore Singh had two sons, Rajendra Kishore Singh and Mahendra Kishore Singh and upon his death in the year 1855, Maharaja Bahadur Rajendra Kishore Singh succeeded to the estate.
Maharaja Bahadur Rajendra Kishore Singh died in 1883 and his brother Mahendra Kishore Singh having pre deceased him, he was succeeded by Maharaja Bahadur Harendra Kishore Singh who as stated earlier was the last male holder of the estate and died issueless on March 26, 1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer.
So great was the esteem in which Maharaja Harendra Kishore Singh was held by the Government that the Lt. Governor of Bengal came to Bettiah personally to offer his condolence.
The occasion was used by Raja Deoki Nandan Singh (one of the great grandsons of Raja Srikishen Singh) to put forward his claim to the Bettiah Raj.
On April 11, 1893, he presented a memorial to the Lt. Governor claiming that the late Maharaja was his "Gotra Sapinda".
In the memorial, he stated thus: "Raja Dhrub Singh had no issue.
Therefore, according to the provisions of the Hindu Law he converted his daughter 's son Jugal Kishore Singh who belonged to the Gautam Gotra to Kashyap Gotra and then adopting him as his son appointed him to be his successor.
The Maharaja Bahadur was in the 5th lineal descent from Jugal Kishore Singh, the petitioner is in the 4th lineal descent from Raja Srikishen Singh.
That under the provisions of Kulachar law Your Honour 's humble petitioner is the legal heir and successor of the deceased Maharaja and. fully capable of managing the Raj." A reading of the above extract of the memorial shows that the case put forward by Raja Deoki Nandan Singh was directly contrary to the case put forward by his predecessor in the suit of 1808.
Whereas in the earlier suit, his predecessor had pleaded that Raja Jugal Kishore Singh was the daughter 's son of Raja Dhrub Singh and was not, therefore a member of the family of Raja Dhrub Singh, Raja Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh having been adopted by 10 Raja Dhrub Singh was a member of the family of Raja Dhrub Singh.
In the above said memorial, it was pleaded by the successor of the plaintiff in the suit of 1808 that Raja Jugal Kishore Singh who belonged to Gautam Gotra had been adopted by Raja Dhrub Singh who belonged to Kashyap Gotra and had been appointed by him as his successor.
On the death of Maharaja Harendra Kishore Singh, the estate came into the possession of his senior widow, Maharani Sheo Ratna Kuer.
Within about two years from the date of the death of Maharaja Harendra Kishore Singh, a suit was instituted in Title Suit No. 139 of 1895 on the file of the Subordinate Judge of Tirhoot by Ram Nandan Singh, fifth in descent from Raja Ganga Prasad Singh (who was the plaintiff in the suit of 1808) against Maharani Sheo Ratna Kuer claiming the estate of Raja Harendra Kishore Singh.
The main pleas raised by him in the suit were that the succession to the Bettiah Raj was governed by the custom of male linear primogeniture; that females were excluded from succeeding to the Raj; that Raja Jugal Kishore Singh had been adopted by Raja Dhrub Singh as his son and that he being an agnate was entitled to the possession of the estate of Maharaja Harendra Kishore Singh.
Another suit viz.
Title Suit No. 108 of 1896 was filed by Girja Nandan Singh whose father Deo Nandan Singh had submitted the memorial to the Lt. Governor of Bengal on April 11, 1893.
This Girja Nandan Singh was fourth in descent from Doostdaman Singh, a younger brother of Raja Ganga Prasad Singh and while supporting the stand of the plaintiff, Ram Nandan Singh in the Title Suit No. 139 of 1895 on the point of Raja Jugal Kishore 's adoption by Raja Dhrub Singh and exclusion of females from succession to the Raj, he pleaded that he was entitled to succeed to the Raj by the rule of propinquity, as all the branches of the family were joint in status, there being no custom of male linear primogeniture as put forward in the suit of Ram Nandan Singh i.e. in the Title Suit No. 139 of 1895.
Both the suits were contested by Maharani Sheo Ratna Kuer.
During the pendency of the two suits, she died and Maharani Janki Kuer, the second widow of Maharaja Harendra Kishore Singh was brought on record as the defendant in both the suits.
Title Suit No. 139 of 1895 was decreed by the trial Court but on appeal by Maharani Janki Kuer, the said decree was set aside and the suit was dismissed by the High Court of Judicature at Fort William in Bengal by its judgment dated April 14, 1889.
Against the decree of the High Court, Ram Nandan Singh filed an appeal before the Privy Council.
The Privy Council affirmed the decree of the High Court in Ram Nandan Singh vs Janki Kuer(1) The Privy 11 Council held that the two pergunnahs Majhwa and Simrown which were granted pursuant to the orders of Lord Cornwallis to Raja Bir Kishore Singh became the separate property of Raja Bir Kishore Singh free from any coparcenery right of succession of the branches of the family then represented by Srikishen and Abdhoot.
They held that from the letter of Lord Cornwalis dated September 22, 1790 extracted above, it was clear that Raja Jugal Kishore Singh had been driven out from the country for the acts of rebellion and that the Government was at liberty to divide the Sirkar into two portions and to grant one portion to Raja Bir Kishore Singh and another portion to Srikishen and Abdhoot in direct exercise of sovereign authority.
It further held that the grants so made by the Government proceeded from grace and favour alone.
It was further held that the estate which was granted in favour of Raja Bir Kishore Singh became his separate and self acquired property though with all the incidents of the family tenure of the old estate as an impartible Raj Consequently, the plaintiff was not entitled to claim it on the basis of the custom of male linear primogeniture.
The Privy Council also held that there was no inconsistency between a custom of impartibility and the rights of females to inherit and therefore, Maharani Sheo Ratna Kuer and after her Maharani Janki Kuer could succeed to the estate of their husband, Maharaja Harendra Kishore Singh and remain in possession thereof.
The Privy Council, however, declined to decide the question whether Raja Jugal Kishore Singh had been adopted by his maternal grandfather, Raja Dhrub Singh or became his son and a member of his family by some customary mode of affiliation i.e. as Putrika Putra and left the question open in the following terms: "There remains only the issue whether Raja Jugal Kishore was adopted by his maternal grandfather Raja Dhrub Singh, or became his son and a member of his family by some customary mode of affiliation.
The determination of this issue against the appellant would be fatal to his case, because in that case he would not be able to prove that he was of the same family as the late Sir Harendra.
The learned judges have not found it necessary for the decision of the present case to decide this issue, and their Lordships agree with them in thinking that it is the better course not to do so, because the same issue may hereafter arise for decision between different parties.
" The other suit i.e. Title Suit No. 108 of 1896 which was filed by Girja Nandan Singh was dismissed by the trial court and the appeal filed by him before the High Court of Judicature at Fort William in Bengal (Calcutta) was also dismissed on April 14, 1889, the same day on which the High Court had disposed of the appeal in the other suit.
12 A few years later, one Bishun Prakash Narain Singh, fifth in descent from Abdhoot Singh also filed a suit in Title Suit No. 34 of 1905 in the court of the Subordinate Judge of Chapra, claiming title to the estate of Maharaja Harendra Kishore Singh on the footing that his branch of the family was joint in status with Maharaja Harendra Kishore Singh and so he was entitled to succeed to him under the rules of survivorship.
That suit failed in all the courts including the Privy Council whose judgment is reported in Rajkumar Babu Bishun Prakash Maraain Singh vs Maharani Janki Kuer & Ors.(1) The genealogy of the family relied on in the above suit which is found at page 858 in 24 Cal.
W. N. is given below to facilitate the understanding of the relationship amongst the parties: Raa Ugrasen Singh (died 1659) | Raja Gaj Singh (died 1694) | | | | Raja Daleep Singh Pirthi Singh Satrajit Singh (died 1715) (dead) (dead) | | | | | Bishun Prakash Raja Dhrub Singh Srikishen Singh Narayan Singh (died 1762) (dead) (Plaintiff) | | (Fifth in descent | | from Satrajit | | Singh) Daughter 's son (Putrika Putra) | | Raja Jugal Kishore Ram Nandan Girja Nandan Singh (died 1785) Singh Singh | (Defendant (Defendant | No. 2) No. 3) Raja Jugal Kishore (Fifth in (Fourth in Singh (died 1816) descent from descent from | Srikishen Singh) Srikishen Singh) | | | Maharaja Anand Maharaja Nawal Kishore Singh Kishore Singh (died 1838) (died 1855) | | | Maharaja Rajendra Mahendra Kishore Singh Kishore Singh (died 1883) (died before his | brother) | Maharaja Sir Harendra Kishore Singh, who died childless on 26th March, 1893, leaving (1) Rani Sheoratan Koer died (2) Rani Janki Koer Defendant No. 1 13 It should be mentioned here that in none of the suits Title Suit No. 139 of 1895, Title Suit No. 108 of 1896 and Title Suit No. 34 of 1905 referred to above, the question whether Raja Jugal Kishore Singh had become a member of the family of Raja Dhrub Singh either by virtue of adoption or as Putrika Putra (appointed daughter 's son) was decided even though the plaintiff in each of the above suits had raised such a plea.
As mentioned earlier after Maharani Janki Kuer succeeded to the estate of Maharaja Harendra Kishore Singh on the death of Maharani Sheo Ratna Kuer, the management of the estate was taken over by the Court of Wards, Bihar in 1897, a declaration being made that Maharani Janki Kuer was incompetent to manage the estate.
Since the properties of the estate were spread over both in the State of Bihar and in the State of Uttar Pradesh, the Bihar properties came to be managed by the Court of Wards, Bihar while those in Uttar Pradesh were being managed by the State of Uttar Pradesh through the Collector of Gorakhpur.
Maharani Janki Kuer took up her residence at Allahabad where she eventually died childless and intestate on November 27, 1954.
Shortly after her death on December 6, 1954, the State of Bihar made an application before the Board of Revenue, Bihar praying that the estate of Maharaja Harendra Kishore Singh which was held by Maharani Janki Kuer as a limited heir and managed by the Court of Wards and the Government of Uttar Pradesh, as stated above should be released from the management of Court of Wards and handed over to the Bihar State Government since the State of Bihar had become entitled to the estate by virtue of the rule of escheat, as there was no heir of the last male holder who could lay claim to it.
Upon this application, the Board of Revenue directed the issue of a Notification which was published in the Official Gazette calling upon interested parties to prefer their claims, if any, to the properties comprised in the estate.
In pursuance of this Notification about one dozen persons came forward, some of whom claimed to be entitled to the stridhana and personal properties of late Maharani, such as cash, jewellery etc.; some others claimed to be entitled to maintenance allowance out of the estate while some others claimed the entire estate on the footing that the title to the estate had passed to them by succession which opened upon the death of Maharani Janki Kuer.
Amongst the persons who thus claimed title to the estate, mention may be made of Bhagwati Prasad Singh of village Baraini, in the District of Mirzapur (Uttar Pradesh) and Suresh Nandan Singh of Sheohar.
The Board of Revenue, however, declined to release the estate in favour of any of the claimants and on January 18, 1955 passed an order to the effect that the Court of Wards would retain 14 charge of the properties comprised in the estate until the dispute as to its succession was determined by a competent civil court.
Thereafter one Ram Bux Singh instituted a suit being Title Suit No. 3 of 1955 on the file of the Civil Judge at Varanasi claiming title to the estate.
That suit was, however, allowed to be withdrawn with the permission of the court.
Subsequently came to be instituted Title Suit No. 44 of 1955 on the file of the Subordinate Judge at Patna by Suresh Nandan Singh.
On his death, his son, Davendra Nandan Singh and his widow Ram Surat Kuer were brought on record as plaintiffs.
That suit was dismissed alongwith two other suits with which alone we are concerned in these appeals reference to which will be made hereafter.
Since the plaintiffs in the above suit were also defendants in the said two other suits, the plaintiffs therein filed three First Appeals Nos. 169, 170 and 171 of 1966 before the High Court of Patna against the decrees passed in the three suits.
All the aforesaid three appeals were dismissed for non prosecution by the High Court.
We are, therefore, not concerned with the claim of the plaintiffs in that suit in these appeals.
The two other suits that were filed were Title Suit No. 25 of 1958 and Title Suit No. 5 of 1961.
Title Suit No. 25 of 1958 was filed by Ambika Prasad Singh and others claiming the estate on the basis that Raja Jugal Kishore Singh succeeded to the gaddi of Sirkar Champarun as the adopted and affiliated son and successor of Raja Dhrub Singh and not as his daughter 's son as alleged subsequently by some others; that the last male holder of the estate was Maharaja Harendra Kishore Singh, the great grandson of the said Raja Jugal Kishore Singh and that plaintiff No. 1 in the suit, Ambika Prasad Singh being nearest in degree among the reversioners to the last male holder to Maharaja Harendra Kishore Singh as the descendent of Satrajit Singh, the full brother of Raja Dalip Singh was the legal heir to the estate in question.
It was pleaded that plaintiffs Nos. 2 and 4 to 8 and 10 to 13 being next in degree to the plaintiff No. 1 and plaintiff No. 14 being the wife of plaintiff No. 7 and plaintiff No. 9 being the mother of plaintiffs Nos.
10 to 13 had also joined the suit in order to avoid multiplicity of suits and conflict of interest.
It was also alleged that there was an agreement amongst some of the plaintiffs entered into on September 22, 1955 to claim the estate jointly and that subsequently the said agreement had been repudiated and a fresh family arrangement had been entered into by the plaintiffs which was bonafide settling their claims to the estate.
Under the said family arrangement, it had been agreed that the estate in the event of their succeeding in the suit should be distributed amongst 15 them in accordance with the terms contained therein.
They claimed that in any event, the plaintiffs in the said suit alone were entitled to the estate and no others.
The next suit with which we are concerned in these appeals is Title Suit No. 5 of 1961 which was filed by Radha Krishna Singh and others.
The case of the plaintiffs in this suit was that Raja Dhrub Singh died leaving behind him two daughters viz. Benga Babui and Chinga Babui; that Benga Babui was married to Babu Raghunath Singh of Gautam Gotra who was by caste a Bhumihar; that Raja Dhrub Singh had become separated from his other agnatic relations, namely the heirs of Prithvi Singh of village Sheohar and Satrajit Singh of village Madhubani; that on his death which took place in 1762, Raja Jugal Kishore Singh succeeded him as his daughter 's son and that plaintiffs 1 to 8, sons of Bhagwati Prasad Singh who belonged to the family of Raghunath Singh were the nearest heirs of the last male holder, Maharaja Harendra Kishore Singh.
In substance, their case was that Raja Jugal Kishore Singh who succeeded to the estate of Raja Dhrub Singh continued to be a member of his natural father 's family and had not become either by adoption or by affiliation a member of the family of Raja Dhrub Singh.
It was further alleged that plaintiffs 1 to 8 were men of poor means and could not arrange for money to fight out the litigation and they, therefore, had conveyed one half of their right in the suit estate under a registered sale deed dated December 12, 1958 in favour of plaintiffs 9 to 15.
In view of the said deed, according to the plaintiffs in the said suit, plaintiffs 1 to 8 were entitled to one half of the estate and the other half belonged to plaintiffs 9 to 15.
On the above basis, Title Suit No. 5 of 1961 was filed by the plaintiffs therein for a declaration of their title.
The plaintiffs in Title Suit No. 44 of 1955 were impleaded as defendants in Title Suit No. 25 of 1958 and Title Suit No. 5 of 1961.
The plaintiffs in Title Suit No. 25 of 1958 were impleaded as defendants in the other suits.
Similarly the plaintiffs in Title Suit.
No. 5 of 1961 were impleaded as defendants in the two other suits.
The State of Bihar which had preferred its claim on the basis of the rule of escheat was also impleaded as defendant in each of the three suits.
The defendants in each of the suits other than the State of Bihar denied the claim of the plaintiffs in that suit.
The State of Bihar pleaded in all the three suits that none of the plaintiffs was an heir of the last male holder.
The Additional Subordinate Judge, Patna who tried all the three suits together dismissed all of them by his judgment dated February 15, 1966.
The principal issues which arose for decision before the trial court were: (1) Was Raja Jugal Kishore Singh the Putrika Putra of Raja Dhrub Singh by appointed daughter and affiliated as such as 16 alleged by the plaintiffs in Title Suit No. 44 of 1955 and Title Suit No. 25 of 1958? (2) Was succession to Bettiah Estate governed by the Mithila or the Benares School of Hindu Law? (3) Was the Bettiah Estate self acquired or the joint property of Raja Jugal Kishore Singh? (4) Was the succession to the Bettiah estate governed by the rule of primogeniture? (5) Whether any of the plaintiffs was the heir of the last male holder; and (6) Has the Bettiah estate vested in the State of Bihar by escheat? At the conclusion of the trial, the trial court held that the custom of taking a son as Putrika Putra had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as the Putrika Putra and, therefore, Raja Jugal Kishore Singh was not the Putrika putra of Raja Dhrub Singh; that the succession to the estate of Maharaja Harendra Kishore Singh was governed by the Benares School of Hindu law; that the estate having been acquired by force of arms was the self acquired property of Raja Jugal Kishore Singh; that the succession of the Bettiah estate was not governed by the rule of primogeniture; that in view of the finding that Raja Jugal Kishore Singh was neither putrika putra nor was he affiliated to of family of Raja Dhrub Singh by adoption in any form, the plaintiffs in Title Suit No. 25 of 1958 and Title Suit No. 44 of 1955 could not claim to be the heirs of the last male holder: that the plaintiffs in Title Suit No. 5 of 1961 had not established that they were the reversioners to the estate and as none of the plaintiffs in the three suits had established that they were entitled to the estate it had vested in the State of Bihar by virtue of the rule of escheat.
It is already stated that the three First Appeals Nos. 169 to 171 of 1966 filed on the file of the High Court by the plaintiffs in Title Suit No. 44 of 1955 were dismissed for non prosecution.
Aggrieved by the decree of the trial court, the plaintiffs in Title Suit No. 25 of 1958 filed First Appeals Nos. 130, 131 and 134 of 1966 on the file of the High Court of Patna and the plaintiffs in Title Suit No. 5 of 1961 filed First Appeals Nos. 85, 86 and 87 of 1966 on the file of the said Court.
The above said six appeals were heard by a Bench of three learned Judges of the High Court viz. G. N. Prasad, J., A. N. Mukherji, J. and Madan Mohan Prasad, J., G. N. Prasad, J. held that the custom of taking a son as Putrika Putra had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra and so Raja Jugal Kishore Singh had 17 not become a member of the family of Raja Dhrub Singh and that the plaintiffs in Title Suit No. 25 of 1958 had not therefore established their claim to the estate.
He agreed with the finding of A. N. Mukherji, J. that the plaintiffs in Title Suit No. 5 of 1961 had established their title to the estate.
A. N. Mukherji, J. held that the plaintiffs in Title Suit No. 5 of 1961 were entitled to succeed in their action and agreed with the finding of G. N. Prasad, J. that Raja Jugal Kishore Singh had not become a member of the family of Raja Dhrub Singh either as a putrika putra or by adoption for the reasons given by G. N. Prasad, J. Madan Mohan Prasad, J. agreed with the opinions of G. N. Prasad and A. N. Mukherji, JJ.
that the institution of putrika putra had become obsolete during the life time of Raja Dhrub Singh and that Raja Jugal Kishore Singh had not been taken as putrika putra or in adoption by Raja Dhrub Singh.
He however, did not agree with the opinion expressed by A. N. Mukherji, J. which had the concurrence of G. N. Prasad.
J. that the plaintiffs in Title Suit No. 5 of 1961 had established that the plaintiffs 1 to 8 in Title Suit No. 5 of 1961 were the nearest reversioners entitled to the estate.
In view of the aforesaid opinions, the appeals filed by the plaintiffs in Title Suit No. 25 of 1958 were dismissed since all the three Judges were unanimously of opinion that Raja Jugal Kishore Singh had not become a member of the family of Raja Dhrub Singh either as putrika putra or by adoption and all the appeals filed by the plaintiffs in Title Suit No. 5 of 1961 were allowed.
In the result, Title Suit No. 5 of 1961 was decreed as prayed for Consequently the claim of the State of Bihar was negatived.
Aggrieved by the decree passed in the six appeals referred to above, the plaintiffs in Title Suit No. 25 of 1958 applied to the High Court for the issue of a certificate to prefer appeals to this Court.
The State of Bihar also made a similar application.
It should be mentioned here that in the course of the hearing of the appeals before the High Court, one of the contentions urged by the parties other than the plaintiffs in Title Suit No. 25 of 1958 was that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr.
vs Moparthi Chenchuramayya, Minor & Ors.(1) was binding on the courts in India and that it was not open to the plaintiffs in Title Suit No. 25 of 1958 to urge that Raja Dhrub Singh could take Raja Jugal Kishore Singh as putrika putra.
G. N. Prasad, J. with whom A. N. Mukherji, J. agreed had held relying on the above decision of the Privy Council that the institution of putrika putra had become obsolete during the relevant period.
It was contended by the plaintiffs in Title Suit No. 25 of 1958 that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr.
vs 18 Moparthi Chenchuramayya, Minor & Ors.
(supra) was not binding on Indian courts after India became a Republic.
The Division Bench which heard the applications for the issue of certificates being of opinion that the case of the plaintiffs in Title Suit No. 25 of 1958 involved a substantial question of law as to the interpretation of the Constitution viz. whether the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr.
vs Moparthi Chenchuranayya, Minors & Ors.(supra) was binding on the Indian Courts after India became a Republic issued a certificate in favour of the plaintiffs in Title Suit No. 25 of 1958 under Article 132(1) of the Constitution.
On the applications filed by the State of Bihar, the High Court issued a certificate under Article 133 of the Constitution certifying that the case involved substantial questions of law of general importance which in the opinion of the High Court needed to be decided by the Supreme Court.
On the basis of the above certificates, plaintiffs in Title Suit No. 25 of 1958 filed Civil Appeals Nos.
114 119 of 1976 and the State of Bihar filed Civil Appeals Nos.
494 496 of 1975.
After the above appeals were filed the respondents in Civil Appeals Nos. 114 119 of 1976 who had succeeded in the High Court filed a petition before this Court to revoke the certificate issued by the High Court under Article 132(1) of the Constitution.
When the above appeals were taken up for hearing alongwith the petition for revocation of the certificate, the appellants in Civil Appeals Nos. 114 119 of 1976 filed a Special Leave Petition under Article 136 of the Constitution requesting this Court to grant them leave to canvass questions other than those relating to the interpretation of the Constitution in support of their case.
We have heard the parties on the above Special Leave Petition also.
As mentioned earlier, we propose to dispose of by this Judgment Civil Appeals Nos. 114 119 of 1975 and the Special Leave Petition referred to above.
At the outset it is to be noted that the appellants in Civil Appeals Nos. 114 119 of 1975 can succeed only if they establish that Raja Jugal Kishore Singh had become the son of Raja Dhrub Singh in a manner known to law.
In the instant case even though there was some amount of ambiguity at some early stages of these proceedings in the trial court as to the true case of the appellants, finally they took the position that Raja Jugal Kishore Singh had become the son (putrika putra) of Raja Dhrub Singh as the latter had appointed his daughter i.e. the mother of the former as his putrika for the purpose of begetting a son who would be his (latter 's) putrika putra.
The State of Bihar and the other contesting parties claimed that the practice of appointing a daughter to beget a son who would be putrika putra had become obsolete by the time such appointment was alleged to 19 have taken place in this case; that even if such a practice was in vogue, Raja Dhrub Singh had in fact not made any such appointment and lastly the appellants who claimed on the above basis were not the nearest reversioners of the last male holder.
From the pleadings relevant for the purpose of these appeals, three questions arise for consideration: (1) Whether the practice of appointing a daughter as putrika for begetting a son who would be putrika putra was in vogue during the life time of Raja Dhrub Singh? (2) If the answer to question No. (1) is in the affirmative, whether Raja Dhrub Singh had in fact appointed his daughter (the mother of Raja Jugal Kishore Singh) as his putrika? and (3) If the answers to questions Nos.
(1) and (2) are in the affirmative, whether the appellants were the nearest reversioners to the last male holder Maharaja Harendra Kishore Singh, if he had lived till the date on which the limited estate ceased i.e. till the death of Maharani Janki Kuer which took place on November 27, 1954? From the points formulated above, it is evident that if the appellants in these appeals i.e. plaintiffs in Title Suit No. 25 of 1958 establish that Raja Jugal Kishore Singh was the putrika putra of Raja Dhrub Singh, the plaintiffs in Title Suit No. 5 of 1961 have to fail but if the appellants fail to establish that fact, they fail irrespective of the result of the dispute between the plaintiffs in Title Suit No. 5 of 1961 and the State of Bihar.
It is in these circumstances, we proposed to dispose of these and the connected appeals in two parts.
In order to determine whether the practice of taking a son as putrika putra was prevalent at the time when Raja Dhrub Singh is alleged to have taken Raja Jugal Kishore Singh as putrika putra, we have to examine the several texts and practices prevailing in India at the relevant point of time.
According to Yajnavalkya, the sources of Hindu Dharma are those enumerated in the following text: Shruti smritih sadacharah swasya cha priyamatmanah samyakasankalpajah kamo dharmmoolmidang smrittam.
(The sources of Dharma are described to be (1) the Vedas, (2) the Smritis, (3) the practices of good men, (4) what is acceptable to one 's own soul, and (5) the desire produced by a virtuous resolves).
While interpreting the Smritis one difficulty which has to be encountered is the uncertainty about their chronology.
Another difficulty felt by many jurists while interpreting them is the existence 20 of conflicting texts, sometimes in the same Smriti.
This appears to be on account of the successive changes in the views of society, which may have taken place over several centuries.
Very often the prevailing practices and customs at a given point of time might be quite different from those obtaining some centuries before that time Maxims which have long ceased to correspond with actual life are reproduced in subsequent treatises, as pointed out by John. D. Mayne, either without comment or with a non natural interpretation.
"Extinct usages are detailed without a suggestion that they have become extinct from an idea that it is sacrilegious to omit anything that has once found a place in the Holy Writ.
Another inference is also legitimate that while some Smritis modified their rules to provide for later usages and altered conditions of society, other Smritis repeated the previous rules which had become obsolete, side by side with the later rules.
(See Mayne 's Treatise on 'Hindu law and Usage ' (1953 Edition) pp 20 21).
Etymologically, the word 'putrika ' means a daughter (especially a daughter appointed to raise male issue to be adopted by a father who has no sons), and 'putrika putra ' means a daughter 's son who by agreement or adoption becomes the son of her father (Vide Sanskrit English Dictionary by Sir M. Monier Williams).
According to Hemadri, the author of Chaturvarga Chintamani (13th Century), a 'Putrika putra ' can be of four descriptions.
The following passage appearing at page 1046 in Volume II, Part (4) of the Collection of Hindu Law Texts Yajnavalkya Smriti with the commentaries of the Mitakshara etc.
(translated by J. R. Gharpure) refers to the four kinds of putrika putras: "The putrika putra is of four descriptions.
(1) The first is the daughter appointed to be a son.
(See Visishtha XVII.
15" Putrikaiveti ) (2) The next is her son.
He is called "the son of an appointed daughter", without any special contract.
He is, how ever, to be distinguished from the next i.e. the third class.
He is not in the place of a son, but in the place of a son 's son and is a daughter 's son.
Accordingly he is described as a daughter 's son in the text of Sankha and Likhita: "An appointed daughter is like unto a son, as Prachetasa has declared: her offspring is termed a son of an appointed daughter: he offers funeral oblations to the maternal grand father and to the paternal grandsire.
There is no difference between a son 's son and a daughter 's son in respect of benefits conferred." (3) The third description of a son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation as stated by Vasishtha 21 XVII.17.
He appertains to his maternal grandfather as an adopted son.
(4) The fourth is a child born of a daughter who was given in marriage with a stipulation in this form "the child who shall be born of her, shall perform the obsequies of both." He belongs as a son to both grandfathers.
But in the case where she was in thought selected for an appointed daughter, she is so without a compact, and merely by an act of the mind.
(Manu Ch.
IX 127 and 136), Hemadri quoted in Colebrocke.
" It is well known that in the ancient Hindu law, the right of a person to inherit the property of another depended principally on his right to offer pinda and udaka oblations to the other.
The first person who was so entitled was the son.
As time passed the concept of sonship was modified and by the time of Manu thirteen kinds of sons were known aurasa son who was begotten on a legally wedded wife and twelve others who were known as secondary sons (putra prathinidhis) and Manu omits any reference to putrika putra as such although in another place he observes : Aputroanen vidhina sutang kurvit putrikam Yadpatyam Bhavedasyah Samepoothro bhavedithi (He who has no son may make his daughter in the following manner an appointed daughter (Putrika saying to her husband) `the male child born of her shall be my son ').
Another reading of the same sloka gives the second part of the above sloka as `yadupathaya bhavadasthaya thanmasthathu sadhukarma ' (The (male) child born of her shall perform my funeral rites).
Yathaivathma thatha puthrah puthren duhithasma Thasyamatmani thishthanthyam kathmanyo dhananghareth Manu IX 130 (A son is even as one 's self, a daughter is equal to a son, how can another (heir) take the estate while (such daughter who is) one 's self lives).
Yajnavalkya says that twelve sons including the legitimate son who is procreated on the lawfully wedded wife were recognized by law.
Of them, it is said, the legitimate son is considered to be the primary son and others as secondary sons.
The relevant text reads thus: Aursodharmmapatnija statsamah putrikasutah Kshetrajah kshetra jatastu sagotrerentaren wa grihe prachanna uttpanno goodhjastu sutah smritah kanin kanyakajato matamah sutomatah 22 Akshatayang kshatayamba jaatah paunarbhavah sutah Dadyanmata pita wa yang sa putro dattako bhaweta Kritashcha tabhyang veekritah kritrimah syataswa yangkritah dattatma tu swayang Datto garbevinah sahodhajah Utasristho grahyate yastu sopividhho bhawetsutah The above text is translated by section section Setlur in his book entitled `A complete Collection of Hindu law Books on Inheritance ' thus : "The legitimate son is one procreated on the lawful wedded wife.
Equal to him is the son of an appointed daughter.
The son of the wife is one begotten on a wife by a sagotra of her husband, or by some other relative.
One, secretly produced in the house, is son of hidden origin.
A damsel 's child is one born of an unmarried woman : he is considered as son of his maternal grandsire.
A child, begotten on a woman whose first marriage had not been consummated, or on one who had been deflowered before marriage, is called the son of a twice married woman.
He whom his father or his mother gives for adoption shall be considered as a son given.
A son bought is one who was sold by his father and mother.
A son made is one adopted by a man himself.
One, who gives himself, is self given.
A child accepted, while yet in the womb, is one received with a bride.
He who is taken for adoption having been forsaken by his parents, is a deserted son.
" `Aurasa ' is the son procreated by a man himself on his wife married according to sacramental forms prescribed by Sastra.
`Putrikaputra ' is the son of an appointed daughter.
`Kshetraja ' is the son begotten on the wife of a person by another person sagotra or any other.
`Gudhaja ' is the son secretly born in a man 's house when it is not certain who the father is.
`Kanina ' is the son born on an unmarried girl in her father 's house before her marriage.
`Paunarbhava ' is the son of a twice married woman.
`Dattaka ' is the son given by his father or mother.
`Krita ' is the son bought from his father and mother or from either of them.
`Kritrima ' is the son made (adopted) by a person himself with the consent of the adoptee only.
`Svayamdatta ' is a person who gives himself to a man as his son.
`Sahodhaja ' is the son born of a woman who was pregnant at the time of his marriage.
`Apavidha ' is a person who is received by another as his son after he has been abandoned by his parents or either of them.
There is one other kind of son called `Nishada ' who is the son of a Brahmin by a Sudra who is not referred to in the above quoted text of Yajnavlkya.
While commenting on the above text, Vijnanesvara explains `putrika 23 putra ' in the Mitakshara (composed between 1070 1100 A.D.) as follows : Tatasamah putrikasutah tatsamah aurasasamah putrikayah sutah ataevoursasamah, yathah vashisthah abhratrikang pradasyami tubhyang kanyamalangkritam asyang yo jayate putrah sah me putro bhawedititee athwa putrikaiv sutah putri kasutah sopyoursasamaev pitravayavanamalpatwata matravayavanang bahulyachha, Yathas vashishthah tritiyah putrah putrikaivetyarthah (The son of an appointed daughter (putrika putra) is equal to him: that is equal to the legitimate son.
The term signifies`son of a daughter '.
Accordingly he is equal to the legitimate son as described by Vasishtha: "This damsel, who has no brother, I will give unto thee, decked with ornaments: the son who may be born of her shall be my son."; Or that term may signify a daughter becoming by special appointment a son.
Still she is only similar to a legitimate son; for she derives more from the mother than from the father.
Accordingly she is mentioned by Vasishtha as a son, but as third in rank.
"The appointed daughter is considered to be the third class of sons.") (Vide section section Setlur on `A complete collection of Hindu Law Books on Inheritance ' p. 30).
Proceeding further Vijnanesvara comments on the following text of Yajnavalkya : Pinddonshaharshchekshang poorvabhawe parah parah Among these, the next in order is heir and presents funeral oblations on failure of the preceding) as under : Atekshang poorvoktanang putranang poorvasya poorvasyabhawe uttrah pindadhah shradhdong shaharo veditavyaah (Of these twelve sons abovementioned, on failure of the first, respectively, the next in order, as enumerated, must be considered to be the giver of the funeral oblation or performer of obsequies, and taker of a share or successor to the effects.).
Then Vijnanesvara says with reference to what Manu Smritis has stated about the right of the primary and secondary sons to succeed to the estate of a person thus : "Manu, having promised two sets of six sons, declares the first six to be heirs and kinsmen; and the last to be not heirs, but kinsmen : "the true legitimate issue, the son of a wife, a son given, and one made by adoption, a son of concealed origin, and 24 one rejected are the six heirs and kinsmen.
The son of an unmarried woman, the son of a pregnant bride, a son bought, a son by a twice married woman, a son self given, and a son by a Sudra woman, are six not heirs but kinsmen.
" Thereafter he deals with the right of a woman to inherit the estate of one, who leaves no male issue.
He says "that sons, principal and secondary, take the heritage, has been shown.
The order of succession among all on failure of them, is next declared.
" And then quotes the following text of Yajnavalkya : Patni duhitharaschaiva pithrau bhratarastatha tata suta gotraja bandhuh shisya sabrahmacharinah akshamabhawe poorvasya dhanbhaguttarottarah swaryathsya hyaputrasya sarv varnekshwayan vidhih (The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student: on failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven leaving no male issue.
This rule extends to all classes).
Commenting on the above text, Vijnanesvara says: Mkhyagaunsutha dhay grihrantitee nirupitam tekshambhawe sarwekshang dayadakrama uchyate, poorvokta dwadash putra yasyang na santi asavaputrah tashyaputrasya swaryatasya purlokang gatasya ghanbhaka ghangrahi akshang patnayadinamanukrantanang madhye poorvasya poorvashyabhawe uttara uttaro ghanbhagiti sambandhah (He, who has no son of any of the twelve descriptions above stated is one having `no male issue '.
Of a man, thus leaving no male progeny, and departing for another world, the heir, or successor, is that person, among such as have been here enumerated (the wife and the rest) who is next in order, on failure of the first mentioned respectively.
Such is the construction of the sentence).
From the foregoing, it is obvious that in the course of the passages extracted above, Vijnanesvara was only commenting upon the relevant text of Yajnavalkya which laid down the practice prevalent in ancient times.
He also notices that according to Manu only six of the twelve sons were entitled to succeed to the estate and the remaining six were not heirs but kinsmen.
We have not been shown any Commentary of Vijnanesvara that at the time when the Mitakshara was written, all the twelve kinds of sons described by Yajnavalkya were in fact entitled to succeed to the estate of the deceased and that the wife of the deceased succeeded to his estate only when none of the 25 twelve kinds of sons was existing.
Certainly that has not been the practice for several centuries.
In the absence of a son, grandson or great grandson (aurasa or adopted) the wife succeeds to the estate of her husband.
The other kinds of sons including putrika putra are not shown to have preceded the wife.
Baudhayana who belonged to the Krishna Yajurveda School and who composed the Baudhayana Dharma Sutra long prior to the Mitakshara refers to the twelve kinds of sons and divides them into two classes one being entitled to share the inheritance and the other to be members of the family only: Aurasang putrikaputrang kshetrajang dattkritrimau goodhhajang chapvidhang cha rikthabhajah prachakchate Kanin cha sahodhang cha kritang pounarbhavang tatha swayangdatang nikshadang cha Gotrabhajah prachakchte In regard to this they quote also (the following verses): They call the legitimate son, the son of an appointed daughter, the son begotten on a wife, the adopted son, the son made, the son born secretly, and the son cast off, entitled to share the inheritance.
The spinster 's son, the son taken with a bride, the son bought, the son of a twice married woman, the self given son, and the Nishada (these) they call members of (their father 's family) (Vide West & Buhler on `Hindu Law Inheritance ' at p. 317).
That some of the secondary sons were not entitled to succeed according to Baudhayana may be noticed here and this statement does not agree with the Mitakshara 's Commentary that all the principal and secondary sons succeed before the wife.
This shows that the statement in the Mitakshara refers partly to historical facts and partly to existing facts.
Vishnu Dharmasastra which according to Dr. Jolly belongs to the third century A.D. describes `putrika putra ' as follows: Putrikaputrasthrithayah yastwasyaah putrah sa me putro bhawediti ya pithra datta sa puthrika putrikavidhinaapratipaditapi bhratrivihina puthrikaiv (The third is the son of an appointed daughter.
She is called an appointed daughter, who is given away by her father with the words, `The son whom she bears, be mine '.
A girl who has no brother is 26 considered an appointed daughter, though she be not given away according to the rule of an appointed daughter) (Vide West & Buhler on `Hindu Law Inheritance ' at p. 338).
In this text what needs to be noticed is that a brotherless daughter becomes a putrika even if she is not given according to the prescribed procedure.
Vasishtha who according to Dr. Jolly must have composed his Dharma Sutra several centuries before Christ describes `putrika ' as follows : Tritya puthrika, vigyayate, abhratrika pungsah pith rinbhyeti pratichhinang gachhati putratwama Abhrathrikang pradasyami tubhyang kanyamalangkritama Ashyang yo jayate puthrah sa me puthro bhawediti (The third is an appointed daughter.
It is known that "the girl who has no brother comes back to the males of her own family, to her father and the rest, returning she becomes their son.
" Here follows the verse to be spoken by the father when appointing a daughter, "I shall give thee to the husband, a brotherless damsel, decked with ornaments; the son whom she may bear, he be my son." (Vide West & Buhler on `Hindu Law Inheritance ' at p. 331).
In the above text "the girl who has no brother comes back to the males of her own family, to her father and the rest, returning she becomes their son" apparently refers to the following Shloka in Rig Veda : Abhratew punsa aeti pratichi Gartarugiv sanye dhnanama jayew patya ushatee suvasa Uksha hashtreva nirirnite apshah Rig Veda, I, Sukta 124.
Stanza 7.
(She goes to the West, as (a woman who has) no brother (repairs) to her male (relatives), and as one ascending the hall (of justice) for the recovery of property.
(She mounts in the sky to claim her lustre) and like a wife desirous to please her husband, Ushas puts on becoming attire, and smiling as it were, displays her charms).
Apararka or Aparaditya was a king who ruled in the twelfth century.
His commentary on the Yajnavalkya Smriti is considered to be of paramount authority and is referred to with respect in many of the 27 later Digests.
After referring to the primary and secondary sons enumerated by Yajnavalkya, Apararka observes : Puthrapratinidhinang madhye dattakah avang kaliyuge grahyah Athah aev kalou nivarthantha ityanuvrittau shaunkenoktam "dathoursetarekshang thu puthrathwen parigrahah " ithee.
(Of the different kinds of substitutes for son, only the Dattaka is valid during the Kaliyuga.
Therefore Shaunaka says: "the acceptance of sons other than Datta and Aurasa" is prohibited in the Kaliyuga.) (Vide Ghose on 'Hindu Law ' Vol. II at p. 254.) The verse of Shaunaka quoted by Apararka is found in the verses on Kalivarjya collected and printed at page 1013 of Vol.
III of P. V. Kane 's History of Dharmasastra.
The 17th verse reads (The acceptance of sons other than datta or aurasa) is one of the acts not to be done in Kaliyuga.
We find the following text in 'Parasara Madhava ' which is believed to have been written by Madhavacharya, the prime minister of the Vijayanagara kings in or about the year 1350: Dattavyatiriktanang gounputrarnang rikthbhaktava Pratipadakani wakyani yugantaravikshyarni kalou yuge tekshang putratwen parigrahrnasya smrityantare nikshidhatwata " Dattourasetrekshantu puthrathwen parigrahah devarern sutotpattih wanaprashthashramagrahah kalou yugotwimana dharmana varjyanahurmanikshinah ithee (The texts establishing the right to inherit of the subsidiary sons other than the Dattaka or the adopted son were applicable in past ages (and have no force now) because in another Smriti their being taken as sons is prohibited in the Kali Yuga: 'The acceptance as sons of other than the Dattaka and Aurasa sons, ' the procreation of a son by Niyoga by the husband 's younger brother and adopting the life of the Vanaprastha in old age are prohibited by the wise.) (Vide Ghose on 'Hindu Law ' Vol. II at p. 626).
The quotation in the above Commentary is stated to be from Aditya Purana.
The Smriti Chandrika of Devannabhatta according to Dr. Julius Jolly is a remarkable book on Hindu Dharmasastra for its originality and for its early date.
Though following Mitakshara on most points of importance, it introduces a great deal of new matter as well particularly with regard to the rights of woman over Stridhana, relying upon 28 many Smriti texts not referred to in the Mitakshara.
It is believed that the Smriti Chandrika was written in the thirteenth century for the author quotes Apararka (12th century) and he in his turn is quoted by Mitramisra (14th century).
In the chapter entitled 'On partition of wealth received through secondary fathers", Smriti Chandrika states: Awang nirupitagournputhranang surwekshang yugantare puthratwen parigrah, Kalou tu dattakasyaikasya "dattourasetarekshang tu putratwen parigrahah: itee, Kaleradou dharmaguptyarthang mahatmabhirdattakourse tarekshang putratwen parigraha nivarrnata, putrika karanmapyasmadev wakyatkalou nivaritama, Dattoursetratwatputrikayah, awang cha kalavoursaputrapouthrayorabhawe dattak aev gounputhro bhawati nanya ityanusandheyama.
(The secondary sons thus enumerated had all been recognised as sons in former ages; but, in the Kali age, adopted son alone is recognized.
By the text: "None is to be taken as a son except a son of the body or one who is adopted.
" the learned have, in the early period of the Kali age, prohibited the recognition of any other son than the legitimate and the adopted, with the view of maintaining virtue in the world.
The appointment of a daughter to raise up a son to her father must also be considered by the same text to be prohibited in the Kali age, such a son not being either one of the body or adopted.
The conclusion hence is that, in the Kali age, in default of a legitimate son or grandson, the adopted son alone and none else is recognised as a subsidiary son.
(Vide Setlur on 'Hindu Law Books on Inheritance ' at page 272).
It is no doubt true that in some earlier decisions to which a detailed reference at this stage is not necessary some statements found in Smriti Chandrika which were directly in conflict with the Mitakshara were not accepted and the Mitakshara was given the preference but still as observed by Mayne there can, however, be little doubt that its general authority is fairly high on points on which it does not come into conflict with the Mitakshara and that it is a work which is referred to throughout India with great respect by Nilakantha, Mitramisra and others.
Dattaka Chandrika which is a recognised treatise on the law of adoption declares in paragraphs Nos. 8 and 9 of section 1 thus: "8.
A substitute.
Now such is of eleven descriptions, the son of the wife and the rest.
Thus Manu (ordains): "Sages declare 29 these eleven sons (the son of the wife and the rest) as specified to be substitutes for the real legitimate son; for the sake of preventing a failure of obsequies.
" Vrihaspati also.
"Of the thirteen sons who have been enumerated, by Manu in their order, the legitimate son and appointed daughter are the cause of lineage.
As oil is substituted by the virtuous for liquid butter; so are eleven sons by adoption substituted for the legitimate son and appointed daughter.
Of these however in the present age, all are not recognised.
For a text recites: "Sons of many descriptions who were made by ancient saints cannot now be adopted by men, by reason of their deficiency of power;" and against those other than the son given, being substitutes, there is a prohibition in a passage of law wherein after having been promised, "The adoption, as sons of those other than the legitimate son and son given," it is subjoined, "These rules sages pronounce to be avoided in the Kali age." (See 'Hindu Law Books ' edited by Whitley Stokes in 1865 at page 630).
Dattaka Mimansa written by Nanda Pandita between 1595 1630 states. "64.
"Sons of many descriptions who were made by ancient saints cannot now be adopted by men by reason, of their deficiency of power etc.", on account of this text of Vrihaspathi and because, in this passage ("There is no adoption, as sons, of those other than the son given and the legitimate son etc.") other sons, are forbidden by Saunaka, in the Kali or present age, amongst the sons however (who have been mentioned) the son given, and the legitimate son only are admitted.
" (See 'Hindu Law Books ' edited by Whitley Stokes in 1865 at page 547).
In Bhagwan Singh vs Bhagwan Singh & Ors.(1) a Full Bench of the Allahabad High Court had to consider the authority of Dattaka Chandrika and Dattaka Mimansa as sources of Hindu Law.
Since some doubts had been expressed about it by Mandlik, Golapchandra Sarkar and Dr. Jolly who were themselves reputed writers on Hindu Law, after an elaborate discussion about several earlier decisions and treatises on Hindu Law published by that time, the majority of the Full Bench (Edge, C.J., Knox, Blair and Burkitt, JJ.) expressed the 30 view that Dattaka Mimansa was not on questions of adoption an 'infallible guide ' in the Benares School of Hindu Law.
But the minority (Banerji and Aikman, JJ.) held that Dattaka Mimansa and Dattaka Chandrika were works of paramount authority on questions relating to adoption in the Benares School also.
The Privy Council in the appeal filed against the judgment of the Full Bench observed in Bhagwan Singh & Ors.
vs Bhagwan Singh (Minor)(1) & Ors.
thus: "Their Lordships have mentioned in the prior adoption cases the views of Knox, J. as to the authority of the two Dattaka treatises just quoted.
In the present case the learned Chief Justice Edge takes even more disparaging views of their authority; denying, if their Lordships rightly understand him, that these works have been recognised as any authority at all in the Benares School of Law.
If these were anything to show that in the Benares School of Law these works had been excluded or rejected, that would have to be considered.
But their authority has been affirmed as part of the general Hindu Law, founded on the Smritis as the source from whence all Schools of Hindu Law derive their precepts.
In Doctor Jolly 's Tagore Lecture of 1883, that learned writer says: "The Dattaka Mimansa and Dattaka Chandrika have furnished almost exclusively the scanty basis on which the modern law of adoption has been based.
" Both works have been received in courts of law, including this Board, as high authority.
In Rangama vs Atchama (4 Moore 's Ind. Ap.
97) Lord Kingsdown says: "They enjoy, as we understand, the highest reputation throughout India." In 12 Moore, p. 437, Sir James Colvile quotes with assent the opinion of Sir William Macnaghten, that both works are respected all over India, that when they differ the Chandrika is adhered to in Bengal and by the Southern jurists, while the Mimansa is held to be an infallible guide in the Provinces of Mithila and Benares.
To call it infallible is too strong an expression, and the estimates of Sutherland, and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they become embedded in the general law.
" The writings of Sir William Macnaghten, Morley, Colebrooke, Sir Thomas Strange, Babu Shyama Charan Sarkar and J. section Siromani supports the above view.
In Rajendra Narain Lahoree vs Saroda Sonduree Dabee,(2) Uma Sunker Moitro vs Kali Komul Mozumdar(3), 31 Lakshmappa vs Ramava(1), Waman Raghupati Bova vs Krishnaji Kashiraj Bova(2), Minakshi vs Ramanada(3), Tulshi Ram vs Behari Lal(4) & Beni Prasad vs Hardai Bibi(5), the Indian High Courts have accepted the authority of Dattaka Mimansa and Dattaka Chandrika.
The Privy Council has also taken the same view in the Collector of Madura vs Moottoo Ramalinga Sethupathy(6).
In Abhiraj Kuer vs Debendra Singh(7) this Court has dealt with the value to be attached to Dattaka Chandrika and Dattaka Mimansa as follows: "Learned Counsel has emphasised that great authority attaches to all statements of law as regards adoption that are contained in Dattak Mimansa.
There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to be of great authority on all questions of adoption.
It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandit 's views to unfavourable criticism.
Inspite of all this the Privy Council in Bhagwan Singh vs Bhagwan Singh (1899) L.R. 26 I.A. 153, 161 did recognise that both the Dattak Mimansa and Dattak Chandrika had been received in courts of law including the Privy Council as high authorities and after drawing attention to Lord Kingsdown 's statements as regards these in Rungama vs Atchama (1846) I.A. 1, 97 and Sir James Colvile 's statement in Collector of Madura vs Moottoo Ramlinga Sethupathy (1868) 12 M.I.A. 397, 437, stated thus: "To call it (i.e. Dattak Mimansa) infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law." While saying this mention must also be made of the observations of the Privy Council in Sri Balusu Gurulingaswami vs Shri Balasu Ramalakshmamma (1899) L.R. 26 I.A. 113, 136 decided on the same date (March 11, 1899) but 32 immediately before Bhagwan Singh 's case, was decided, expressing their concurrence with the view that caution was required in accepting the glosses in Dattaka Mimansa and Dattak Chandrika where they deviate from or added to the Smrities.
" Even when they are read with care it is not possible to disbelieve the statement of law with which we are concerned since they are in conformity with many other writings discussed above.
A careful reading of the texts extracted above leads to an inference that the institution of putrika putra had become obsolete and not recognised by Hindu society for several centuries prior to the time when Smriti Chandrika or Dattaka Chandrika were written and these two.
Commentaries belong to a period far behind the life time of Raja Dhrub Singh.
Some of the decisions relied on by the parties may now be considered.
The decision in Nursingh Narain & Ors.
vs Bhuttun Loll & Ors.(1) (compiled by D. Sutherland) was not a case where the claim of a putrika putra as it was understood in Hindu Law was upheld.
In that case, the Court had to decide whether a sister 's daughter could become an appointed daughter and her son a putrika putra.
The claim was rejected with the following observations: "There is no doubt that, in ancient times, there were many legal substitutes for the sons of the body (Auras).
Manu (Chapter 9, V, 180), and Yagnyavalkya (Mitakshara, Chapter I, Section 2) enumerate no less than twelve including the legitimate son of the body; and the latter authority ranks the son of an appointed daughter ("putrika putra") next to the legitimate son, and equal to him.
It is contended by the appellant in this case that a sister 's daughter may be adopted under this authority, and become "an appointed daughter", and her son a "putrika putra", but we do not see the slightest resemblance between the two cases.
The daughter appointed to raise up issue for her father must, according to the old Hindoo Law books, be a man 's own daughter, the child of his own loins; and it is solely on the ground of this near relationship that the son of the daughter, viz. the "putrika putra" is classed in the same rank with the lawful son of the body.
It is true that, in default of an "aurasa" daughter, a daughter of the body, that is, a man could, under the old Hindoo Law, adopt a subsidiary daughter as a substitute for her; but these adoptions were "for the sake of obtaining the heaven procured by 33 the daughter 's son" (vide Dattaka Mimansa, page 138, section 18), and not for the purpose of obtaining a "putrika putra," an adopted son by means of an appointed daughter. .We think, therefore, that the appellant in the present case is not a "putrika putra," that is, he is not the son of an appointed daughter in the proper sense of the term, and has, according to ancient Hindoo Law, no status in the family of Holas Narayan.
Taking this view of the case, it is not necessary for us to enter at any great length into the second point.
All the great authorities on Hindoo Law admit that, except the Dattaka and Kritrima, no other forms of adoption are allowable in the present age.
" The last para of the above quotation is of some significance so far as these appeals are concerned.
In Thakoor Jeebnath Singh vs The Court of Wards(1) the plaintiff laid claim to an impartible raj, raj of Ramgarh on the ground that he being the father 's sister 's son of the last holder, Rajah Trilokenath, who died unmarried was entitled to the estate in preference to the defendant who was a distant agnate of the last holder.
Ordinarily the plaintiff being a bandhu could not exclude the defendant who was a sagotra sapinda of the last holder.
He therefore, put forward the plea that as his mother was the appointed daughter of Maharaj Sidnath Singh, the paternal grandfather of the last holder and he as putrikaputra should be treated as a son of Maharaj Sidnath Singh entitled to succeed to the estate.
Two questions arose before the Judicial Committee of the Privy Council in that case as in the present appeals (1) whether the practice of taking a 'putrika putra ' was in vogue and (2) whether the mother of the plaintiff had in fact been an 'appointed daughter '.
On the first question, the Privy Council observed that it was not necessary to give a finding but on the other it held that the plaintiff had not shown that his mother was in fact an 'appointed daughter '.
Even so after referring to the statements found in the books of Sir Thomas Strange and Sir William Macnaghten, the Privy Council observed that it appeared that the practice of having a 'putrikaputra ' had become obsolete.
In that connection, it observed thus: "It is not necessary in this case to decide that this is so, although there certainly does not appear to have arisen in modern times any instance in the courts where this custom had been considered." 34 Absence of cases before courts within living memory in which a claim had been preferred on the basis of affiliation in putrika putra form showed that the said practice had become obsolete.
The contention based on the theory that a person could take a son as 'putrika putra ' was rejected by the Madras High Court in the year 1908 in Sri Raja Venkata Narasimha Appa Row Bahadur vs Sri Rajah Saraneni Venkata Purushothama Jaganadha Gopala Row Bahadur & Ors.(1) in the following words: "Mr. Seshagiri Ayyar on behalf of the appellant contended, first, that on a proper construction of the will the testator 's daughter was 'appointed ' by her father to raise a son for him in accordance with a practice which is now generally reputed to be obsolete.
We need not determine whether in any event the language of the will could be made to bear this construction; it clearly could be so construed only if there were in existence a living custom to which the words can be referred.
It is not such language as could be interpreted as indicating the testator 's intention to revive a dead custom, or create a new kind of heir for himself, unknown to the law of the present day, supposing him to have the power to do either of those things." In Nagindas Bhagwandas vs Bachoo Hurkissaondas(2) while rejecting the contention that the position of an adopted son in the family of the adoptive father was not that of a coparcener, the Privy Council observed: "It was endeavoured to establish that proposition by reference to the place which was assigned by Manu and other early authorities to the twelve then possible sons of a Hindu.
As to this contention it is sufficient to say that, whatever may have been the position and rights between themselves of such twelve sons in very remote times, all of those twelve sons, except the legitimately born and the adopted, are long since obsolete." A Division Bench of the Patna High Court in Babui Rita Kuer vs Puran Mal(3) while holding that defendant No. 2 in that case who was alleged to have been appointed as putrika by her father had not in fact been so appointed, observed (but without actually deciding): "However, the case of Thakoor Jeebnath Singh vs Court of Wards (1874 75) 2 I.A. 163, a Privy Council case, is important in this connexion.
The whole argument addressed to us is based 35 upon the effect of this custom of adoption of a daughter as putrika.
Now the Privy Council have laid it down that all Hindu text writers unanimously concur in holding the appointment of a daughter as a son to raise up issue to a sonless father is now obsolete; and no recent authority can be found within modern times where the custom has received judicial sanction.
In the Privy Council case referred to above a grave doubt is thrown upon the validity of such a custom, and it is there distinctly stated that if this custom is ever to be revived, it can only be on the clearest and most conclusive evidence.
To a like effect is the case of Sri Rajah Venkata Narasimha Appa Row Bahadur vs Sri Raja Suraneni Venkata Purushothama Jaganadha Gopala Rao Bahadur , where the custom alleged is considered not to be a living custom.
Mr. Mayne says at p. 93, Edn. 8, of his treatise on Hindu Law that the usage had become obsolete from time immemorial, and was so decided by the Civil Courts.
However, if this custom or usage is relied on in any given case it must be conclusively and undeniably proved.
I should be slow indeed to hold, if this obsolete custom can be established, that all the duties and obligations imposed on a Hindu son to discharge the debts of his father under Mitakshara Law would apply or attach to a daughter appointed as a putrika to raise issue to a sonless father the attention of the High Court.
The above case is from the State of Bihar itself.
If the practice of appointment of a putrika was in vogue, it would not have missed the attention of the High Court It is true that some observations made in Lal Tribhawan Nath Singh vs Deputy Commissioner, Fyzabad & Ors.(1) support the theory that the institution of putrika putra was in vogue even now.
Two of the questions involved in that case were whether Sir Pratap Narain Singh was the Putrika putra of Sir Man Singh who was the former holder of an impartible estate, known as taluka Ajudhia and whether the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable.
Stuart, A.J.C. who delivered the leading judgment in that case with whom Kanhaiya Lal, A.J.C. agreed held that Sri Pratap Narain Singh was not the putrika putra of Sir Man Singh although the practice of appointing a daughter bear a son to a Hindu was permitted by the Mitakshara and was enforceable.
It is seen that the above case had a history.
Maharaja Pratap Narain Singh himself had earlier instituted a suit which ultimately ended up in an appeal before the Privy Council in Maharajah 36 Pertab Narain Singh vs Maharanee Sudhao Kooer(1).
In that case, his plea was that he (who was also known as Dadwa Sahib) was the son of a daughter of Maharajah Man Singh; that he had been treated by Maharajah Man Singh 'in all respects as his own son ' within the meaning of clause 4 of section 22 of Act I of 1869; that a will made by Maharajah Man Singh on April 22, 1864 had been revoked orally on a subsequent date and that he had become entitled to the estate of Maharajah Man Singh.
The Privy Council held that the will had been revoked and Maharajah had died intestate and that Maharajah Pratap Singh was the person who under clause 4 of section 22 of Act I of 1869 was entitled to succeed to the taluk, and that he had made out his claim to a declaratory decree to that effect.
The Privy Council further held that the declaration was limited to the taluk and what passed with it but it did not affect the succession to the personal property or property not properly the parcel of the talukdaree estate which was governed by the ordinary law of succession.
It is significant that no claim had been preferred by Maharaja Pratap Narain Singh on the ground that he was a putrika putra of Maharaja of Man Singh.
He merely claimed that he was a statutory heir under clause 4 of section 22 of Act I of 1869 which was passed at the request of Talukdars including Maharajah Man Singh as can be seen from the decision of the Privy Council in Maharajah Pertab Narain Singh 's case (supra) which observed thus: "So matters stood when the Maharajah, as one of the leading members of the British India Association of Talukdars, went down to Calcutta in order to take part in the discussions and negotiations which resulted in the passing of Act I of 1869.
This must have been in the latter half of 1868.
Imtiaz Ali, the vakil concerned in the drafting and preparation of this Act on the part of the talukdars, has sworn that clause 4 of the 22nd section originated with the Maharajah; that it was opposed by some of the talukdars, but finally approved of by the Select Committee of the Governor General 's Legislative Council on the bill and passed into law.
He also says that he was told by the Maharajah that his object in pressing this clause was to provide for the Dadwa Sahib." (NOTE : 'Maharajah ' referred to above is Maharajah Man Singh and 'Dadwa Sahib ' is Maharajah Pratap Narain Singh).
If the practice of appointing a daughter to bear a son was in vogue then Maharajah Man Singh need not have taken the trouble to 37 request the British Government to get Act I of 1869 passed and if Maharajah Pratap Narain Singh was a putrika putra, he would not have refrained from putting forward that case.
Moreover the Privy Council also clarified the object of introducing clause 4 of section 22 of Act I of 1869 thus: "Their Lordships are disposed to think that the clause must be construed irrespectively of the spiritual and legal consequences of an adoption under the Hindu Law.
They apprehended that a Hindu grandfather could not, in the ordinary and proper sense of the term adopt his grandson as a son.
Nor do they suppose that, in passing the clause in question, the Legislature intended to point to the practice (almost, if not wholly, obsolete) of constituting, in the person of a daughter 's son, a "putrika putra", or son of an appointed daughter.
Such an act, if it can now be done, would be strong evidence of an intention to bring the grandson within the 4th clause, but is not therefore essential in order to do so.
Moreover, it is to be observed that the 4th, like every other clause in the 22nd section, applied to all the talukdars whose names are included in the second or third of the lists prepared under the Act, whether they are Hindus, Mahommedans, or of any other religion; and it is not until all the heirs defined by the ten first clauses are exhausted that, under the 11th clause, the person entitled to succeed becomes determinable by the law of his religion and tribe." Triloki Nath who failed before the Privy Council thereafter filed a review petition before it.
That petition was dismissed in Pertab Narain Singh vs Subhao Kooer(1) but he was permitted if he so desired to reopen by suit in India the question whether he had been properly represented in the previous litigation in the Indian Courts.
Accordingly a suit was filed in 1879.
That ultimately was dismissed by the Privy Council in Perturbarain Singh vs Trilokinath Singh(2) holding that the previous proceedings were binding on Trilokinath Singh.
Another suit which had been filed in the meanwhile in the year 1882 for possession of the estate by Trilokinath Singh was also dismissed finally by the Privy Council in Triloki Nath Singh vs Pertab Narain Singh(3) with the following observations: "Their Lordships, therefore, merely declared Pratap Narain Singh 's title to the taluks and whatever descended under Act I of 38 1869.
As to other property which was not included in that Act, Pratap Narain would not have been the heir to the Maharaja during the lifetime of the widow.
She would have taken the widow 's estate in all property except that which was governed by Act 1 of 1869.
" Thus ended the first series of litigation.
Now reverting to the case of Lal Tribhawan Nath Singh (supra) it should be stated that the suit out of which the said appeal arose was instituted after the death of Maharaja Pratap Narain Singh in 1906 by Tribhawan Nath Singh, grandson of Ramadhin, the eldest brother of Maharaja Man Singh in the year 1915 for a declaration that he was entitled to the estate as the heir of Maharaja Pratap Narain Singh under clause 11 of section 22 of Act I of 1869 which provided that on the failure of persons referred to in the first ten clauses, the ordinary heirs under personal law of the last holder of the taluk was entitled to succeed.
He pleaded that the widows of Maharaja Pratap Narain Singh were disentitled to the estate on the ground of unchastity and that he was the nearest heir living at that time.
The above case was filed on the assumption that Maharaja Pratap Singh was the putrika putra of Maharaja Man Singh and hence the plaintiff being an agnate of Maharaja Man Singh was entitled to succeed.
(Note: The claim was almost similar to the claim in these appeals).
The defendants in that suit denied all allegations of the plaintiff set up in the case and pleaded that one Dukh Haran Nath Singh had been adopted by one of the widows of Maharaja Pratap Narain Singh and that even if they were not entitled to the estate, the estate had to go to the family of Narsingh Narain Singh i.e. the natural family of Maharaja Pratap Narain Singh.
The trial court dismissed the suit.
In the appeal, the oudh Judicial Commissioner 's Court after specifically recording a finding that Maharaja Pratap Narain Singh was not the putrika putra of Maharaja Man Singh held that the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable.
Reliance is now placed before us on the above decision of the Oudh Court to establish that even now it is possible to have a son in the putrika putra form.
We have carefully read the two judgments of the two Additional Judicial Commissioners, Stuart and Kanhaiya Lal.
We feel that the question whether the practice of taking a son in putrika putra form was in vogue at the relevant time has not been considered in detail in the two judgments.
The approach to this question appears to be bit casual even though the judgments on other material issues appear to be quite sound.
Since they had held that no ceremony constituting the mother of Maharaja Pratap Narain Singh 39 had been performed, they might not have gone into the question of law in depth.
They just proceeded on the basis of some ancient texts including the Mitakshara without devoting attention to the practice having become obsolete.
All that Kanhaiya Lal, A.J.C. says on the above question at page 259 is "The case with which a son could be obtained by adoption has had the effect in course of time of rendering affiliation in the form of putrika putra more or less uncommon, but it has by no means become obsolete, for the Mitakshara gives the putrika putra the second or predominant position after the legitimate son and treats him in every respect as his substitute.
" The learned Additional Judicial Commissioner treats, we feel inappropriately, the institution of an illatom son in law in vogue in Malabar or Khanadamad recognised in Punjab as but relics of the institution of putrika putra.
We have dealt with elsewhere in this judgment some of the text books referred to by the learned Additional Judicial Commissioner.
It is to be noticed that the Oudh Court did not refer to any specific case where a claim based on the putrika putra title had been upheld.
The following remark made by Stuart, A.J.C. at page 230 is significant: "What reason then could he have had to be the only person in Oudh known to history who employed a practice by which he set aside his daughter to bear him a male heir?" We feel for the reasons given by us elsewhere in this judgment that the view expressed by the Oudh Court on the question of prevalence of putrika putra form of affiliation cannot be accepted as correct.
We shall now advert to some of the digests, lectures and treatises on 'Hindu Law '.
In Colebrooke 's Digest of Hindu Law (1874 Edition) Volume II, page 416, preface to the first edition of which was written in 1796, it was observed thus: "Among the twelve descriptions of some begotten in lawful wedlock and the rest, any others but the son of the body and the son given are forbidden in the Cali age.
Thus the Aditya purana, premising "the filiation of any but a son lawfully begotten or given in adoption by his parents", proceeds: "These parts of ancient law were abrogated by wise legislators, as the cases arose at the beginning of the Cali age. . .
In the like manner sufficient reasons may be assigned or the prohibition of appointing a daughter and so forth.
Again, by the term "powers" in the text of Vrihaspati is meant, not only devotion, but the consequence of it, namely, command over the senses.
40 Among these twelve descriptions of sons, we must only now admit the rules concerning a son given in adoption and one legally begotten.
The law concerning the rest has been inserted, to complete that part of the Book, as well as for the use of those who, not having seen such prohibitory texts, admit the filiation of other sons.
Thus, in the country of O 'dry (O 'risa), it is still the practice with some people to raise up issue on the wife of a brother." Sir F. W. Macnaghten who was a judge of the Supreme Court of Judicature at Fort William in Bengal writes in his book entitled Considerations on the Hindu Law, as it is current in Bengal ' (1824 Edition) at page 129: "Vrihaspati speaks "of the thirteen sons, who have been enumerated by Meru in their order".
And with reference to this we find in the Dattaca Chandrika, 'of these however, in the present lage, all are not recognized.
For a text recites, 'sons of many descriptions, who were made by the ancient Saints, cannot now be adopted by men, by reason of their deficiency of power; ' and against those, other than the son given, being substitutes, there is a prohibition in a passage of law, wherein, after having been premised "The adoption, as sons of these other than the legitimate son, and the son given," it is subjoined. 'This rule, sages pronounce to be avoided in the Kali age. ' "Upon the words, "in a passage of law" there is the following note; This passage, which is frequently cited, is attributed to the Aditya purana, and in its complete state is thus, 'The adoption, as sons of those other than the legitimate son, and son given; the procreation of issue by a brother in law; the assuming the state of an anchoret; these rules, sages pronounce to be avoided in the Kali age. '" Sir Thomas Strange, a former Chief Justice of Madras observes in his book on 'Hindu Law ' (published in 1830) Volume I at pages 74 75 as under: ". . whence the different sorts of sons enumerated by different authorities, all resolving themselves, with Menu, into twelve; that is, the legally begotten, and eleven subsidiary ones, reckoning the son of the appointed daughter (putrika putra) as the same in effect with the one legally begotten, and therefore not to be separately accounted; all formerly, in their turn and order, capable of succession, for the double purpose of obsequies, and of inheritance; six (reckoning, with Menu, the legally begotton, 41 and the son of the appointed daughter as one), deriving their pretensions from birth, six, from distinct adoptions; the first of the twelve, namely, the issue male of the body lawfully begotten, being the principal one of the whole as the son given in adoption was always the preferable one, among those obtainable expressly in this mode.
And now, these two, the son by birth, emphatically so called, (Aurasa), and (Dattaca) the son by adoption, meaning always the son given, are, generally speaking, the only subsisting ones, allowed to be capable of answering the purpose of sons, the rest, and all concerning them, being parts of ancient law, understood to have been abrogated, as the cases arose, at the beginning of the present, the Cali age.
" Sir Ernest John Trevelyan, a former Judge of the High Court of Calcutta in his book entitled "Hindu Law as administered in British India" (Third Edition) states at page 107 thus: "In ancient times the Hindu law recognised the following descriptions of sons as legitimate sons, viz. 1.
Aurasa,. . . 2.
Kshetraja,. . . 3.
Putrika putra, or son of an appointed daughter.
In ancient times a man could appoint his daughter to raise up issue to him.
The practice is obsolete.
Shastri Golap Chunder Sarkar, without giving any instances of its application, contends that there is no reason why it should not be now applied.
(to) 13. . . .
Of these the only sons that are now recognized by Hindu law are the Aurasa son and the Dattaka son.
According to the Mithila school a Kritrima son can be taken in adoption.
Adoption in this form is based upon, recent works, and is not referable to the ancient practice of taking Kritrima sons." Dr. Jullius Jolly in his Tagore Law lectures delivered in 1883 entitled "Outlines of an History of the Hindu Law of Partition, Inheritance and Adoption" states in his Lecture VII at page 144 thus: "The early history of the Law of Adoption may be traced in those enumerations of subsidiary or secondary sons, which occupy such a prominent place in the Indian Law books.
Nearly all these substitutes for real sons are now long since obsolete, but they are deserving of attention, not only from a historical, but from a practical point of view, because the rules regarding 42 them, being earlier in time, have in a measure formed the basis on which adoption in the proper sense of the term has been framed by the writers of the medieval and modern Indian Digests.
" That the enumeration of twelve or thirteen and even fifteen kinds of sons in ancient Smritis owes its origin to the tendency of ancient writers to deal with exhaustively all possible sons a man could conceive of irrespective of the fact that all of them might not have received legal sanction in the contemporary society is obvious from the inclusion in the list of fifteen sons of a son called Yatrakvachanotpadita (son produced in any other manner than the sons previously enumerated).
Referring to such a son, Dr. Jolly observes at page 146 thus: "Beginning with the son procreated anywhere, who comes in as the last of all, I may observe that the only other text in which this kind of son is referred to occurs in the Vishnusmriti; coming in, as it does, at the end of the whole list, the term Yatrakvachanotpadita seems to mean produced in any other manner than the sons previously enumerated," and may owe its origin to the systematizing spirit of a later age which wished to exhaust all sorts of sonship that might occur anyhow.
" After referring to the relevant texts of Apararka, Smriti Chandrika, Battaka Chandrika, Madhava, Visvesvara Bhatta, Vivada Chintamani, Dayabhaga, Dattaka Mimansa, Nirnaya Sindhu of Kamalakara Vyavahara Mayukha of Nilkantha and the Dharma Sindhu of Kasi Natha, Shri Rajkumar Sarvadhikari states in 'the Principles of the Hindu Law of Inheritance ' (Tagore Law Lectures, 1880) at pages 407 409 as follows: "This catena of texts will prove to you that the practice of affiliating different kinds of sons has become obsolete at the present day.
The only exception is the dattaka, or the son given by his parents.
It may be said that the Mitakshara, the Dayabhaga, and the Vivada Chintamani the leading authorities in the Benares, the Bengal, and the Mithila Schools seem still to countenance the practice.
That these schools do not recognise such a custom is proved beyond question by the other text writers of these schools, who have followed the lead of Vijnanesvara, Jimutavahana and Vachaspati Misra.
The authority of Visvesvara Bhatta, Madhava, Kamalakara, Nanda Pandita, and Jagannatha is quite enough to 43 show that the ancient practice of affiliating different kinds of sons has fallen into desuetude in this age.
The dictum of Jagannatha of the Bengal School establishes beyond question the fact that the practice of affiliating daughters in default of male issue, and the other forms of adoption enumerated by Manu, has become wholly obsolete in the present age.
The same may be said also of the Benares School, Visvesvara Bhatta, Madhava, Nirnaya Sindhu, and Dharma Sindhu give plain and unequivocal answers on this point "the practice is forbidden in the present age".
The authority of Visvesvara Bhatta is highly respected in the Mithila School.
The words of Madhava and Kamalakara carry universal weight.
The Dattaka Mimansa and the Dattaka Chandrika, the two standard treatises on adoption, are the reigning authorities in all the schools; and we have seen that both of them strongly denounce the practice.
The Smriti Chandrika and the Vyavahara Mayukha have forbidden the practice in the Dravira and the Maharashtra Schools.
It is plain, therefore, that the adopted son is the only secondary son recognised in the present age.
It may reasonably be asked, however, "how is it, if the practice of affiliating secondary sons be obsolete in the present age, that Vijnanesvara, Vachaspati Misra, and Jimutavahana devote such a large space in their treatises in discussing the rights of subsidiary sons?" The question may be answered in the words of Jagannatha: "They did so to complete that part of the book.
They did so simply to show the nature of the practice as it existed in former ages.
They merely gave a historical review of the subject, and did not enjoin the practice in the present age.
The fact is, the practice was still lingering in some parts of the country when the authors of the Mitakshara, Chintamani, and the Dayabhaga promulgated their laws.
The discussion of the rights of secondary sons, then was, in the language of Jagannatha, for the benefit of those who "not having seen the prohibitory texts still admitted the filiation of the subsidiary sons".
We can by no means admit that the practice universally prevailed at the time of Vijnanesvara, Vachaspati Misra, and Jimutavahana.
44 It was strongly denounced by Vrihaspati and others.
But it is not improbable that the custom was at its last gasp at the time of Vijnanesvara.
Aprarka, Devandara, and Madhava, coming after the author of the Mitakshara, abolished it altogether.
The custom might have partly revived in some parts of India at the time of Vachaspati Misra and Jimutavahana, and that might have been partly the reason of their discussing the nature of the custom in their works.
Apart from the question whether such a practice prevailed at the time of Vijnanesvara, Vachaspati Misra, and Jimutavahana, there is not the shadow of a doubt that the practice is obsolete at the present days.
Our authority for making this statement is the opinion of Devananda, Kamalakara, Nanda Pandita, Nilakantha and Jagannatha.
The last four authors are the most recent authorities on the subject, and their evidence as to the non existence of the custom at the present day cannot be questioned.
Their words authoritatively settle the point that the custom has been entirely abrogated in the present age." After quoting the text of Vrihaspati: Anekdhaah kritah puthra rikshibhiryeapratanah na shakyantedhuna karttoo shaktihinairidantanaih (Sons of many descriptions who were made by ancient saints cannot now be adopted by men, by reason of their deficiency of power).
Jogendra Smarta Siromani observes in his Commentary on the 'Hindu Law ' (1885 edition) at page 112 thus: "All the secondary sons, with the exception of the Dattaka, have not only become obsolete, but according to the Shastras, they are not sons at all in the present age.
" At page 148 in the same book, he further observes: "The Kritrima form of adoption prevails only in Mithila, Nanda Pandita recognizes it as legal notwithstanding the text of Adita Purana which declares that in the present age all the secondary sons have become obsolete with the exception of the Dattaka (see Mimansa, section II, para 65)." John D. Mayne, the author of 'Mayne 's Treatise on Hindu Law and Usage ' (11th Edition) states at page 114: "The truth is that there were only two kinds of sons, the aurasa and the adopted son.
The list of twelve or thirteen sons 45 was obviously due to the systematising habit of Sanskrit writers.
" In 'Mulla 's Principles of Hindu Law ' (14th Edition), it is stated at page 115 thus: "The daughter 's son occupies a peculiar position in the Hindu law.
He is a bhinna gotra sapinda or bandhu, but he comes in before parents and other more remote gotraja sapindas.
The reason is that according to the old practice it was competent to a Hindu who had no son to appoint a daughter to raise up issue to him.
Such a daughter, no doubt was the lawful wife of her husband, but her son, called putrika putra, becomes the son of her father.
Such a son was equal to an aurasa or legitimate son, and took his rank, according to several authorities, as the highest among the secondary sons.
Although the practice of appointing a daughter to raise up issue for her father became obsolete, the daughter 's son continued to occupy the place that was assigned to him in the order of inheritance and even now he takes a place practically next after the male issue, the widow and the daughters being simply interposed during their respective lives.
" The portion underlined in the above extract is quoted with approval by the Privy Council in Ghanta Chinna Ramasubbayya & Anr.
vs Moparthi Chenchuramayya Minor & Ors.
(supra).
N. R. Raghavachariar on 'Hindu Law Principles & Precedents ' (5th Edition) writes at page 78: "But with the settlement of the society to peace and order and the recognition and enforcement by some superior power of the mutual rights of the people, the idea of family relationship received a better refinement and definition, and all the sons excepting the Aurasa, the Dattaka and the son by a permanently and exclusively kept concubine (Dasiputra) have become obsolete.
But the Putrika putra form of adoption, perfectly natural and consistent with the feelings of affection which a Hindu has towards his daughter 's son, is still prevalent in Malabar, though in other parts of India it has become obsolete".
We find a detailed discussion of the aurasa and eleven or twelve kinds of subsidiary sons mentioned by ancient smriti writers in 'History of Dharmasastra ' (Vol.
III) by P. V. Kane at pages 643 to 661.
At page 657, the learned author writes 46 "In modern times the courts generally recognize only two kinds of sons, viz. aurasa and dattaka, the other kinds of sons being held to be long since obsolete.
Vide Nagindas vs Bachoo (43 I.A. 56 at p. 67).
But two more kinds of sons have been recognized in modern times in certain provinces only, viz. the kritrima in Mithila (modern Tirhoot) and the putrikaputra among the Nambudri brahmanas of Malabar, both of which will be dealt with below.
" At page 659 in the same book, Shri P. V. Kane says: "The putrikaputra is no longer recognised anywhere in India except among the Nambudri brahmanas of Malabar.
" All the above digests, lectures and treatises support the view that the practice of appointing a daughter as a putrika and of treating her son as putrika putra had become obsolete several centuries ago.
Whereas passages in the text books referred to above point out that the practice of appointing a daughter to raise an issue had become obsolete, we find the following passage in 'A Treatise on Hindu Law ' by Golapchandra Sarkar Sastri (Third Edition) at pages 124 125 striking a slightly different note: "Putrika putra: It is most natural that a person destitude of male issue, should desire to give a grandson by daughter the position of male issue.
The appointed daughter 's son is not regarded by Manu as a secondary son, but is deemed by him as a kind of real son.
This form of adoption appears to prevail in the North Western Provinces, and neighbouring district.
The Talukdars of Oudh submitted a petition to Government for recognising the appointed daughter 's son; and accordingly in the Oudh Estates Act "son of a daughter treated in all respects as one 's own son" is declared to be heir, in default of male issue.
This sort of affiliation appears to be most desirable and perfectly consistent with Hindu feelings and sentiments; there is no reason why it should not be held valid, when actually made by a Hindu.
The Dattaka Mimansa appears to have been written on purpose to invalidate the affiliation of a daughter 's son, for the benefit of agnate relations.
" We do not think that the above passage in any way supports the case of the appellants.
The author of the above book appears to make a special plea for reintroducing the institution of putrika putra.
He does not refer to any prevailing practice of affiliation of a putrika putra 47 in accordance with Hindu Sastras.
The reference to the passing of the Oudh Estates Act instead of supporting the case of the appellants weakens it.
We have dealt with this point in detail while dealing with the case of Lal Tribhawan Nath Singh (supra).
Sir E. J. Trevelyan also does not approve of this statement of Golapchandra Sarkar Sastri.
Jogendra Chunder Ghose in his book entitled 'The Principles of Hindu Law ' (1903 Edition) observes at pages 77 78: "It remains to record the changes in the Hindu Law brought about by the ingenuity of the Judges and lawyers of our modern Courts.
The position of the son, grandson, and great grandson remains unchanged.
The Putrika and the Putrika Putra are not recognized in spite of all the Rishis and all the Commentators.
The daughter takes after the widow according to the text of Yajnavalkya, but she is given a life interest against all authority, and for reasons invented by the Bengal lawyers.
The daughter 's sons come next, and they are declared to take per capita against all the Rishis and all the Commentators who have dealt with that question.
" From the above passage it is clear that the institutions of putrika and putrika putra have become obsolete.
But the tirade against Bengal lawyers is uncharitable.
They are not responsible for the change.
In fact it is Hindu society which brought about such a change.
We shall presently deal with the reasons which were responsible for such a change.
In the course of the arguments learned counsel for the appellants strongly contended that there was no justification to deny the right to a Hindu to take a son in the putrika putra form when it had been sanctioned by Yajnavalkya in his Smriti and by Vijnanesvara in his Commentary, the Mitakshara.
It was contended that merely because there were no instances where the said practice was followed in the immediate past, it could not be held that it had ceased to be a part of Hindu law.
It is seen from the several texts of commentaries extracted in the course of this judgment that the practice of taking a son in putrika putra form had become obsolete in modern times and there are good reasons in support of that view.
Before dealing with such reasons, we should keep in our view one of the statements of Vrihaspati which says thus: Dharmapi loka vikrikshatang na kuryata loka virudhang nacharet (Even if a rule is propounded by the Smritis, it should not be practised if it is rejected by the people or is opposed to their will).
A 48 rule of interpretation lays down that if there is a clear usage to the contrary, the Shastra has to yield.
If there is divergence of opinion amongst the Smritis, a Judge should consult the prevailing practice among the people while deciding a case.
There is another injunction of Vrihaspati which is very salutary: Kewalang shastramashritya nakartvyo hi nirnayah yukti hine vicharetu dharma hanih prajayate (The decision (in a case) should not be given by merely relying on the Sastras, for in the case of a decision devoid of reasoning loss of dharma results).
We shall now examine the reason for the abandonment of the practice of appointing a daughter to raise a son by the Hindu society.
Originally according to a vedic text cited by Lakshmidhara, a daughter was like a son, and a daughter 's son was like a son 's son.
Manu prescribed that he who had no son might make his daughter in the following manner an appointed daughter (putrika) saying to her husband 'The (male) child born of her, shall perform my funeral rites ' Aputronena vidihina sutang kurvit putrikam yadapatyang bhawedasyah tanmasyata swadhakarang According to Manu 'A son is even as one 's self, daughter is equal to a son, how can another (heir) take the estate, while (such daughter who is) one 's self, lives.
The daughter 's son shall take the whole estate of his maternal grand father who leaves no male issue.
Between a son 's son and the son of a daughter, there is no difference according to law.
But if, after a daughter has been appointed, a son be born (to her father) the division (of the inheritance) must in that (case) be equal, for there is no right of primogeniture for a woman".
Apastamba declared 'The daughter may take the inheritance of a sonless man '.
Yajnavalkya said 'The son of a putrika is equal to him (the son).
Narada stated 'in failure of a son, the daughter succeeds because she continues the lineage just like a son '.
From the above texts, it is obvious that in ancient times, the daughter and the daughter 's son were given preference over even the widow of a person in the matter of succession.
It is said that ancient 49 commentators like Medha thi thi and Haradatta had declared that the widow was no heir and not withstanding some texts in her favour, her right was not fully recognised till Yajnavalkya stated that the widow would succeed to the estate of a sonless person.
In Yajnavalkya Smriti, the order of succession to a male was indicated in the following order: (1) son, grandson, great grandson (2) putrika putra (3) other subsidiary or secondary sons, (4) widow and (5) daughter.
After daughter, it was not expressly stated that daughter 's son would succeed, but the parents were shown as the successors.
Vijnanesvara, however, interpreted the word (cha), which meant 'also ' in (Duhitaraschaiva) in the text of Yajnavalkya laying down the compact series of heirs as referring to daughter 's son.
The relevant text of Yajnavalkya has been quoted above.
Vijnaneswara interpreted the word 'cha ' referred to above as follows: Cha shavdadaduhitrabhave douhitre dhanbhaka yathah vishnuh aputhra pouthra santhane douhithra dhanmanpuyuh, poorvekshantu swadhaakare pouthra douhithraka mata" itee.
manurapi akrita wakrita wapi yang vindeta sadhrisha sutang pouthri maathamahasthen dadynat pindang haredhanmiti (By the import of the particle, 'also ', the daughter 's son succeeds to the estate on failure of daughters.
Thus Vishnu says "If a man leaves neither son, nor son 's son, nor wife, nor female issue, the daughter 's son shall take his wealth.
For in regard to the obsequies of the ancestors, daughter 's sons are considered as son 's son.
Manu likewise declares 'By that male child, whom a daughter whether formally appointed or not shall produce from a husband of an equal class, the maternal grandfather becomes the grandsire of a son 's son: let that son give the funeral oblation and possess the inheritance.) It may be noticed that but for the above interpretation of the word 'cha ' a daughter 's son would have come in as an heir after all agnates as the daughter 's son is only a cognate (Bandhu).
As a result of the above interpretation, the daughter 's son was promoted in rank next only to his maternal grand mother and his mother whose interest in the estate was only a limited one.
Viewed from this situation, the reason for abandoning the practice of appointing a daughter as putrika and treating her son as putrika putra becomes clear.
When a person had two or more daughters, the appointment of one of them would give her primacy over the wife and the other daughters (not so appointed) and her son (appointed daughter 's son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i.e. the other sons of the appointed daughter).
Whereas in the case of plurality of sons all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded.
It is 50 probably to prevent this kind of inequality which would arise among the daughters and daughter 's sons, the practice of appointing a single daughter as a putrika to raise an issue must have been abandoned when people were satisfied that their religious feelings were satisfied by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of the daughter 's sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders.
In Ghanta Chinna Ramasubbayya & Anr.
vs Moparthi Chenchuramayya, Minor & Ors.
(supra), the Privy Council after quoting with approval a passage in D.F. Mulla 's Book on Hindu Law (p. 40, 9th Edition) where it had been stated that although the practice of appointing daughter to raise up issue had become obsolete, the daughter 's son continued to occupy the place that was assigned to him in the order of inheritance observed thus: "The daughter 's son owes much to Vignaneshwara for his place in the scheme of the law of inheritance for, in the subjoined important text of Yajnavalkya, which forms the entire basis of the Mitakshara law of succession the daughter 's son is not expressly mentioned.
"The wife, and the daughters also, both parents, brothers likewise and their sons, cognates, a pupil and a fellow student: on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue.
This rule extends to all persons and classes," Colebrook, Mit.
ii section 1, vs 2.
By interpreting the particle "also" in the above text, Vignaneshwara gave the daughter 's son a place in the law of inheritance.
"By the import of particle 'also ' (sects. 1 and 2) the daughter 's son succeeds to the estate on failure of daughters.
Thus Vishnu says 'if a male leave neither son, nor son 's son nor (wife nor female) issue the daughter 's son shall take his wealth for in regard to obsequies daughter 's sons are considered as son 's sons. '", Colebrook, Mit.
ii, section 2, vs 6.
It is interesting to note the remark of Mandlik on the above interpretation by Vignaneshwara.
He says: "After the word daughter 's son in the above text occurs the particle (Chaiva) 'also ', to give some sense to which Vignaneshwara introduces here, the daughter 's son in conformity with a text of Vishnu, 'the wealth of him ' who has neither sons nor grandsons goes to daughter 's son, for . . '," Compare Manu ch.
IX; vs 136.
(Mandlik 's translation, p. 221).
By the above ingenious exposition, the famous compiler of the Mitakshara shaped the law into conformity with the needs of the day without appearing to make any change and 51 thus gave the daughter 's son his present place in the law of inheritance".
Dr. Nares Chandra Sen Gupta in his Tagore Law Lectures, 1950 on 'Evolution of Ancient Indian Law ' also subscribes to the view that the institutions of putrika and putrika putra had become obsolete several centuries ago and observes at pages 146 148 thus: "In later Smritis, the Putrika has lost all her importance.
For already the daughter as such is mentioned by them as heir, irrespective of her being a Putrika, after the sons and the widow.
Manu too, while he begins by giving the formula by which a girl could be made a Putrika, in the immediately following slokas, says that a daughter and a daughter 's son as such inherit to a sonless person.
In Yajnavalkya the Putrika is barely mentioned, but the inheritance of the daughter after the widow is well settled.
Obsolesence of Putrika Now if a daughter and her son inherit as such and if every daughter 's son, and not merely the Putrika 's son inherits and, as in Baudhayana, offers oblations to the maternal grand father as such, all practical utility of Putrika disappears, and the institution naturally ceases to exist.
The obsolescence of this custom in the time of Manu and Visnu and others appears from the absence of further details about this institution in any of these Smritis.
Manu, indeed, true to its character as an encyclopedaeic digest of all texts gives us several texts relating to the Putrika, which belong to different strata of the history of law.
It is singular, however, that in his enumeration of the twelve kinds of secondary sons (IX, 159,160) he omits any reference to the Putrika or her son.
In another place (IX, 123 et seq.) however he deals with the Putrika 's son, but his treatment of the subject is mixed up with that of the daughter 's son generally.
As already pointed out, he lays down the law that a Putrika is made by a contract at the time of marriage (IX, 127), but, immediately after that, he follows with a text laying down that a daughter 's son as such inherits to a sonless person and offers pindas both to the father and the maternal grand father (IX, 132).
This he emphasizes by saying that the son 's son and the daughter 's son (not Putrika 's son alone) are equal in all respects (IX, 133, 136, 139).
In IX, 140 he lays down the order in which the Putrika 's son offers pindas to his maternal ancestors, while in IX, 135 he says that on the Putrika dying sonless, her husband inherits to her, thus indicating 52 that a true husband wife relation for spiritual and legal purposes now exists between her and her husband.
If we remember that the present text of the Manusamhita was essentially a compilation of all the texts of law which were current at the date of compilation in the name of Manu and that accordingly many texts are incorporated in it which had long become obsolete at that date, we shall be able to assess these texts at their proper value.
It will then be seen that these texts, so far as the Putrika 's son goes, do not lay down anything which was not already laid down by Gautama, Vasistha and Baudhayana.
The other texts, however, which give to the son of the daughter "akrita va krita va 'pi" "whether appointed or not" the same status as a Putrika 's son, belong to a later stratum already indicated in Vishnu.
These texts practically nullify the provisions about Putrika putra who had evidently ceased to be an institution of any practical utility, so much so that he finds no place in Manu 's enumeration of the twelve secondary sons.
Later Smritis, beyond occasionally mentioning the Putrikaputra among the twelve kinds of sons do not speak of them at all.
The zeal upon the obsolescence of the Putrika along with the various other kinds of secondary sons, except the Dattaka, was set by the text of the Adityapurana which gives an index expurgatorius of laws forbidden in the Kali Age and mentions among others the recognition of sons other than Aurasa and Dattaka.
This text, as the Smritichandrika, Parasara, Madhava and others observe, makes the institution of Putrika void in the Kali Age.
From the historical point of view we can only look upon this as a record of the contemporary fact, that this practice had gone out of vogue.
" We are broadly in agreement with the following passage occurring in Mayne 's Hindu Law (1953 Edition) at pages 181 182 which while dealing with the reason for putrika putra losing importance and the emergence of the adopted son as the only other son recognised by modern law states: "Apart from the exceptional kshetraja son, the prominence of the putrika putra or the son of an appointed daughter is an indication of the prevailing usage which was all in his favour.
His equality in status with the aurasa son both for spiritual and temporal purposes was established from the earliest times and he had to offer pindas both to his father and to his maternal grandfather and he took the estate of his own father if he left no other son.
In many respects therefore, he was like the son of two fathers and 53 it must have been increasingly felt that his father should not be deprived of the continuance of his own line.
The son of the appointed daughter, in offering pindas to his mother, had to recite the gotra of his maternal grandfather, as in the putrikakarana marriage the gift of the girl was not complete.
For religious purpose, this anomalous position of a son of two fathers must have been found to be unsatisfactory and, as a consequence, there was the repeated injunction not to marry brotherless maidens, which would make it difficult to secure suitable bridegrooms if the institution of putrikaputra was insisted upon.
There was also the injustice to his uterine brothers who were excluded by their appointed brother from the enjoyment of their maternal grandfather 's property.
Besides, the daughters other than the appointed daughter appear to have come into their own by the time of the Arthasastra of Kautilya.
This must have led to the gradual recognition as heirs to the maternal grandfather of sons of daughters without any appointment, while at the same time the putrikaputra 's duty to offer pinda to the maternal ancestors was imposed also on the daughter 's son.
But as the daughter 's son was only a bhinnagotra sapinda, it became necessary that an adoption of a son should be made whenever a continuation of the direct line was desired either for spiritual or temporal purposes.
All these reasons must have powerfully operated to bring the adopted son into a new prominence.
Accordingly, Manu provided for the identity of the adopted son with the family into which he was adopted.
" Now that the practice of appointment of a daughter as putrika has become obsolete, all daughters and their sons stand in the same position.
This perhaps is the reason as to why such practice was given up.
It was in the alternative contended that when once it was established that at the time of the ancient Smritis, a Hindu had the right to appoint a daughter for the purpose of raising a son for him that right would continue to be in existence until it was taken away by a competent legislature a law making body as we understand today.
It is also argued that the theory of a practice once recognized by law becoming obsolete was unknown.
In support of the above submission, strong reliance was placed on the decision of the High Court of Madras in Pudiava Nadar vs Pavanasa Nadar & Ors.(1) In that case, the question before the High Court was whether the rule of Hindu law which excluded a congenitally blind person from inheritance had 54 become obsolete or not.
The case was referred to a Full Bench as there was an earlier ruling of that Court in Surayya vs Subbamma(1) which had taken the view that the said rule had become obsolete and doubts had been entertained about the correctness of that view.
In Surayya 's case (supra) Sadasiva Ayyar, J. observed: "I need not say that a rule becomes obsolete when the reason of the rule disappears through change of circumstances and environments in the society which was governed by that rule", while Napier, J. who agreed with him said that owing to improved methods of education there was no reason why such a disqualification should still continue and that it was open to the Court to enunciate that rule by declaring it to be obsolete.
Schwabe, C.J. who presided over the Full Bench which decided Pudiava Nadar 's case (supra) after observing: "The next question is whether, assuming a blind man 's exclusion to have been the law at the date of the Mitakshara, it has since become obsolete.
This, in my judgment, is a question of fact.
A law does not cease to be operative because it is out of keeping with the times.
A law does not become obsolete because it is an anachronism or because it is antiquated or because the reason why it originally became the law, would be no reason for the introduction of such law at the present time.
" proceeded to state "In considering whether the custom has become obsolete in the sense of its having ceased to exist, the fact that it is an anachronism may be a proper matter to be taken into consideration, if there were evidence both ways, in weighing that evidence but otherwise it is of no importance.
In this case, in my judgment, the evidence is all in favour of the custom having continued.
There is no oral evidence before the Court and no statement of any text writer or any judgment to which our attention has been called that this custom has become obsolete in the sense of its having been discontinued.
" Oldfield, J. agreed with the Chief Justice.
Courts Trotter, J., the third Judge delivered a separate but concurring judgment in which he observed thus: "To my mind, before allowing a mandate such as I conceive this to be, to be disregarded, it must either be proved by evidence to be actually disregarded in practice at the present time and as I have already said there is no such evidence in this case or it must be shown by an examination of the smritis and commentaries 55 to have been obsolete at the time they were written, and that the authors thereof merely repeated parrot like the words of Manu and the Mitakshara as a maxim dignified by antiquity but not corresponding to the practice obtaining at the time either of the Mitakshara or of their own compilations.
If it could be shown that commentators earlier than the Mitakshara had used language meaning or implying that the rule in this respect was obsolete, that might be a legitimate ground for the conclusion that the Mitakshara was merely repeating the words of Manu without inquiring whether the rule survived in force when the Mitakshara was written.
If a commentator later than the Mitakshara used similar language, that might lead to a legitimate inference that, though in force at the date of the Mitakshara, the rule had subsequently become obsolete." Ultimately the Full Bench held that the rule which excluded a congenitally blind person from inheritance had not been shown to have become obsolete and that in the twentieth century any amendment to that rule could only be done by a legislature.
It is stated that the ratio of this decision has been dissented from in two subsequent decisions of the Madras High Court in Amritammal vs Valli Mayil Ammal(1) and in Kesava vs Govindan(2).
We are not concerned with the said subsequent opinions.
But the fact remains that both Schwabe, C.J. and Coutts Trotter, J. who decided the Pudiava Nadar 's case (supra) did not state that a rule of Hindu law could not become unenforceable on the ground that it had become obsolete.
The rule of desuetude or obsolescence has been applied by this Court while interpreting Hindu law texts.
In Shiromani & Ors.
vs Hem Kumar & Ors.(3) one of the questions which arose for consideration was whether the practice of allowing a larger share of property to the eldest son which was known as 'Jethansi ' or 'Jeshtbhagam ' had become obsolete and therefore unenforceable.
The claim of a party to such larger share was negatived by this Court by applying the principle that the rule though founded in the Sastras had become obsolete.
In doing so, this Court relied on a passage in the Mitakshara, which when rendered into English read thus: "Unequal division though found in the sastras (e.g. Manu IX, 105, 112, 116, 117, Yaj.
114) should not be practised because it has come to be condemned by (or has become hateful to) the people, since there is the prohibition (in Yaj.
I. 156) that an 56 action, though prescribed in the sastras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven.
For example, though Yaj.
I. 109 prescribes the offering of a big ox or a goat to a learned brahmana guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a cow 'one should sacrifice a barren cow called anubandhya for Mitra and Varuna ', still it is not done because people condemn it.
And it has been said "just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after giving a special share (to the eldest son) does not now exist".
There is another instance where an ancient rule regarding a form of marriage has been held to have become obsolete by courts.
Gandhava form of marriage had been permitted and recognised in ancient times.
Apart from Manu and some other Smritis recognising it, we have the following sloka in Kalidasa 's Abhijnana Sakuntalam: Gandhaverven vivahen bahwayo rajarshi kanyakah shruyante parirnitashtah pithrivischabhinanditah (Many daughters of royal sages are heard to have been married by the ceremony called Gandharva, and (even) their fathers have approved them).
But in Bhaoni vs Maharaj Singh(1) and Lalit Mohan vs Shyamapada Das(2) it was held that the Gandharva form of marriage could not be recognized as valid marriage as it had become obsolete.
While interpreting the ancient texts of Smritis and Commentaries on Hindu Dharmasastra, we should bear in mind the dynamic role played by learned commentators who were like Roman Juris Consults.
The commentators tried to interpret the texts so as to bring them in conformity with the prevailing conditions in the contemporary society.
That such was the role of a commentator is clear even from the Mitakshara itself at least in two places first, on the point of allotment of a larger share at a partition to the eldest son which is discussed above and secondly on the question of right of inheritance of all agnates.
The second point is elucidated by the Privy Council 57 in the following passage in Atmaram Abhimanji vs Bajirao Janrao & Ors.(1) "It was however, recognized in course of time that the rule enunciated in the ancient texts, giving the right of inheritance to all agnates, however remote, and placing the cognates after them, was not in conformity with the feelings of the people; and Vijnaneswara, when writing his commentary Mitakshara on the Smriti of Yajnavalkya, probably found that a usage had grown up restricting the samanodaka relationships to the fourteenth degree.
He accordingly refrained from endorsing the all embracing rule of Yajnavalkya, and while mentioning it in the verse dealing with the subject, he gave prominence to the restricted scope of the word, and supported it by citing Vrihad Manu.
It must be remembered that the commentators, while professing to interpret the law as laid down in the Smritis, introduced changes in order to bring it into harmony with the usage followed by the people governed by the law; and that it is the opinion of the commentators which prevails in the provinces where their authority is recognized.
As observed by this Board in Collector of Madura vs Moottoo Ramalinga Shathupathy (1868) 12 Moo.
I.A. 397, 436, the duty of a judge "is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage.
For under the Hindoo system of law, clear proof of usage will outweigh the written text of law." Indeed, the Mitakshara "subordinates in more than one place the language of texts to custom and approved usage": Bhyah Ram Singh vs Bhyah Ugur Singh (1870)13 Moo.
I.A. 373, 390.
It is, therefore, clear that in the event of a conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted.
" The importance of the role of the commentators is explained by P.B. Gajendragadkar, J. (as he then was) in his article entitled "The Historical Background and Theoretic basis of Hindu Law ' in the 'Cultural Heritage of India ' (Vol. II) at page 427 published by the Ramakrishna Mission Institute of Culture thus: "In due course of time, when the distance between the letter of the Smritis and the prevailing customs threatened to get wider, commentators appeared on the scene, and by adopting ingenious interpretations of the same ancient texts, they achieved 58 the laudable object of bringing the provisions of the law into line with popular usages and customs.
The part played by Vijnanesvara in this connection deserves special mention.
The fiction of interpretation is seen in the three systems of jurisprudence known to us, the Roman, the English, and the Hindu system.
But as Mr. Sankararama Sastri points out, there is an interesting distinction among the three systems on this point.
Whereas the authority of the English case law is derived from the Bench, that of the Roman Responsa Prudentium and the Sanskrit commentary is derived from the Bar.
While in England the development of law is left entirely to the exigencies of disputes actually arising for adjudication, in India and at Rome, it was possible for the jurist to evolve and homogeneous body of Laws without reference to actually contested cases.
In this connection, it may be interesting to refer to the observations of Bentham that a legal fiction is a "willful falsehood having for its object the stealing of legislative power by and for hands which could not and durst not openly claim it and but for the delusion thus produced could not exercise it.
Nevertheless, the legal fiction of interpretation has played a very progressive part in the development of Hindu Law.
It is because this process was arrested during the British rule in this country that Hindu Law came to be fossilized, as judges relied mainly on the commentators without taking into account the changing customs and usages in the Hindu community.
" It was next contended by the learned counsel for the appellants that the rule against the appointment of a daughter by a Hindu to beget an issue for himself in Kali age enunciated by Saunaka and others should be treated as only directory and if any person appointed a daughter for that purpose in contravention of that rule still her son would become putrika putra of the person so appointing, with all the privileges of a putrika putra.
In support of the above contention, reliance was placed on the decision of the Privy Council in Sri Balusu Gurulingaswami vs Sri Balusu Ramalakshmamma & Ors.(1) in which it had been held that the adoption of an only son though prohibited, having taken place in fact was not null and void under Hindu law.
In that case, the Privy Council was faced with divergent opinions of the Indian High Courts on the interpretation of the relevant texts and was also probably moved by the creation of a number of titles which had been done on the basis of the opinions of some High Courts which had taken the view that the textual prohibition was only directory and not mandatory by applying a rule of interpretation expound 59 ed by Jamini, the author of 'Purva Mimansa ' that all texts, supported by the assigning of a reason were to be deemed not as vidhi but as arthavada or recommendatory.
The Privy Council had to reconcile in that case a number of inconsistent commentaries and judicial decisions.
Ultimately it upheld the adoption with the following observations which were made with a lot of reservation: "But what says authority? Private commentators are at variance with one another; judicial tribunals are at variance with one another; and it has come to this, that in one of the five great divisions of India the practice is established as a legal custom, and of the four High Courts which preside over the other four great divisions, two adopt one of the constructions and two the other.
So far as mere official authority goes there is as much in favour of the law of free choice as of the law of restriction.
The final judicial authority rests with the Queen in Council.
In advising Her Majesty their Lordships have to weigh the several judicial ulterances.
They find three leading ones in favour of the restrictive construction.
The earliest of them (in Bengal, 1868) is grounded on a palpably unsound principle, and loses its weight.
The second in time (Bombay, 1875) is grounded in part on the first, and to that extent shares its infirmity, and in part on texts of the Mitakshara, which are found to be misleading.
So that it, too, loses its weight.
The third (Bengal, 1878) is grounded partly on the first, and to that extent shares its infirmity; but it rests in great measure on more solid ground, namely, an examination of commentators and of decided cases.
It fails, however, to meet the difficulty of distinguishing between the injunction not to adopt an only son and other prohibitive injunctions concerning adoptions which are received as only recommendatory; the only discoverable grounds of distinction being the texts of the Mitakshara, which are misleading, and the greater amount of religious peril incurred by parting with an only son, which is a very uncertain and unsafe subject of comparison.
The judicial reasoning, then, in favour of the restrictive construction is far from convincing.
That the earliest Madras decision rested in part on a misapprehension of previous authority has been pointed out; and the Madras reports do not supply and close examination of the old texts, or any additional strength to the reasoning on them.
The Allahabad Courts have bestowed the greatest care on the examination of those texts, and the main lines of their arguments, not necessarily all the by ways of them, command their Lordships ' assent.
Upon their own examination of the Smritis, their Lordships find them by 60 no means equally balanced between the two constructions, but with a decided preponderance in favour of that which treats the disputed injunctions as only monitory and as leaving individual freedom of choice.
They find themselves able to say with as much confidence as is consistent with the consciousness that able and learned men think otherwise, that the High Courts of Allahabad and Madras have rightly interpreted the law and rightly decided the cases under appeal." Proceeding further, the Privy Council observed: "A Court of Justice, which only declares the law and does not make it, cannot, as the Legislature can, declare it with a reservation of titles acquired under a different view of it.
But their Lordships are placed in the position of being forced to differ with one set of Courts or the other.
And so far as the fear of disturbance can affect the question, if it can rightly affect it at all, it inclines in favour of the law which gives freedom of choice.
People may be disturbed at finding themselves deprived of a power which they believed themselves to possess and may want to use.
But they can hardly be disturbed at being told that they possess a power which they did not suspect and need not exercise unless they choose.
And so with titles.
If these appeals were allowed, every adoption made in the North West Provinces and in Madras under the views of the law as there laid down may be invalidated, and those cases must be numerous.
Whereas, in Bengal and Bombay the law now pronounced will only tend to invalidate those titles which have been acquired by the setting aside of completed adoptions of only sons, and such cases are probably very few.
Whether they demand statutory protection is a matter for the legislature, and not for their Lordships to consider.
It is a matter of some satisfaction to their Lordships that their interpretation of the law results in that course which causes the least amount of disturbance.
" In these appeals we are not faced with the situation with which the Privy Council was confronted.
No judicial decision of any court where a title had been upheld on the basis of putrika putra form of adoption has been brought to our notice.
If really such a practice was prevailing in recent centuries, persons with only daughters and no sons being not uncommon there should have arisen a number of cases.
We may remember that the Privy Council while deciding the case of Thakoor Jeebnath Singh (supra) observed that it was not necessary to decide the validity of the practice of appointment of a daughter to raise an issue 'although there certainly does not appear to have arisen 61 in modern times any instance in the courts where this custom has been considered '.
The only case where such a title was set but not established was the case of Lal Tribhuwan Nath Singh (supra) which has been dealt with separately by us.
Moreover we are not concerned in this case with the eligibility of a person being taken in adoption but the existence of the very institution of putrika putra itself.
When we have the predominant opinion of commentators supporting its non existence in the last few centuries extending to a period prior to the life time of Raja Dhrub Singh and there are good reasons for the Hindu society abandoning it, it would be inappropriate to resurrect the said practice by placing reliance on the above argument of the learned counsel, which in the circumstances appears to be highly tenuous.
At this stage, it should be stated that the High Court after considering in detail the evidence on record came to the conclusion that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu law and not by the Mithila School (See para 64 of the judgment of G.N. Prasad, J. and paras 229 and 230 of Madan Mohan Prasad, J.).
No ground was made out by the learned counsel for the appellants in these appeals to take a different view.
We hold that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and there is no occasion to apply principles of the Mithila School of Hindu law to the present case.
The question whether the family was governed by the Benaras School or by the Mithila School became relevant before the High Court as an attempt was made by the appellants herein relying on some commentaries which were considered as having local application to show that the practice of appointment of a daughter to raise an issue was in vogue amongst those governed by the Mithila School.
The said commentaries on which reliance was placed by the appellants have been dealt with in detail by Madan Mohan Prasad, J. in paragraphs 204 to 215 of his judgment.
Summarizing his views on them, Madan Mohan Prasad, J. Observes at paragraphs 214 and 215 of his judgment thus: "214.
It will thus appear that of all the other writers of Mithila School mentioned earlier, Pandit Amarit Nath Jha is the only one who has unequivocally said that during the Kali age these four kinds of sons, viz. Aurasa, Dattaka, Kritrima and Putrika putra, can be made and recognised.
It will, however, appear that he has taken no note of Saunaka and Adityapuran.
Even though he has referred to Nanda Pandit and discarded the Kshetraj on account of the interpretation by Nanda Pandit, he 62 has not referred to the prohibition of Saunaka and the acceptance thereof by Nanda Pandit and naturally, therefore, he has given no reasons for differing with Nanda Pandit and the several other commentators who have been discussed earlier and who accepted the prohibition of Saunaka so as to include the Putrika Putra. 215.
The learned author of this book is a product of the 19th century.
Whether the custom of Putrika Putra obtain in Mithila is a question which cannot be answered merely on the basis of the precept of this writer that even during the Kali age such sons should be made.
It may be recalled that the Privy Council in the case of Thakur Jeebnath said that for more than a century not a single case of adoption in the form of Putrika Putra was brought to their Lordship 's notice.
Barring the few cases of Narsing Narain, Thakur Jeebnath and Babui Rita Kuer no other case was brought to our notice even today where the custom of Putrika Putra had been alleged or decided.
Be that as it may, nobody has claimed any authority for Pandit Amrit Nath Jha, except with respect to the Mithila School.
His authority will, therefore, lend support, if at all, to the case of the plaintiffs of Title Suit No. 25 of 1958, only if they are abloe to establish that the Bettiah Raj family was governed by the Mithila School of Hindu law.
I may state here that the conclusion which I have arrived at on this question is that the evidence in this case does not prove that the aforesaid family was governed by the Mithila School; on the other hand it is clear that it was governed by the Benares School of Hindu Law and in view of that the authority of Pandit Amrit Nath Jha is of no avail to the plaintiffs.
" We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School.
On a consideration of the entire matter, we hold that throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra.
We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of Kerala.
We should also record that the High Court has taken the view on a careful analysis and consideration of the entire material before it that Raja Dhrub Singh had in fact not appointed his daughter as a putrika to beget a putrika putra for him.
Apart from the 63 evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G.N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G.N. Prasad, J, which reads thus: "73.
All these statements reveal a strange state of affairs.
Ambika (plaintiff No. 1) thought the plea with regard to the Kritrim form of adoption to be correct, but Kamleshwari (plaintiff No. 6) thought it to be incorrect.
Ambika had no knowledge of any plea of Dattak form of adoption having been set up on his behalf.
Kamleshwari not only characterised that plea to be wrong but even disclaimed to have any such plea having been taken on his behalf.
In other words, the plea of Dattak form of adoption was taken without the knowledge or authority of either of the two deposing plaintiffs, namely Ambika (D.W. 15) and Kamleshwari (D.W. 27), and it was evidently done at the initiative of the Karpardaz of the legal adviser of the plaintiffs of the title suit No. 25, who obviously could have no personal knowledge of the real facts, although, however, the plea of Dattak form of adoption was also given up at a later stage.
The multiplicity of the various pleas cannot be lost sight of while dealing with the surviving plea of Putrika Putra form of adoption, particularly when this also was not taken in the first instance.
It seems to me that the entire case of adoption put forward on behalf of the plaintiffs of Title Suit No. 25 is the product of imagination of their legal advisers, having little relation with true facts." After giving our anxious consideration to all aspects of the case, we hold that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete long before the life time of Raja Dhrub Singh and Raja Jugal Kishore Singh could not, therefore, in law be considered as putrika putra of Raja Dhrub Singh.
It follows that the appellants who claim the estate on the above basis cannot succeed.
In view of the foregoing, it is not necessary for us to go into the question whether the decisions of the Privy Council rendered prior to the abolition of its jurisdiction over India were binding on the Indian Courts, which is precisely the question formulated in the certificate issued by the High Court.
For the foregoing reasons, the appeals (Civil Appeals Nos. 114 119 of 1976) alongwith the Special Leave Petition therefore fail and are dismissed.
In the circumstances of the case, we absolve the appellants from the liability to pay costs in all the courts.
S.R. Appeals dismissed.
| IN-Abs | Raja Ugra Sen, who was governed by the Benaras School of Mitakshara law established "Bettiah Raj" in or about the middle of 17th century.
It was known as Riyasat of Sirkar Champaran consisting of four Perghunnas known as Majhwa, Simrown, Babra and Maihsi and an impartible estate.
After the death of his great grand son, Raja Dhrub Singh dying issueless in 1762, Raja Jugal Kishore Singh, son of Raja Dhrub Singh 's daughter Benga Babui, entered into possession of the estate of "Bettiah Raj".
The East India Company officers seized the estate from him and later allotted only the zamindari of Majhwa and Simrown, while those of Maihsi and Babra were allotted to Srikishen Singh and Abdhoot Singh.
The last male holder of Raja Jugal Kishore Singh was Maharaja Bahadur Narendra Kishore Singh who died issueless on March 26, 1893, leaving behind him two widows Maharani Sheo Ratna Kuer and Maharani Janki Kuer, who succeeded him one after the other.
During the lifetime of Maharani Sheo Ratna Kuer, two suits were filed claiming the estate but they were lost in all courts including the Privy Council.
In 1897, the management of the estate was taken over by the court of Wards Bihar and the Government of Uttar Pradesh in respect of the areas falling in these two States.
Maharani Janki Kuer died on November 27, 1954.
The State of Bihar, therefore, made an application before the Board of Revenue, Bihar, praying that the estate of Maharaja Narendra Singh which was held by late Maharani Janki Kuer as a limited owner but managed by the Court of Wards be handed over to the State of Bihar by virtue of the rule of escheat.
The Board of Revenue published a Notification calling upon interested parties to prefer the claim, if any, to the properties comprised in the estate.
Since there were several claimants taking inconsistent pleas, the Board of Revenue declined to release the estate in favour of any of the claimants and as per its order dated January 18, 1955 directed that the properties would be retained by the Court of Wards until the dispute as to its succession was determined by competent Civil Court.
The title suit having been lost.
The appellants have come up in appeals by certificate.
The State of Bihar which claimed title by the rule of escheat also preferred appeals.
Dismissing Civil Appeals Nos.
114 119 of 1976, the Court ^ HELD: (1) While interpreting the ancient texts of Smritis and commentaries on Hindu Dharmasastra, it should be borne in mind the dynamic role played by learned commentators who were like Roman Juris Consults.
The 2 commentators tried to interpret the texts so as to bring them in conformity with the prevailing conditions in the contemporary society.
That such was the role of a commentator is clear even from the Mitakshara itself at least in two places first, on the point of allotment of a larger share at a partition to the eldest son and secondly on the question of right of inheritance of all agnates.
[56F H] (2) Etymologically, the word 'putrika ' means a daughter (especially a daughter appointed to raise male issue to be adopted by a father who has no sons), and 'putrika putra ' means a daughter 's son who by agreement or adoption becomes the son of her father [20C D] A careful reading of the ancient texts Manu, Yajnavalkya, (Mitakshara) (Vijnanesvara) and Apararka (Aparaditya) Baudhayana Dharmasutra, Vishnu Dharmasastra, Vasishtha Dharmasutra, Parasara Madhava, Smriti Chandrika of Devannabhatta, Dattaka Chandrika and Dattaka Mimansa by Nanda Pandita leads to the inference that the institution of "Putrika Putra" had become obsolete and not recognised by Hindu society for several centuries prior to the time when Smriti Chandrika or Dattaka Chandrika were written and these two commentaries belong to a period far behind the life time of Raja Dhrub Singh [32B C] Further, absence of cases before courts within living memory in which a claim had been preferred on the basis of application in "Putrika Putra" form showed that the said practice had become obsolete.
[34A] Thakoor Jeebnath Singh vs The Court of Wards, (1875) 2 I.A. 163 (PC), quoted with approval.
Sri Raja Venkata Narasimha Appa Row Bahadur vs Sri Rajesh Sraneni Venkata Purushotama Jaganadha Gopala Row Bahadur & Ors., I.L.R. Babui Rita Kuer vs Puran Mal, A.I.R. 1916 Patna 8 approved.
Tribhawan Nath Singh vs Deputy Commissioner, Fyzabad & Ors,. , overruled.
(3) All digests, lectures and treatises support the view that the practice of appointing a daughter as a putrika and of treating her son as "putrika putra" had become obsolete several centuries ago.
And, the reason for the abandonment of the practice of appointing a daughter to raise a son by the Hindu society is clear from the following situation.
[46C, 49F] In ancient times, the daughter and daughter 's son were given preference over even the widow of a person in the matter of succession.
Ancient commentators like Madhathithi and Haradatta had declared that the widow was no heir and notwithstanding some texts in her favour, her right was not fully recognised till Yajnavalkya stated that the widow would succeed to the estate of a sonless person.
In Yajnavalkya Smriti, the order of succession to a male was indicated in the following order (1) son, grandson, great grandson, (2) putrika putra, (3) other subsidiary or secondary sons, (4) widow and (5) daughter.
It was not expressly stated that daughter 's son would succeed, but the parents were shown as the successors.
Vijnanesvara, however, interpreted the word "cha", which meant "also" in "Duhitaraschaiva" in the text of Yajnavalkya laying down the compact series of heirs as referring to daughter 's son.
But for this interpretation a daughter 's son would have come in as an heir after all agnates (gotrajas), as the daughter 's son is only a cognate (Bandhu).
As a result of this interpretation, the daughter 's son was promoted in rank next only to his maternal grand mother and his mother whose interest in the estate was only a limited one.
[48H, 49A C, E F] 3 When a person had two or more daughters, the appointment of one of them would give her primacy over the wife and the other daughters (not so appointed) and her son (appointed daughter 's son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i.e. the other sons of the appointed daughter).
Whereas in the case of plurality of sons all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded.
To prevent this kind of inequality which would arise among the daughters and daughter 's sons, the practice of appointing a single daughter as a putrika to raise an issue came to be abandoned in course of time when people were satisfied that their religious feelings were satisfied by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of the daughter 's sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders.
[49F H, 50A C] Ghanta Chinna Ramasubbayya & Anr.
vs Moparthi Chenchuramayya, 74 I.A. 162, followed.
(4) It is incorrect to suggest that the theory of "a practice once recognised by law becoming obsolete" was unknown and that it would continue to be in existence until it was taken away by a competent legislature.
The court can declare it to be so.
[53G] Shiromani & Ors.
vs Hem Kumar & Ors., [1968] 3 S.C.R. 639, applied.
(5) The contention that the rule against the appointment of a daughter by a Hindu to beget an issue for himself in Kali age enunciated by Saunaka and others should be treated as only directory and if any person appointed a daughter for that purpose in contravention of that rule still her son would become "putrika putra" of the person so appointing, with all the privileges of a putrika putra is highly tenuous.
Where there is predominant opinion of commentators supporting its non existence in the last few centuries extending to a period, in the instant case, prior to the life of Raja Dhrub Singh and there are good reasons for the Hindu Society abandoning it, it would be inappropriate to resurrect the practice.
[58E F, 61A C] Sri Balusu Gurulingaswami vs Sri Balusu Ramalakshmamma
|
: Special Leave Petition (Crl.) No. 2856 of 1979.
From the Judgment and Order dated 6 8 1979 of the Madhya Pradesh High Court in Crl.
Revision No. 392/76.
Sobhag Mal Jain and section K. Jain for the Petitioner.
C. section Chhazed, Miss Manisha Gupta and M. section Gupta for Respondents 1 5.
section K. Gambhir for the State.
The Order of the Court was delivered by KRISHNA IYER, J. `It is procedural rules ', as this appeal proves, `which infuse life into substantive rights, which activate them to make them effective '.
Here, before us, is what looks like a pedestrian quasi criminal litigation under section 133 Cr.
P.C., where the Ratlam Municipality the appellant challenges the sense and soundness of the High Court 's affirmation of the trial court 's order directing the construction of drainage facilities and the like, which has spiralled up to this Court.
The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of `standing ' of British Indian vintage.
If the centre of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered.
In that sense, the case before us between the Ratlam Municipality and the citizens of 100 a ward, is a path finder in the field of people 's involvement in the justicing process, sans which as Prof. Sikes points out,(1) the system may `crumble under the burden of its own insensitivity '.
The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis.
At issue is the coming of age of that branch of public law bearing on community actions and the court 's power to force public bodies under public duties to implement specific plans in response to public grievances.
The circumstances of the case are typical and overflow the particular municipality and the solutions to the key questions emerging from the matrix of facts are capable of universal application, especially in the Third World humanscape of silent subjection of groups of people to squalor and of callous public bodies habituated to deleterious inaction.
The Ratlam municipal town, like many Indian urban centres, is populous with human and sub human species, is punctuated with affluence and indigence in contrasting co existence, and keeps public sanitation a low priority item.
what with cesspools and filth menacing public health.
Ward No. 12, New Road, Ratlam town is an area where prosperity and poverty live as strange bedfellows.
The rich have bungalows and toilets, the poor live on pavements and litter the street with human excreta because they use roadsides as latrines in the absence of public facilities.
And the city fathers being too busy with other issues to bother about the human condition, cesspools and stinks, dirtied the place beyond endurance which made the well to do citizens protest, but the crying demand for basic sanitation and public drains fell on deaf ears.
Another contributory cause to the insufferable situation was the discharge from the Alcohol Plant of malodorous fluids into the public street.
In this lawless locale, mosquitoes found a stagnant stream of stench so hospitable to breeding and flourishing, with no municipal agent disturbing their stinging music at human expense.
The local denizens, driven by desperation, at long last, decided to use the law and call the bluff of the municipal body 's bovine indifference to its basic obligations under section 123 of the M. P. Municipalities Act, 1961 (the Act, for short).
That provision casts a mandate: 123.
Duties of Council. (1) In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force, it shall be the duty of a Council to 101 undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality, namely: XX XX XX (b) cleansing public streets, places and sewers, and all places, not being private property, which are open to the enjoyment of the public whether such places are vested in the Council or not; removing noxious vegetation, and abating all public nuisances: (c) disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish.
And yet the municipality was obvious to this obligation towards human well being and was directly guilty of breach of duty and public nuisance and active neglect.
The Sub Divisional Magistrate, Ratlam, was moved to take action under section 133 Cr.
P.C., to abate the nuisance by ordering the municipality to construct drain pipes with flow of water to wash the filth and stop the stench.
The Magistrate found the facts proved, made the direction sought and scared by the prospect of prosecution under section 188 I.P.C., for violation of the order under section 133 Cr.
P.C., the municipality rushed from court to court till, at last, years after, it reached this Court as the last refuge of lost causes.
Had the municipal council and its executive officers spent half this litigative zeal on cleaning up the street and constructing the drains by rousing the people 's sramdan resources and laying out the city 's limited financial resources, the people 's needs might have been largely met long ago.
But litigation with other 's funds is an intoxicant, while public service for common benefit is an inspiration; and, in a competition between the two, the former overpowers the latter.
Not where a militant people 's will takes over people 's welfare institutions, energises the common human numbers, canalises their community consciousness, forbids the offending factories from polluting the environment, forces the affluent to contribute wealth and the indigent their work and thus transforms the area into a healthy locality vibrant with popular participation and vigilance, not neglected ghettoes noisy with squabbles among the slimy slum dwellers nor with electoral 'sound and fury signifying nothing. ' The Magistrate, whose activist application of section 133 Cr.P.C., for the larger purpose of making the Ratlam municipal body to do its duty and abate the nuisance by affirmative action, has our appreciation.
He has summed up the concrete facts which may be usefully quoted in portions: "New Road, Ratlam, is a very important road and so many prosperous and educated persons are living on this Road.
On 102 the southern side of this Road some houses are situated and behind these houses and attached to the College boundary, the Municipality has constructed a road and this new Road touches the Government College and its boundary.
Just in between the said area a dirty Nala is flowing which is just in the middle of the main road i.e. New Road.
In this stream (nala) many a time dirty and filthy water of Alcohol Plant having chemical and obnoxious smell, is also released for which the people of that locality and general public have to face most obnoxious smell.
This Nala also produces filth which causes a bulk of mosquitoes breeding.
On this very southern side of the said road a few days back municipality has also constructed a drain but it has (?) constructed it completely but left the construction in between and in some of the parts the drain has not at all been constructed because of this the dirty water of half constructed drain and septic tank is flowing on the open land of applicants, where due to insanitation and due to non removing the obstructed earth the water is accumulated in the pits and it also creates dirt and bad smell and produces mosquitoes in large quantities.
This water also goes to nearby houses and causes harm to them.
For this very reason the applicants and the other people of that locality are unable to live and take rest in their respective houses.
This is also injurious to health".
There are more dimensions to the environmental pollution which the magistrate points out: "A large area of this locality is having slums where no facility of lavatories is supplied by the municipality.
Many such people live in these slums who relieve their lateral dirt on the bank of drain or on the adjacent land.
This way an open latrine is created by these people.
This creates heavy dirt and mosquitoes.
The drains constructed in other part of this Mohalla are also not proper it does not flow the water properly and it creates the water obnoxious.
The Malaria Department of the State of M.P. also pays no attention in this direction.
The non applicants have not managed the drains, Nallahs and Naliyan properly and due to incomplete construction the non applicants have left no outlet for the rainy water.
Owing to above reasons the water is accumulated on the main road, it passes through living houses, sometimes snakes and scorpions come out and this obstruct the people to pass through this road.
This also causes financial loss to the people of this area.
The road constructed by Nagarpalika is on a high level and due to this, this year more 103 water entered the houses of this locality and it caused this year more harm and loss to the houses also.
This way all works done by the non applicants i.e. construction of drain, canal and road come within the purview of public nuisance.
The non applicants have given no response to the difficulties of the applicants, and non applicants are careless in their duties towards the public, for which without any reason the applicants are facing the intolerable nuisance.
In this relation the people of this locality submitted their returns, notices and given their personal appearance also to the non applicants but the non applicants are shirking from their responsibilities and try to avoid their duty by showing other one responsible for the same, whereas all the non applicants are responsible for the public nuisance.
" Litigation is traumatic and so the local people asked first for municipal remedies failing which they moved for magisterial remedies: "At the last the applicants requested to remove all the nuisance stated in their main application and they also requested that under mentioned works must be done by the non applicants and for which suitable orders may be issued forthwith: 1.
The drains constructed by Municipality are mismanaged and incomplete, they should be managed and be completed and flow of water in the drains should be made so that the water may pass through the drain without obstruction.
The big pits and earthen drains which are situated near the College boundary and on the corners of the road where dirty water usually accumulates, they should be closed and the filth shall be removed therefrom.
The big 'Nala ' which is in between the road, should be managed and covered in this way that it must not create overflow in the rainy season.
The Malaria Department should be ordered to sprinkle D.D.T. and act in such a manner and use such means so that the mosquitoes may be eradicated completely from the said locality." The proceedings show the justness of the grievances and the indifference of the local body: "Both the parties heard.
The court was satisfied on the facts contained in their application dated 12 5 72 and granted conditional order against non applicants No. 1 and 2 u/s 133 of Cr.
P.C. (Old Code).
In this order all the nuisances were described (which were there in their main application) and the court directed to remove 104 all the nuisances within 15 days and if the non applicants have any objection or dissatisfaction against the order then they must file it on the next date of hearing in the court." XX XX XX "The applicants got examined the following witnesses in their evidence and after producing following documents they closed their evidence." XX XX XX "No evidence has been produced by the non applicants in spite of giving them so many opportunities.
Both the parties heard and I have also inspected the site." XX XX XX "The non applicant (Municipal Council) has sought six times to produce evidence but all in vain.
Likewise non applicant (Town Improvement Trust) has also produced no evidence.
" The Nallah comes into picture after the construction of road and bridge.
It has shown that Nallah is property of Nagarpalika according to Ex.p. 10.
Many applications were submitted to remove the nuisance but without result.
According to Sec.
32 to 43 of the Town Improvement Trust Act, it is shown, that it has only the provisions to make plans.
Many a time people tried to attract the attention of Municipal Council and the Town Improvement Trust but the non applicants always tried to throw the responsibility on one another shoulder.
XX XX XX It is submitted by non applicant (Municipality) that the said Nallah belongs to whom, it is still disputed i.e. whether it belongs to non applicant 1 or 2.
Shastri Colony is within the area of Town Improvement Trust.
The Nagarpalika (non applicant No. 1) is financially very weak.
But Municipal Council is not careless towards its duties.
Non applicant (Town Improvement Trust) argued that primary responsibility lies with the Municipal Council only.
There is no drainage system.
At the end of it all, the Court recorded: . . . after considering all the facts I come to this conclusion that the said dirty Nallah is in between the main road of Ratlam City.
This dirty Nallah affects the Mohalla of New 105 Road, Shastri Colony, Volga Talkies and it is just in the heart of the city.
This is the very important road and is between the Railway Station and the main city.
In these mohallas, cultured and educated people are living.
The Nallah which flows in between the New Road and Shastri Colony the water is not flowing rapidly and on many places there are deep pits in which the dirty water is accumulated.
The Nallah is also not straight that is also the reason of accumulation of dirty water.
The Nallah is not managed properly by the non applicants.
It is unable to gush the rainy water and due to this the adjoining areas always suffer from over flowing of the water and it causes the obstruction to the pedestrians.
XX XX XX It is also proved by the evidence given by the applicants that from time to time the Power Alcohol factory which is situated outside the premises of the Municipal Council and it flows its dirty and filthy water into the said Nallah, due to this also the obnoxious smell is spreading throughout the New Road or so it is the bounden duty of the Municipal Council and the Town Improvement Trust to do the needful in this respect.
XX XX XX The dirty water which flows from the lavatories and urinals of the residential houses have no outlet and due to this reason there are many pits on the southern side of the New Road and all the pits are full of dirty and stinking water.
So it is quite necessary to construct an outlet for the dirty water in the said locality.
In this area many a places have no drainage system and if there is any drain it has no proper flow and water never passes through the drain properly.
That causes the accumulation of water and by the time it becomes dirty and stink and then it produces mosquitoes there.
The Magistrate held in the end: Thus after perusing the evidence I come to this conclusion and after perusing the applications submitted by the persons residing on the New Road area from time to time to draw the attention of the non applicants to remove the nuisance, the non applicants have taken no steps whatsoever to remove all these public nuisances.
He issued the following order which was wrongly found unjustified by the Sessions Court, but rightly upheld by the High Court: 106 Therefore, for the health and convenience of the people residing in that particular area of all the nuisance must be removed and for that the following order is hereby passed: (1) The Town Improvement Trust with the help of Municipal Council must prepare a permanent plan to make the proper flow in the said Nallah which is flowing in between Shastri Colony and New Road.
Both the non applicants must prepare the plan within six months and they must take proper action to give it a concrete form.
(2) According to para 13 a few places are described which are either having the same drains and the other area is having no drain and due to this the water stinks there; so the Municipal Council and the Town Improvement Trust must construct the proper drainage system and within their own premises where there is no drain it must be constructed immediately and all this work should be completed within six months.
(3) The Municipal Council should construct drains from the jail to the bridge behind the southern side of the houses so that the water flowing from the septic tanks and the other water flowing outside the residential houses may be channellised and it may stop stinking and it should have a proper flow so that the water may go easily towards the main Nallah.
All these drains should be constructed completely within six months by the Municipal Council.
(4) The places where the pits are in existence the same should be covered with mud so that the water may not accumulate in those pits and it may not breed mosquitoes.
The Municipal Council must complete this work within two months.
A notice under Section 141 of the Criminal Procedure Code (Old Code) may be issued to the non applicants Nos. 1 and 2 so that all the works may be carried out within the stipulated period.
Case is hereby finalised.
Now that we have a hang of the case we may discuss the merits, legal and factual.
If the factual findings are good and we do not re evaluate them in the Supreme Court except in exceptional cases one wonders whether our municipal bodies are functional irrelevances, banes rather than booms and 'lawless ' by long neglect, not leaders of the people in local self government.
It may be a cynical obiter of pervasive veracity that municipal bodies minus the people and plus the bureaucrats are the bathetic vogue no better than when the British were here: 107 We proceed on the footing, as we indicated even when leave to appeal was sought, that the malignant facts of municipal callousness to public health and sanitation, held proved by the Magistrate, are true.
What are the legal pleas to absolve the municipality from the court 's directive under section 133 Cr.
P.C. ? That provision reads: section 133(1) whenever a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; XX XX XX such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order (i) to remove such obstruction or nuisance; or XX XX XX (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided.
why the order should not be made absolute.
So the guns of section 133 go into action wherever there is public nuisance.
The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here.
"All power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist.
"(i) Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise.
If the order is defied or ignored, section 188 I.P.C. comes into penal play: 108 188.
Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to obtain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction and if such disobedience causes or tends to cause danger to human life health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
There is no difficulty in locating who has the obligation to abate the public nuisance caused by absence of primary sanitary facilities.
Section 123, which is mandatory, (we repeat), reads: 123.
Duties of Council : (1) In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force, it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality, namely: (a). . . (b) cleansing public streets, places and sewers, and all places not being private property, which are open to the enjoyment of the public whether such places are vested in the Council or not; removing noxious vegetation, and abating all public nuisances; (c) disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish.
The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility.
Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under section 123 of the Act.
This 'alibi ' made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us.
The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis.
The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision.
Likewise, section 123 of the Act has no saving clause when the municipal council is penniless.
Otherwise, a profligate 109 statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self defence a self created bankruptcy or perverted expenditure budget.
That cannot be.
Section 133 Cr.
P.C. is categoric, although reads discretionary.
Judicial discretion when facts for its exercise are present, has a mandatory import.
Therefore, when the sub Divisional Magistrate, Ratlam, has, before him, information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he shall act.
Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts.
The Magistrate 's responsibility under section 133 Cr.
P.C. is to order removal of such nuisance within a time to be fixed in the order.
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding.
Failure to comply with the direction will be visited with a punishment contemplated by section 188 I.P.C. Therefore, the Municipal Commissioner or other executive authority bound by the order under section 133 Cr.
P.C. shall obey the direction because disobedience, if it causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the Section.
The offence is aggravated if the disobedience tends to cause danger to human health or safety.
The imperative tone of section 133 Cr.
P.C. read with the punitive temper of section 188 I.P.C. make the prohibitory act a mandatory duty.
Although these two Codes are of ancient vintage, the new social justice orientation imparted to them by the Constitution of India makes it a remedial weapon of versatile use.
Social justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under section 133 Cr.
In the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by article 38 of the Constitution.
This brings Indian public law, in its processual branch, in line with the statement of Prof. Kojima :(1) "the urgent need is to focus on the ordinary man one might say the little man. " "Access to Justice" by Cappelletti and B. Garth summarises the new change thus:(2) 110 "The recognition of this urgent need reflects a fundamental change in the concept of "procedural justice".
The new attitude to procedural justice reflects what Professor Adolf Homburger has called "a radical change in the hierarchy of values served by civil procedure"; the paramount concern is increasingly with "social justice," i.e., with finding procedures which are conducive to the pursuit and protection of the rights of ordinary people.
While the implications of this change are dramatic for instance, insofar as the role of the adjudicator is concerned it is worth emphasizing at the outset that the core values of the more traditional procedural justice must be retained.
"Access to justice" must encompass both forms of procedural justice." Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law.
Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature 's pressure, bashfulness becomes a luxury and dignity a difficult article A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.
Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies.
Similarly, providing drainage systems not pompous and attractive, but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence.
A bare study of the statutory provisions makes this position clear.
In this view, the Magistrate 's approach appears to be impeccable although in places he seems to have been influenced by the fact that "cultured and educated people" live in this area and "New Road, Ratlam" is a very important road and so many prosperous and educated persons are living on this road.
In India 'one man, one value ' is the democracy of remedies and rich or poor the law will call to order where people 's rights are violated.
What should also have been emphasised was the neglect of the Malaria Department of the State of Madhya Pradesh to eliminate mosquitoes, especially with open drains, heaps of dirt, public excretion by humans for want of lavatories and slums nearby, had created an intolerable situation for habitation.
An order to abate the nuisance by taking affirmative action on a time bound basis is justified in the circumstances.
The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only.
111 Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile.
Therefore, the court, armed with the provisions of the two Codes and justified by the obligation under section 123 of the Act, must adventure into positive directions as it has done in the present case.
Section 133 Cr.
P.C. authorises the prescription of a time limit for carrying out the order.
The same provision spells out the power to give specific directives.
We see no reason to disagree with the order of the Magistrate.
The High Court has taken a correct view and followed the observations of this Court in Govind Singh vs Shanti Sarup(1) where it has been observed: "We are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large, the safer course would be to accept the view of the learned Magistrate, who saw for himself the hazard resulting from the working of the bakery.
" We agree with the High Court in rejecting the plea that the time specified in the order is unworkable.
The learned judges have rightly said.
"It is unfortunate that such contentions are raised in 1979 when these proceedings have been pending since 1972.
If in seven year 's time the Municipal Council intended to remedy such a small matter there would have been no difficulty at all.
Apart from it, so far as the directions are concerned, the learned Magistrate, it appears, was reasonable.
So far as direction No. 1 is concerned, the learned Magistrate only expected the Municipal Council and the Town Improvement Trust to evolve a plan and to start planning about it within six months: the learned Magistrate has rightly not fixed the time limit within which that plan will be completed.
Nothing more reasonable could be said about direction No. 1.
" A strange plea was put forward by the Municipal Council before the High Court which was justly repelled, viz., that the owners of houses had gone to that locality on their own choice with eyes open and, therefore, could not complain if human excreta was flowing, dirt was stinking, mosquitoes were multiplying and health was held hostage.
A public body constituted for the principal statutory duty of ensuring sanitation and health cannot outrage the court by such an ugly plea.
112 Luckily, no such contention was advanced before us.
The request for further time for implementation of the Magistrate 's order was turned down by the High Court since no specific time limit was accepted by the municipality for fulfillment of the directions.
A doleful statement about the financial difficulties of the municipality and the assurance that construction of drains would be taken up as soon as possible had no meaning.
The High Court observed: "Such assurances, it appears, are of no avail as unfortunately these proceedings for petty little things like clearing of dirty water, closing the pits and repairing of drains have taken more than seven years and if these seven years are not sufficient to do the needful, one could understand that by granting some more time it could not be done." The High Court was also right in rejecting the Additional Sessions Judge 's recommendation to quash the Magistrate 's order on the impression that section 133 Cr.
P.C. did not provide for enforcement of civic rights.
Wherever there is a public nuisance, the presence of section 133 Cr.
P.C. must be felt and any contrary opinion is contrary to the law.
In short, we have no hesitation in upholding the High Court 's view of the law and affirmation of the Magistrate 's order.
Before us the major endeavour of the municipal council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order.
Of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out.
From that angle it may well be that while upholding the order of the Magistrate, we may be inclined to tailor the direction to make it workable.
But first things first and we cannot consent to a value judgment where people 's health is a low priority.
Nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch dogged by the court.
Three proposals have been put forward before us in regard to the estimated cost of the scheme as directed by the Magistrate.
The Magistrate had not adverted to the actual cost of the scheme nor the reasonable time that would be taken to execute it.
As stated earlier it is necessary to ascertain how far the scheme is feasible and how heavy the cost is likely to be.
The Court must go further to frame a scheme and then fix time limits and even oversee the actual execution of the scheme in compliance with the court 's order.
Three schemes placed before us, together with tentative estimates of the costs, have been looked into by us.
Judges are laymen and cannot put on expert airs.
That was why we allowed the municipality 113 and the respondents to produce before us schemes prepared by expert engineers so that we may modify the directions issued by the Magistrate suitably.
Scheme 'A ' is stated to cost an estimated amount of Rs. 1.016 crores.
The State Government has revised this proposal and brought down the cost.
In our view, what is important is to see that the worst aspects of the insanitary conditions are eliminated, not that a showy scheme beyond the means of the municipality must be undertaken and half done.
From that angle we approve scheme 'C ' which costs only around Rs. 6 lakhs.
We fix a time limit of one year for completing execution of the work according to that scheme.
We further direct that the work shall be begun within two months from to day and the Magistrate shall inspect the progress of the work every three months broadly to be satisfied that the order is being implemented bona fide.
Breaches will be visited with the penalty of section 188 I.P.C. We make the further supplementary directions which we specifically enjoin upon the municipal authority and the State Government to carry out.
We direct the Ratlam Municipal Council (R1) to take immediate action, within its statutory powers, to stop the effluents from the Alcohol Plant flowing into the street.
The State Government also shall take action to stop the pollution.
The Sub Divisional Magistrate will also use his power under section 133 I.P.C., to abate the nuisance so caused.
Industries cannot make profit at the expense of public health.
Why has the Magistrate not pursued this aspect ? 2.
The Municipal Council shall, within six months from to day, construct a sufficient number of public latrines for use by men and women separately, provide water supply and scavenging service morning and evening so as to ensure sanitation.
The Health Officer of the Municipality will furnish a report, at the end of the six monthly term, that the work has been completed.
We need hardly say that the local people will be trained in using and keeping these toilets in clean condition.
Conscious cooperation of the consumers is too important to be neglected by representative bodies.
The State Government will give special instructions to the Malaria Eradication Wing to stop mosquito breeding in Ward 12.
The Sub Divisional Magistrate will issue directions to the officer concerned to file a report before him to the effect that the work has been done in reasonable time.
The municipality will not merely construct the drains but also fill up cesspools and other pits of filth and use its sanitary 114 staff to keep the place free from accumulations of filth.
After all, what it lays out on prophylactic sanitation is a gain on its hospital budget.
We have no hesitation in holding that if these directions are not complied with the Sub Divisional Magistrate will prosecute the officers responsible.
Indeed, this court will also consider action to punish for contempt in case of report by the Sub Divisional Magistrate of willful breach by any officer.
We are sure that the State Government will make available by way of loans or grants sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under this order.
The State will realise that article 47 makes it a paramount principle of governance that steps are taken 'for the improvement of public health as amongst its primary duties '.
The municipality also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health.
It is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities.
We expect all the wards to be benefited without litigation.
The pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties.
Cappelletti holds good for India when he observes :(1) "Our judicial system has been aptly described as follows: Admirable though it may be, (it) is at once slow and costly.
It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent.
This "beautiful" system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims.
" Why drive common people to public interest action ? Where Directive Principles have found statutory expression in Do 's and Dont 's the court will not sit idly by and allow municipal government to become a statutory mockery.
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice.
The dynamics of the judicial process has a new 'enforcement ' dimension not merely through some of the provisions of the Criminal Procedure Code (as here), but also through activated tort consciousness.
The officers in charge and even the elected representatives will have 115 to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully.
The wages of violation is punishment, corporate and personal.
We dismiss this petition subject to the earlier mentioned modifications.
N.V.K. Petition dismissed.
| IN-Abs | The residents (respondents) of a prominent residential locality of the Municipality (petitioner) in their complaint under section 133 Criminal Procedure Code to the Sub Divisional Magistrate averred that the Municipality had failed despite several pleas, to meet its basic obligations, like provision of sanitary facilities on the roads, public conveniences for slum dwellers who were using the road for that purpose, and prevention of the discharge from the nearby Alcohol Plant of maladorous fluids into the public street, and that the Municipality was oblivious to the statutory obligation envisaged in section 123 M. P. Municipalities Act, 1961 The Municipal Council contested the petition on the ground that the owners of houses had gone to that locality on their own choice, fully aware of the insanitary conditions and therefore they could not complain.
It also pleaded financial difficulties in the construction of drains and provision of amenities.
The Magistrate found the facts proved, and ordered the municipality to provide the amenities and to abate the nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure would entail prosecution under section 188 I.P.C.
The order of the Magistrate was found unjustified by the Sessions Court, but upheld by the High Court.
In the Special Leave Petition by the Municipality to this Court on the question whether a Court can by affirmative action compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis.
^ HELD : 1.
Wherever there is a public nuisance, the presence of section 133 Criminal Procedure Code must be felt and any contrary opinion is contrary to the law.
[112D] 2.
The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance and so he shall exercise, it when the jurisdictional facts are present.
[107G] 98 3.
The Magistrate 's responsibility under section 133 Cr.
P.C. is to order removal of such nuisance within a time to be fixed in the order.
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding.
Failure to comply with the direction will be visited with a punishment contemplated by section 188 I.P.C. [109C D] 4.
The Municipal Commissioner or other executive authority bound by the order under section 133 Criminal Procedure Code shall obey the direction because disobedience, if causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the section.
The offence is aggravated if the disobedience tends to cause danger to human health or safety.
[109E] 5.
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law.
[110C] 6.
The imperative tone of section 133 Criminal Procedure Code read with the punitive temper of section 188 I.P.C. make the prohibitory act a mandatory duty.
[109E] 7.
The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision.
[108H] 8.
Section 123 M. P. Municipalities Act 1961 has no saving clause when the municipal council is penniless.
[108H] 9.
Although the Cr.
P.C. and I.P.C. are of ancient vintage the new social justice orientation imparted to them by the Constitution of India makes them a remedial weapon of versatile use.
Social Justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under section 133 Criminal Procedure Code.
In the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by article 38 of the Constitution.
[109F G] 10.
A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.
Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies.
Similarly, providing drainage systems not pompous and attractive, but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence.
[110E] 11.
The Court, armed with the provisions of the two Codes and justified by the obligation under section 123 of the Act, must adventure into positive directions as it has done in the present case.
Section 133 Criminal Procedure Code authorises the prescription of a time limit for carrying out the order.
The same provision spells out the power to give specific directives.
[111A B] Govind Singh vs Shanti Sarup, ; , 279 referred to.
The state will realise that article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.
The municipality also will slim its budget on 99 low priority items and elitist projects to use the savings on sanitation and public health.
[114C] 13.
Where Directive Principles have found statutory expression in Do 's and Don 'ts the court will not sit idly by and allow municipal government to become a statutory mockery.
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice.
The dynamics of the judicial process have a new `enforcement ' dimension not merely through some of the provisions of the Criminal Procedure Code (as here) but also through activated tort consciousness.
The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully.
The wages of violation is punishment, corporate and personal.
[114G 115A] [The Court approved a scheme of construction work to be undertaken by the Municipality for the elimination of the insanitary conditions and directed that the work be commenced within two months and that the Magistrate inspect the progress of the work every three months and see that it is implemented.
[113 D 114 B]
|
Civil Appeal Nos.
3520 3524 of 1979.
(Appeals by Special Leave from the Judgment and Order dated 11 9 1979 of the Kerala High Court in Writ Appeals Nos.
241, 242/77 and Original Petition Nos.
1791, 1836 & 1892/79.) 130 P. Govindan Nair.
Mrs. Baby Krishnan and N. Sudhakaran for the Appellants.
M. M. Abdul Khader, V. J. Francis and Sushil Kumar for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Civil Appeal Nos.
3520 to 3524 of 1979 which are directed against a common judgment dated 11 9 1979 of a Division Bench of the High Court of Kerala holding that in the Department of Education of the State of Kerala the post of Assistant Educational officer (hereinafter described as A.E.O.) is not a promotion post vis a vis that of a High School Assistant (hereinafter referred to as H.S.A.), that the two posts are interchangeable and that consequently the reversion of the solitary appellant in each case from the post of A.E.O. to that of H.S.A. is not violative of article 16 of the Constitution.
It is not disputed before us that each of the appellants had been holding the post of A.E.O. for more than six years continuously when his reversion was ordered in implementation of the instructions issued by the State Government through a letter dated the 19th May, 1977 to the effect that every A.E.O. should be transferred back as H.S.A after six years of service as A.E.O. or even earlier on administrative grounds.
Each reversion was challenged before the Kerala High Court by means of a petition under article 226 of the Constitution of India with the prayer that the same be quashed.
Two of the petitions were dismissed by a learned single Judge whose orders were challenged in letters Patent appeals which were heard and dismissed by the impugned judgment along with the other three petitions.
The five appeals have been admitted in pursuance of special leave granted by this Court.
On behalf of the appellants two contentions have been raised: (a) The post of A.E.O. lies in a category and carries a grade higher than those of the post of H.S.A. is, therefore, a post of promotion vis a vis the other so that the two cannot be considered as inter changeable especially because there is no rule, direction or instruction laying down expressly or by necessary implication that they are equivalent to each other.
(b) Even if the appointment of an H.S.A. as an A.E.O. cannot be regarded as a promotion, the impugned reversions are violative of article 14 as no guidelines to regulate them have been provided inspite of the fact that the post of an A.E.O. carries a special pay which is not available to an H.S.A. 131 After hearing learned counsel for the parties at length we find both these contentions to be weighty.
Promotion is thus defined in clause (11) of rule 2 of the Kerala State and Subordinate Services Rules, 1958: "(11) 'Promotion ' means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.
" This definition fully conforms to the meaning of 'promotion ' as understood in ordinary parlance and also as a term frequently used in cases involving service laws.
According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions, namely (i) that the new post is in a higher category of the same service or class of service; (ii) the new post carries a higher grade in the same service or class.
It is common ground between the parties that in the instant case the two posts belong to the same service or class of service.
Applying the above test, therefore, to them it would follow that the appointment of an H.S.A. to the post of an A.E.O. would be a promotion if, and only if (a) the post of an A.E.O. is of a higher category than that of an H.S.A. or (b) the post of an A.E.O. carries a higher grade than that of an H.S.A. In case of either of these conditions being fulfilled, the appointment of an H.S.A. to the post of an A.E.O. would be a promotion within the meaning of the clause above reproduced.
For ascertaining whether or not the post of A.E.O. lies in a category higher than that of an H.S.A. a reference may be made to clauses (5) and (7a) of rule 2 of the Kerala Education Rules, 1959 and section 12A of the Kerala Education Act, 1958.
Rule 2(5) defines Educational officer as meaning the District Educational officer or the Assistant Educational officer having immediate inspectional and administrative control over the schools within his respective jurisdiction, while rule 2(7a) states that the term 'Teacher ' includes the Headmaster.
Sub sections (1) & (2) of section 12A run thus: 132 "(1) Notwithstanding anything contained in section 11 or section 12 and subject to such rules as may be prescribed, the Government or such officer not below the rank of an Educational officer, as may be authorised by the Government in this behalf, shall have power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalties specified in the rules under this Act. "(2) The Government or the officer authorised under sub section (1) as the case may be, may suspend a teacher of an aided school when any disciplinary proceedings are proposed to be taken against him under that sub section or when such disciplinary proceedings are pending: . .".
The combined effect of these provisions is that if so authorised by the Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevant rules.
The Education Department Guide Book, 1978 issued by the State Government contains a detailed description of the powers and duties assigned to various officials of the Department.
The list of functions to be performed by the A.E.Os.
contains 40 items of which item 4 reads: "To institute disciplinary proceedings against non gazetted officers under his control as per Kerala Civil Services (C. C. and A.) Rules.
" Now H.S.As. are admittedly non gazetted officers who are eligible for appointment and are normally appointed as Headmasters of Upper Primary schools (vide paragraph 1(a)(i) of G.O.(Ms) No. 32/71/S. Edn., dated 19 3 1971).
They would thus while functioning as Headmasters, be amenable to disciplinary action by their respective A.E.Os.
It follows that the post of the A.E.O. lies in a higher category than that of the H.S.A. who does not wield any corresponding disciplinary jurisdiction.
The qualifications for the two posts may now be looked into.
A.E.Os. are appointed from amongst first grade graduate teachers having the following qualifications (vide No. G.O.M.S. 393/Edn., dated 25 7 1966): (a) General: B.A. or B.Sc.
133 (b) Special: (i) B.T. or B.Ed.
of a recognised University.
(ii) Account Test Lower.
(iii) Kerala Education and rules.
Rule 3 of the Kerala Education Subordinate Service (Special) Rules framed in 1972 runs thus: "3.
No High School Assistant shall be considered for being selected for posting as an Assistant Educational officer unless he has passed the test in Kerala Education Act and Rules.
" This rule seriously militates against the proposition propounded on behalf of the State that the two posts are inter changeable.
An H.S.A. cannot be posted as an A.E.O. unless he has the qualification (in addition to those making him eligible to hold the post of H.S.A.) of having passed the test in Kerala Education Act and Rules.
The reason for the additional qualification is obvious and that is that in his supervisory and disciplinary jurisdiction the A.E.O. has to discharge functions which he cannot efficiently carry out if he is not a master of the law which calls for day to day application by him to different cases with which he has to deal.
This is another factor pointing in the same direction that the post of an A.E.O. lies in a higher category.
An additional circumstance leading to the same inference is provided by the broad guidelines issued by the State Government to the effect that "care must be taken to see that only officers of high integrity and efficiency should be posted to work as Assistant Educational officers" (vide judgment dated 11th January, 1977 of the High Court of Kerala in O.P. No. 3627 of 1974).
H.S.As, are, therefore, appointed to the posts of A.E.Os.
not as a matter of course but under a process of selection for which the basic is integrity cum efficiency.
Further evidence in the same direction is provided by three documents forming part of the paper book at pages 31 38 and market as annexures 'C ', 'D ' and 'E ' respectively.
Annexure 'C ' is an order dated 29th August 1961 issued by the State Government, a part of paragraph 3 of which reads thus: "Criteria for promotion: "(1) Appointment to the posts of District Educational officers, Headmasters of High Schools, High School Assistants and Assistant Educational officers are now made mainly on the basis of seniority.
Promotion on the basis of seniority alone is not conducive to efficiency.
Promotions to these posts will hereafter be made on a selection basis.
134 "(2) The above orders will be given effect from the 1st September 1961. " Annexure 'D ' is a letter dated 17th February 1969 from the Director of Public Instructions to the District Educational officer, Trivandrum and states, inter alia,: "The question of probation arises only when there are functional differences.
So in the case of Assistant Educational officers probation has to be insisted on.
" The last of the three documents is an order dated 19th October 1974 issued by the State Government introducing direct recruitment to the posts of A.E.Os.
and District Educational officers.
It contains, amongst others, the following directions: "The persons selected will be required to undergo/pass the following training programme/departmental tests: "Assistant Educational officers, "Training: One year as Headmaster of an Upper Primary School.
Six months with Assistant Educational officer of which the last three months shall be as Head Clerk of the Assistant Educational officer 's office.
Six months in the District Educational officer 's office of which the last three months will be as Junior Superintendent in charge of one of the sections.
Two months OM(?) training in the Directorate or Secretariat Training School.
Four months as personal assistant to Educational officer.
"Departmental Tests: 1.
Account test (Lower).
Test in Kerala Education Act and Rules.
Test in Manual of office Procedure.
" The integrated effect of these three documents is that the functions to be performed by an A.E.O. are substantially different from and entail higher responsibility than those of an H.S.A., that the appointment to the post of an A.E.O. from amongst officials already serving the State Government is a matter of promotion and not a mere transfer, and that that is how the Kerala Government itself has been viewing the matter all along prior to the issuance of the letter dated 19th May, 1977 mentioned above.
135 8.
Here we may briefly advert to the constitution of the Kerala General Education Service as detailed in G.O. (P) No. 356/PD, dated 28th October, 1967 and published in Kerala Gazette No. 46, dated 21st November 1967.
That Service is divided into two classes.
The post of the District Educational officer falls in Class I which is superior to Class II.
The posts enumerated in Class II include those of Headmasters of High Schools.
The post of H.S.A. does not find a place in either Class.
On the other hand the H.S.A. belongs to the Kerala Educational Subordinate Services and works under the Headmaster of a High School.
He is, therefore, two steps below the District Educational officers.
Mr. Nair sought to utilise this circumstance as another pointer to the post of H.S.A. lying in a category lower than that of an A.E.O. for, according to him, the latter was only one step below the post of a District Educational officer.
The argument has not commended itself to us as no foundation has been laid for the assumption that the post of an A.E.O. furnishes an immediate avenue of promotion to that of the District Educational officer.
In fact an indication to the contrary is provided by the various categories listed in Classes I and II mentioned above, neither of which includes either H.S.As.
or A.E.Os.
This may well mean that the A.E.O. too is to hold another post (out of those listed for the purpose in the G.O. last mentioned) before he would have a chance of promotion as a District Educational officer.
And if that be so, an A.E.O. must also be regarded as two steps below a District Educational officer.
The G.O. under consideration is, therefore, of no help to the case of the appellant, but then this conclusion does not adversely affect the finding already arrived at by us otherwise to the effect that the post of an A.E.O. lies in a higher category.
The only argument which Mr. Abdul Khader advanced against the proposition that the post of an A.E.O. lay in a higher category may be stated thus.
According to the available rules and instructions an H.S.A., but not an A.E.O., may be appointed to the post of Headmaster of a High School.
However, the Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As.
Now this is, to say the least.
a strange argument.
If the rules do not permit A.E.Os.
to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention.
In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily 136 follow from such a practice that the two sources must be regarded as equivalent to each other for all purposes.
Let us now see if the post of an A.E.O. carries a higher grade.
It is common ground between the parties that although the two posts are in the same time scale, a special pay of Rs. 50/ per mensem is attached to post of an A.E.O. in accordance with the orders of the State Government contained in clause (v) of paragraph 5 of G.O. (P) No. 300/66/Fin., dated 5 7 1966 which also states that this special pay is to be treated as Class I special pay in accordance with Appendix IV, Kerala Service Rules.
That Class consists of two items: (a) Special pay in lieu of higher time scale of pay.
(b) Special pay for specifically arduous nature of work.
The expression 'special pay in lieu of higher time scale of pay ' may be better understood with reference to the provisions of rule 12(31) of the Kerala Service Rules which may be extracted here: "12(31) Special Pay: means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following: "(a) Where a post would call for a higher scale of pay in view of the additional and/or higher responsibilities attached to it: or "(b) Where the nature of work is specially arduous; or "(c) Where an officer has to attend to work in addition to normal duties attached to his post.
" Sub clauses (b) & (c) of clause (31) obviously relate to posts having the same designation or the same nature of duties in the same time scale which is not the case here.
On the other hand, the special pay granted to an A.E.O. would squarely fall within the sub clause (a) of clause (31), in view of the nature of higher responsibilities shouldered by him.
And if that be so, the grade of the post of an A.E.O. must be equated to the time scale plus special pay, which would be a grade higher than the one available to an H.S.A. 11.
In contending to the contrary Mr. Abdul Khader sought support from P. G. Joshi and others, etc.
etc, vs The Director General, Posts and Telegraphs, New Delhi, etc.(1), in which the posts of Wireless Licence Inspectors and Town Inspectors, to such of which a special pay of Rs. 30/ was attached, were held equivalent to those of clerks, the time scale for all the three being the same.
The dictum in that case is, however, not applicable to the facts with which we are concerned.
Therein this Court took note of the definition of special pay occurring in Fundamental 9(25) which states: 137 "Special pay means, an addition of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of (a) the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility; or (c) the unhealthiness of the locality in which the work is performed." then proceeded to observe: "The provision for payment of a special pay of Rs. 30/ in addition to the time scale of pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors.
The provision for special pay shows that they continue in the cadre of time scale clerks.
Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post.
Though, for directly recruited Wireless Inspectors, there is an avenue of promotion from those posts to the post of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time scale clerks.
Their avenues of promotion are from their substantive posts of time scale clerks.
The posts of Wireless Licence Inspectors to which time scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion.
The posts of Wireless Licence Inspectors are in the cadre of time scale clerks and carry a special pay on account of additional work." Special pay of Rs. 30/ in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O.
All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub clauses (b) & (c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub clause (a) of rule 12(31).
The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.
We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. either category wise or grade wise, the impugned reversions are still hit by article 14 of the Constitution of 138 India.
In this connection two important factors have to be taken note of.
The first is that the post of an A.E.O. carries a special pay of Rs. 50/ per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A.
The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules.
According to rule 12(23) special pay is part of 'pay ' while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23).
The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are available to him after retirement.
The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him.
The direction contained in the letter dated 19 5 1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle.
It is, therefore, violative of article 14 and we hold it to be so. 13.
In the result all the five appeals succeed and are accepted.
The impugned judgment is set aside and the orders 'transferring ' the appellants from the posts of A.E.Os.
to those of H.S.As. are quashed.
As a necessary consequence if any of the appellants has had to relinquish charge of the post of A.E.O. in compliance with such orders, he shall be deemed to have continued to hold the post of an A.E.O. (in spite of and right from the date of the order of his transfer as H.S.A.) and to be entitled to all the benefits pertaining to that post, and the respondents are directed to repost him as A.E.O. as expeditiously as possible and within a month from the date of this order at the latest.
We make it clear that the vice of arbitrariness and other infirmities we have pointed out are curable if only the State Government amends the rules fairly and rationally.
This judgment does not stand in the way of Government framing new rules or amending the old rules but such rules must be in conformity with Part III of the Constitution.
S.R. Appeals allowed.
Appeal, allowed.
| IN-Abs | Each of the appellants had been holding the post of Assistant Educational Officer for more than six years continuously when his reversion was ordered in implementation of the instructions issued by the State Government through a letter dated 19th May, 1977 to the effect that every Assistant Educational Officer should be transferred after six years of service as such or even earlier, on administrative grounds.
Having failed before the High Court to get these orders quashed on the ground that the posts of Assistant Educational Officers, being promotional posts, their transfer to the posts of High School Assistant amounted to reversion and, therefore, violated Articles 14 and 16 of the Constitution, the appellants have now come up in appeal by special leave.
Allowing the appeals, the Court, ^ HELD: (1) The directions contained in the letter dated 19th May, 1977 that an Assistant Educational Officer should be transferred back as a High School Assistant after six years of incumbency as Assistant Educational Officer is wholly arbitrary and not based on any principle and is therefore violative of Article 16 of the Constitution.
Firstly, the post of A.E.O. carries a special pay of Rs. 50/ per month and therefore ensures for its incumbent higher emoluments than are available to a High School Assistant.
Secondly, the special pay is counted towards pension under Rules 12, 23 and 62 of the Kerala Service Rules.
Any transfer of an Assistant Educational Officer to that of High School Assistant deprives him of these benefits and, therefore, is violative of Article 14.
[137H, 138A D] P. C. Joshi and others etc.
etc vs The Director General, Posts and Telegraphs, New Delhi etc., [1975] 2 S.C.R. 115, distinguished.
(2) The very fact that the post of Assistant Educational Officer carries a special pay of Rs. 50/ falling within sub clause (a) of clause 31 of Section 12 of the Kerala Service Rules, goes to prove that the post is higher than that of High School Assistant.
[136B C, 137F G] (3) Rule 2(ii) of the Kerala State and Subordinate Service Rules, 1958, Rule 2(v), Rule 2(vii)(a) of the Kerala Education Rules, 1959 and Section 12A of the Kerala Education Act, 1958 make it clear that if so authorised by the 129 Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevant rules.
Item 4 of the functions to be performed by an Assistant Educational Officer detailed in the Education Department Guide Book, 1978 empowers him to institute disciplinary proceedings against non gazetted officers under his control as per Kerala Civil Services (Qualification, Control and Appeal) Rules, and admittedly High School Assistants are non gazetted officers who are eligible for appointment and are normally appointed as Headmasters of upper primary school and, therefore, they would while functioning as Headmasters be amenable to disciplinary action by their respective Assistant Educational Officers.
It follows that the post of an Assistant Educational Officer lies in a higher category than that of a High School Assistant who does not wield any corresponding disciplinary jurisdiction.
[132C G] The qualifications prescribed by the Government order dated 25th June, 1966 and Rule 3 of the Kerala Education Subordinate Service (Special) Rules, 1972 make it clear that the two posts of Assistant Educational Officer and High School Assistant are not inter changeable.
A High School Assistant cannot be posted as an Assistant Educational Officer unless he has the qualification (in addition to those making him eligible to hold the post of High School Assistant) of having passed the test in Kerala Education Act and Rules.
The broad guidelines issued by the State Government to the effect that "care must be taken to see that only officers of high integrity and efficiency should be posted to work as Assistant Educational Officers", the Government Order of 29th August, 1961, the letter dated 7th February, 1969 issued by the Director of Public Instructions and the Order dated 19th October, 1974 issued by the State Government introducing direct recruitment to the posts of A.E.Os.
and District Educational Officers also specifically indicate that the functions to be performed by an Assistant Educational Officer are substantially different from and entail higher responsibility than those of an H.S.A. so that the appointment to the post of A.E.O. from amongst officials already serving the State Government is a matter of promotion and not a mere transfer and that is how the Kerala Government itself has been viewing the matter all along prior to the issuance of the letter dated 19th May, 1977.
[131G, 133B C, E, F, 134G H] (4) If the rules do not permit Assistant Educational Officers to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention.
There is no incongruity in the two categories of the posts, one higher and the other lower, furnishing two sources of recruitment to another higher post and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for all purposes.
[135G H, 136A]
|
Review Petition No. 104 of 1980.
Review Petition against the Judgment and order of this Hon 'ble Court dated 7 5 1980 and 9 5 1980 in CMP.
No. 1219/80.
Kapil Sibal and R. section Sodhi for the Petitioner.
169 R.K. Garg and P.C. Bhartari for Respondent No. 3.
The order of the Court was delivered by KRISHNA IYER, J. A simple petition to review an earlier judgment of this bench has, because of the intervening summer vacation, passed through vicissitudes, gathered episodes and been blown up into an exciting chronicle of unsavoury events, injecting more passion than reason, more heat than light, into the forensic proceedings.
We kept completely clear of the unhappy imputations and confined counsel to the merits of the review proceeding before us. 'Justice discards party, friendship, and kindred and is therefore represented as blind '.
This objectivity generated clarity and brevity, thanks, of course, to cooperation by counsel on both sides.
The facts are few although the fight is furious and the parties are army officers.
It is a pity that careerism makes camaraderie a casualty in a profession where self sacrifice for a higher cause is the dedication.
Without moralising, we will state the grievance of the petitioner and examine whether our earlier order deserves reconsideration or reversal.
Judges have a vested interest not in their judgments but in the justice of the cause and where the former is in error must unhesitatingly suffer surgery so that no curial wrong is done and right, to the best of our lights, is done.
Two colonels in the army have one post of brigadier to which either may aspire and become Director of Military Farms.
In this musical chair scenario the (review) petitioner apprehending that the Central Government was considering a ' change of policy departing from the 1964 policy, in choosing the officer to become brigadier in charge of the military farms, moved the High Court for a writ to issue to Government against any such new policy.
The High Court, before it finally disposed of the case, had directed the Defence Department to select the best colonel to be promoted as brigadier and Farm Director.
The selection so made was to be without prejudice to the result of the writ petition but it is significant that the report made was that both the contesting colonels were equal in merit (to run cattle farms?) but the respondent (in the review petition) being senior as colonel may be chosen for, the post Merit being equal, seniority tilts the scales fair enough.
Eventually, the High Court considered the legal import of the 1964 policy and allowed the writ petition which meant that the (review) petitioner would become the brigadier.
The respondent colonel rushed to this court for special leave to appeal which was granted, and, after hearing both sides and the learned Attorney General for the Central Government, this court passed a final order.
We see no reason, whatever to depart from that judgment 170 and no basic flaw therein has been pointed out either.
It was plainly laid down that no finality nor infallibility attached to the '1964 policy ' and the Central Government was free to revise or reverse that policy 'provided it acts justly and fairly '.
A month 's time to evolve a new policy, if felt necessary, was granted to Government and the learned Attorney General agreed to abide by this direction.
Three factors need more than passing notice.
The Defence Ministry the file had been shown to us at the hearing of the appeal and there is material in the pleading also has been considering revision of the 1964 policy and the court has upheld its full freedom to do so.
Secondly, the post of brigadier fell vacant in 1979 and, on the direction of the High Court, an evaluation of the claims of both was made by the Selection Panel on an updated basis.
In this process, both were adjudged equal and the senior (the respondent in the review petition) was recommended for appointment.
Thus, it is obvious that had the Defence Ministry been permitted to choose, the respondent would have enjoyed the post. 'There is nothing outrageous in picking the senior when both are otherwise equal.
There is a human side to it also.
The senior was to retire in a, few months and the other hopefully would have his innings.
The third circumstance which should not be overlooked is that this court did give the go by to the High Court 's finding: "We make it further clear that the Central Government will be free to act subject to the directions we have given above and untrammelled by the reasoning or the direction given by the High Court." Indeed, we had, in the judgment, emphatically upheld the Central Government 's plenary power to formulate or modify military policy.
Wars are won or lost not through writs of courts but by the best strategy.
But even amidst the clash of arms the laws shall not be silent, so much so, the constitutional mandate not to act arbitrarily was binding on the Defence Ministry.
The selection on which the review petitioner stakes his claim is of 1971 vintage and the vacancy to be filled was of the year 1979.
The respondent, therefore, contested the petitioner 's 1971 credentials as obsolete and even obscurantist.
We need not re open that issue except to state that in the final order, passed after hearing both sides, the inviolability of the 1964 policy had been nailed.
A closer reading of the 1964 policy statement reveals under it seniority for an earlier promotee is conferred in the substantive rank provided he has been earlier included in the approved list.
Such a situation has not arisen here at all.
Be that as it may, the final direction of the court appeal.
171 did permit the Central Government to evolve its policy within one month.
This not having been done, the respondent drew the attention of the court to the non compliance and for consequential orders.
At the hearing of that petition (the so called contempt petition) the respondent through Shri R. K. Garg and the Central Government through the learned Attorney General were heard.
Shri Kapil for the petitioner (review) intervened and was heard.
But we must fairly state that his client had not been given formal notice and perhaps he had a grievance of not having been heard adequately.
We cannot fault him for filing a review petition but hasten to clarify that we wholly desist from making any observations on the happenings set out in the respondent 's papers put into court.
Nor did we permit Shri Garg to refer to those matters since they were in our view.
extraneous to the merits of the review petition and related to another proceeding pending before another bench.
We must record that Shri Kapil has with youthful vigour and clarity of advocacy presented his case fairly.
The gravamen of his grievance is merely that he should have been heard if a direction to his prejudice was to be made.
We are mindful of the force in this plea and cannot dismiss it merely because the sands of time are running out against the respondent whose approaching retirement will make his legal success, if any, a phyrrhic victory and, worse a tragic irony.
Of course.
that, by the way, is the life style of most litigative triumphs.
Shri Garg in his fighting submissions, complained how his client had been baulked of the fruits of success by dubious proceedings, but, while we are unconcerned about those anecdotes, we do consider that there is justice in his plea that he has been chosen by the panel in 1979, that a bare selection (not actual promotion) of 1971 on which the petitioner relies, is too stale to be relevant, that the Central Government itself had filed an affidavit in this court stating that they had appointed his client and that neither law nor justice supported any interference with this court 's direction of 7 S 1980 to promote the respondent as Brigadier.
Let us notice the substance of this Court 's orders dated 7th and 9th May, 1980 which are now sought to be reviewed.
On May 7, 1980, the following direction was given following on the non compliance by the Central Government with the earlier judgment: "This Court had given a direction that the policy of the Defence Ministry may be finalised within one month from the date of the order.
That period has expired on 26th April 1980 Nevertheless, no policy decision has yet been taken nor even has an application been made for extension of time from this ? Court.
We consider that this conduct is far from satisfactory.
172 However, there are two courses open, out of which one must be adopted in the course of couple of days.
The Respondent may appoint the petitioner, Director, Military Farm (Brigadier) until he retires, which event, we are told, happens within about four months.
Alternatively, the Union of India in the Defence Ministry will take its policy decision within two days and report ', to this Court about it so that further directions may be issued on 9 5 1980 regarding further implementation of the policy consistent with the rights of the petitioner.
Post on 9 5 1980.
" This order of 7th May, in sequence and consequence, flows out of the judgment of March 216, 1980 made after all parties were fully heard.
Two notable circumstances in that order, as earlier highlighted, are these.
Firstly, Government had freedom to formulate a new policy, but it had to be done within one month as accepted by the Attorney General.
Secondly, Government was freed from the High Court 's insistence on the 1964 statement.
If this bondage was not broken, this court could not have directed the Defence Ministry to make any new policy it thought fit.
A third fact, undisputed, also emerged from the case, viz., that in 1979 on the High Court 's direction fresh evaluation of promotional merit gave the respondent (review) an edge over the petitioner on the score of seniority not, surely, an extraneous factor.
Necessarily, therefore, this Court in its May 7th order gave effect to the earlier judgment virtually with the consent of the Central Government.
This is made more manifest in para 5 of the Government 's affidavit put in on May 9, 1980.
Paragraphs 4 and 5 of that affidavit merit excerption: "I state that the Government have taken steps for and are in the process of finalising a policy applicable to the officer cadre in the Army in all the Arms (Infantry, Artillery, Armoured Corps) and Services (Army Supply Corps, Army ordnance Service etc.
including the Department of Military farms).
The chief of the Army Staff has already appointed a High Power study Team comprising of Senior Army officers and headed by an Army Commander to study all aspects of selection and other career management procedures now in vogue in the Army including promotion procedures. 'The Study Team has already made considerable progress in their deliberations.
After the Study .
Team submits its Report, the matter will have to be considered by the Army Commanders and later examined by the Army Headquarters and the Government.
The above process is likely to take some more time.
It will not be appropriate to evolve a separate policy for a small Directorate like the Directorate of Military Farms alone.
The entire officer Cadre of the Army in 173 the Army like Infantry, Artillery, Armoured Corps and Services A like Army Supply Corps, Army ordnance Service etc.
will have to be covered by one uniform policy as is existing at present.
In the circumstances and in compliance with this Hon 'ble Court 's directions/orders dated 26 3 1980 and 7 5 1980, the government are willing to abide by this Hon 'ble Court 's directions given on 7 5 1980.
Government, however, prays that this Hon 'ble Court may be pleased to direct that the promotion of the petitioner to the rank of Brigadier will be without prejudice to the policy which may ultimately be decided by the Government and subject further to the condition that if under the policy which may be evolved, the petitioner is not eligible for promotion to the rank of Brigadier, he would have no right to continue in the said rank.
" It is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy.
So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971.
That apart, a selection of 1979 turned out in favour of the respondent.
And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980.
The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9th.
We have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice has suffered on account of the impugned orders.
A review is not a routine procedure.
Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard.
But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
In Sow Chandra Kanta and Anr.
vs Sheik Habib this Court observe.
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
The present stage is not a virgin ground but review of Dn earlier order which has the normal feature of finality.
" H 174 By this test and even after re reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. 'The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent.
They are of equal merit as assessed in 1979.
The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier.
He has a period of a month or so to go for retirement when the vacancy will be filled in.
probably by the petitioner.
The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up.
Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank.
Moreover, whether the 1964 policy statement confers a right merely by inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen.
to say the least.
These are sufficient for us to repel the relief of review.
Of course, the petitioner has effectively postponed the appointment of the respondent by getting a stay order.
We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow.
Law is highly allergic to procrastination.
We refuse the review, but in the circumstances without costs and hope that the chapter of unfortunate events referred to in the affidavits will be treated as closed in a spirit of mutual goodwill.
It has been brought to our notice that there is a direction by the vacation judge that the extra salary that the respondent may be entitled to in the event of success should be deposited into court by the Central Government and that has been done.
The respondent will draw that sum from court.
But there will be no direction that the petitioner should refund the extra salary if any, drawn by him because, after all, he must have functioned pending orders of this Court, as Director of Military Farms and so we do not think it just to make any order for refund against the petitioner.
P.B.R. Review petition dismissed.
| IN-Abs | Apprehending that the Government was considering a change of policy framed in 1964 for choosing an officer to become brigadier in charge of military farms the petitioner moved the High Court for the issue of a writ.
On directions from the High Court to the Defence Department to select the best man for the post the Department reported that the petitioner and respondent were equal in merit, but since the respondent in the review petition was senior as colonel, he be chosen for the post.
After considering the legal import of the 1964 policy the High Court allowed the petitioner to become a brigadier The respondent 's petition for special leave was granted by this Court.
The Central Government was given one month 's time to evolve its policy, if necessary.
That not having been done the respondent moved this Court again as to the non compliance and for consequential orders.
On May 9, 1980 the Court passed orders that the respondent be appointed as brigadier.
The petitioner sought review of that order. ^ HELD: A review is not a routine procedure.
An earlier order cannot be reviewed unless the Court is satisfied that material error manifest on the face of the order undermines its soundness or results in miscarriage of justice.
A review of a judgment is a serious step and resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
In the instant case the relief of review is not justified.
[173G H] Chandra Kanta vs Sheikh Habib ; at 933 34, followed.
From the affidavits filed by the Government in the Court on May 9. 1980 it is obvious that the Government had decided on abandoning the 1964 policy and was actually pursuing steps to fashion a new policy.
Therefore, no rights on the old basis, if any, can enure to the benefit of the petitioner especially because he relied on his third rank in a selection for one vacancy made in 1971 That apart, a selection of 1979 turned out in favour of the respondent.
The petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980.
The conspectus of circumstances hardly persuades the Court that there is injustice in the order of May 7th or May 9th.
[173D E]
|
tition Nos. 434 435 of 1980.
(Under Article 32 of the Constitution) Ramjethmalani, H. Jagtiani, S.K. Dhingra and L.P. Daulat for the Petitioner.
M.N. Phadke and M.N. Shroff for the Respondent (State).
Abdul Kedar and Miss A. Subhashini for the Respondent (Union of India).
The Judgment of the Court was delivered by: SARKARIA, J.
This judgment deals with two writ petitions for the issue of a writ of habeas corpus, which were allowed by us by a short Order, dated April 23, 1980.
In Writ Petition 434 of 1980, the detenu is one Indru 's Ramchand Bharvani; while in Writ Petition 435 of 1980, the detenu is Indru 's father, Ram Chand Bharvani.
The two detenus Indru 's and Ram Chand, along with others, are carrying on business in diamonds and precious stones in partnership under the style of "M/s. Gems Impex Corporation".
35, New Marine Lines, Bombay, since 1971.
On November 16, 1979, the Customs Officers at Bombay raided the premises of the said firm and in the course of the raid, seized diamonds and pearls worth about Rs. 55 lakhs and, also, some jewellery and Rs. 1,40,000 in Indian currency and two gold sovereign coins.
On the following day, the Customs raided the residential premises of the son, Indru 's, and seized two cameras and three wrist watches worth about Rs. 1.50 lakhs.
The detenus were arrested on November 23, 1979 and interrogated.
During interrogation, the detenus claimed that the gems and other articles seized were not smuggled goods but were local materials, locally acquired.
They also gave the names of four persons from whom these gems had been acquired.
Both the father and the son were arrested and were produced before a Magistrate.
They were released on heavy bail subject to the condition that they 346 would attend daily before the Customs Officers and cooperate in the investigation.
This condition was later on related.
On February 16, 1980, an order of detention, dated February 15, 1980, purporting to have been made under Section 3(1) of the (for short called COFEPOSA) by the State Government was served on the detenus.
This order was authenticated by the Under Secretary to the State Government.
The grounds of detention were also served on the detenus alongwith the order of detention on February 16, 1980.
On February 18, 1980, the wife of the detenu, Ram Chand, addressed a letter to the first respondent (Under Secretary to the Government of Maharashtra), requesting him to furnish the detenus with the material relied upon by the detaining authority in the grounds of detention.
On March 25, 1980, detenu received a letter, dated March 14, 1980 from the State Government, declining the request for supply of copies to the detenu.
Prior to that on March 12, 1980, the detenus moved this Court by petitions under Article 32 of the Constitution, for the issue of a writ of habeas corpus.
On March 11, 1980, the detenu had also sent a petition through the Central Government, complaining of the non supply of copies of the necessary documents.
They also made, by that petition, such representations) as they could, praying for revocation of the order of their detention.
On April 3, 1980, the Central Government wrote to the detenus that their request for revocation had been rejected.
The Central Government, however, advised the State Government to furnish the detenus with the copies of the required documents.
As a result, on April 3, 1980 copies were received by the detenus from the State Government under their covering letter, dated March 31, 1980.
On March 24, 1980, the detenu also made a representation to the State Government which, according to the information furnished at the Bar by Mr. Phadke appearing for respondent 1, was declined.
Shri Ram Jethmalani, appearing for the detenus, challenges the detention mainly on these grounds: (1) The order of detention, purporting to have been signed by Shri Salvi, Secretary in the Home Department, to the Government of Maharashtra, is void because the concerned Minister of the State Government never, in fact, passed any such order and under the rules of business framed by the Governor under Article 166 of the 347 Constitution, Shri Salvi had no authority to pass the order of detention.
(2) The detaining authority never applied its mind to the earlier statements of four persons from whom the detenus claimed to have acquired the gems in question, and in which they had on the basis of documentary evidence supported the contention of the detenus.
Further, there was no evidence of smuggling in this case at all and the detaining authority committed illegality inasmuch as it relied on presumption under Section 123 of the Customs Act.
The use of this presumption was not available to the detaining authority in the exercise of its jurisdiction under COFEPOSA.
This shows that there was total non application of mind on the part of the detaining authority.
(3) The detenus made a written request to the detaining authority on February 18, 1980 for supply of the copies of the statements and documents relied upon in the grounds of detention, to enable them to make an effective representation.
The detaining authority, however, callously and deliberately refused to supply the copies and conveyed rejection of this request by a letter, dated February 14, 1980, which, in fact, was received by the detenus on March 25, 1980.
It was on the direction of the Central Government that the State Government supplied the copies of some of the statements to the detenus on April 3, 1980.
The detenu had a constitutional right to be afforded a fair and full opportunity of making an effective representation against his detention.
The refusal and the belated supply of these copies had violated that right of the detenu.
Even how, copies of the earliest statements of the four persons, as is apparent from their statements, have not been supplied to the detenus.
On account of this delay, the detention is vitiated.
(4) The detenu 's representation, dated March 11, 1980, made to the Central Government for revocation of the detention under Section 11 of the COFEPOSA has been wrongly rejected by an unauthorised person.
Under the Rules of Business, only the Revenue Minister of the Union Government was authorised to deal with and reject that representation.
But it seems that the representation was never put up before the Minister.
(5) The representation, dated March 24, 1980, made by the detenus to the detaining authority is now reported to have been rejected on April 8, 1980.
But the question still remains as to who passed the order of rejection.
If this representation was rejected by a person other than the Minister who alone was competent to do so, under the Maharashtra Rules of Business framed under Article 166 of the Constitution, then such rejection would be illegal.
348 As regards (1), Shri Phadke, appearing for the respondent State, has submitted for the perusal of the Court the original record from which it is apparent that the matter was put up by the Secretary.
Shri P.G. Salvi to the Minister concerned and the order of detention was in fact, passed by the Minister.
The first contention is therefore, devoid of merit.
Similarly, it is clear from the police records that the representation, dated March 24, 1980, of the detenus was considered by the Adviser to the Governor of Maharashtra, the State then being under President 's rule.
The Adviser was competent under the Rules of Business framed under Article 166 to deal with and reject such representation.
We therefore, do not find any force in Contention (5), either.
Indeed, Shri Jethmalani has concentrated mainly on Contention (3).
In reply to this contention, Shri Phadke submits that the grounds of detention were as elaborate as possible, that the substance of the statements, of which copies were asked for by the detenus, had been incorporated in those 'grounds ' which were served on the detenus, that in such a situation, the 'grounds ' served on the detenu, were more than sufficient to enable him to make an effective representation.
It is contended that under the Constitution, the detenu has got a right to be furnished only with the grounds of detention, that is, conclusions drawn from facts and not matters of detail or any other matter which is not referred to or relied upon in the grounds of detention.
This, according to Shri Phadke, was one of the reasons that impelled the State Government to refuse the supply of the copies to the detenu.
The second reason, according to the counsel was that the supply of the further information would have exposed the informants to bodily harm at the hands of the agents of the detenus, that the matter being still under investigation, the disclosure at that stage of the information would have adversely affected the investigation and harmed public interest.
Let us at the outset be very clear about the precise factual position.
The request for copies was made by the detenus on February 18, 1980.
After a delay of more than three weeks, this request was rejected by the State Government and that rejection was communicated to the detenu, by letter dated March 14, 1980.
This letter was received by the detenu only on March 25, 1980.
This delay in transit, also, was unusual and inordinate.
On March 27, 1980, the Central Government advised the State Government to supply the copies.
Thereupon, it seems, that within three days the copies 349 were put in a course of communication to the detenus by the State Government under their covering letter, dated March 31, 1980, and were actually received by the detenus on April 3, 1980.
The very fact that soon after the directions of the Central Government copies were ready and despatched to the detenus within three days thereof, shows that there was no physical difficulty in preparing and supplying the copies to the detenus, with due promptitude.
To justify the refusal to supply the copies the stand taken by the State Government in the affidavit filed on their behalf by Shri P.G. Salvi, Secretary to the Government, Home Department, is as follows: "(a) Looking at the exhaustive grounds furnished to the detenu and also the fact that the four persons named therein had denied before the Customs Officers that they sold the diamonds in question or gave them on 'jhangad ' basis was communicated to the detenu it was not necessary to furnish any copies of statements and documents to the detenu to enable him to make an effective representation against his detention.
(b) After the application on behalf of the detenu dated 18th February 1980 was received, a communication dated 27th February 1980 was received from the Collector of Customs (Preventive), Bombay.
This letter clearly suggested that copies should not be given Annexure "A".
" Annexure "A" to the affidavit is a letter, dated February 27, 1980, from the Collector of Customs, Bombay, addressed to the Secretary to the Government of Maharashtra, Home Department, in reply to the latter 's letter, dated February 19.
In para 2 of this letter, the Collector has stated: "In the case in which the captioned detenus are involved, investigation to unearth the conspiracy and find out the other persons involved in it, are in progress.
It appears from the material under seizure that the case has wide ramifications, which need to be investigated from various angles.
Hence, furnishing copies of the statements and documents at this stage would be detrimental to the investigation in progress from prosecution point of view and might even endanger the life of such of those witnesses who have either deposed against the detenus or provided clues.
Under these circumstances, furnishing of copies of statements and documents relied upon in the grounds for detaining the aforesaid accused at this stage, would not be in public interest.
However, we have no objection for furnishing copies of the panchanamas.
" 350 In this affidavit, Shri Salvi has not stated that he had personally applied his mind to what the Collector had said in his letter, dated February 27, 1980, nor has he affirmed that he had intimated to the detenu that the copies had been refused in exercise of the discretion under Article 22(6) of the Constitution, on the ground that the disclosure of that information was, in the opinion, of the Government, not in the public interest.
It is well settled that "the constitutional imperatives enacted in Article 22(5) of the Constitution are two fold: (i) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; and (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order.
In the context, 'grounds ' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3; nor is its connotation restricted to a bare statement of conclusion of fact.
"Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu".
This is the ratio of the decision in Khudiram Das vs The State of West Bengal & Ors., to which one of us (Sarkaria, J.) was a party.
This principle was enunciated after an exhaustive survey of the authorities by Bhagwati, J. who delivered the opinion of the Court.
It is, therefore, not necessary to burden this judgment by noticing all the other decisions which were examined in that case.
The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu.
In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements.
It is submitted by the learned counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the 'grounds ' of detention, the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudiram 's case.
There is merit in this submission.
The second reason for non supply of the copies given by Shri Salvi, it may be recalled, is that the Collector had said that the supply of the copies at that stage would be detrimental to the investigation and public interest.
This "so called" reason also was unsustainable 351 in law.
Shri Salvi does not appear to have applied his mind to the question whether or not the supply of these copies would be injurious to public interest.
He appears to have mechanically endorsed what had been written to him by the Collector in his letter, dated February 27, 1980.
The detenu had asked for copies of three kinds of documents: (a) His own statements which according to the grounds of detention, were in consistent and contradictory to each other, (b) Copies of the statements of his father, who is the detenu in Writ Petition No. 435/80.
These statements.
also, according to the grounds of detention, were mutually inconsistent.
(c) The full texts of the statements made by the four persons, whose names, particulars and substance of their statements were mentioned in the grounds of detention.
As regards the first two categories of statements the substance of which was already in the knowledge of the deponents, no question of their disclosure being harmful to the public interest could arise.
Nor could the supply of the full text of those statements, by any stretch of imagination, be said to be such that it might endanger the lives of the deponents.
Regarding category (c), the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus.
It was therefore, not reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest.
In the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the Central Government, there is a reference to the earlier statements of these four persons in which they had, on the basis of some account books and documents, supported the contention of the detenus that the latter had acquired the gems in question from those persons.
The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements.
It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held, could not, by any reckoning, expose those persons to any alarm or danger at the hands of the agents or partisans of the detenus.
Be that as it may, if any part of the statements of those witnesses had to be withheld in public interest, the appropriate authority could, after due application of its own mind, make an order under clause (6) of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest.
In the instant case, the detaining authority, without applying its mind to the nature of the documents, the copies of which were asked for by the detenus, mechanically 352 refused as desired by the Collector, to supply the copies of all the documents.
Indeed, it was on receiving a direction from the Central Government that the copies were supplied.
On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on February 18, 1980, could get the same only on March 27, 1980, i.e., after more than one month.
Thus, there was unreasonable delay of more than a month in supplying the copies to the detenus, of the material that had been relied upon or referred to in the "grounds" of detention.
There was thus an infraction of the constitutional imperative that in addition to the supply of the grounds of detention, all the basic material relied upon or referred to in those "grounds" must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest.
Of course, what is "reasonable expedition" is a question of fact depending upon the circumstances of the particular case.
In the peculiar facts of the instant case, we are of opinion that the delay of more than a month, in supplying the copies of the basic materials and documents to the detenus has vitiated the detention.
It was on this short ground, we, by our order, dated April 23.
had allowed the writ petitions and directed the release of the detention.
N.K.A. Petition allowed.
| IN-Abs | The two detenus were carrying Dn business in diamonds and precious stones.
The Customs Officer at Bombay raided their premises and seized a huge quantity of valuables.
During interrogation they claimed that some of the articles seized were not smuggled goods but were locally acquired and gave names of four persons from whom they were acquired.
The detenus were released on bail by the Magistrate on certain conditions.
An order of detention under section 3(i) of the COFEPOSA, 1974 alongwith the grounds of detention was served on the detenus on Feb. 16, 1980.
The wife of the detenu addressed a letter on Feb. 18, 1980 to the first respondent requesting him to furnish the detenus with the materials relied upon by the detaining authority in the grounds of detention.
The detenu received a letter dated March 14, 1980 from the State Government on March 25, 1980 declining the request for supply of copies.
The detenu had also sent a petition through the Central Government on March 11, 1980 complaining the non supply of copies of the necessary documents and also prayed for the revocation of the order of detention.
On April 3, 1980 the Central Government wrote to the detenu that his request for revocation had been rejected, The Central Government, however, advised the State Government to furnish the detenu with the copies of the required documents.
As a result, the copies were received by the detenu on April 3, 1980.
The detenu had also made a representation to the State Government on March 24, 1980 which, according to the information by the counsel of Respondent No. 1, was declined.
The counsel for the detenus challenged the detention order on the grounds; (i) that the detaining authority callously and deliberately refused to supply the copies of the statements and documents relied upon in the grounds of detention, (ii) the detenu had a constitutional right to be afforded a fair and full opportunity to make an effective representation against their detention and his representation dated March 11, 1980, was wrongly rejected by an unauthorised person.
The respondent argued that (i) the substance of the information required had been incorporated in the grounds of detention ! which were served on the detenus, (ii) the supply of further information would have exposed the informants to bodily harm and the information would have adversely affected the investigation and harmed public interest.
344 Accepting the petition ^ HELD: The very fact that soon after the directions of the Central Government copies were ready and despatched to the detenus within three days thereof, shows that there was no physical difficulty in preparing and supplying the copies to the detenus, with due promptitude.
[349A B] It is well settled that "the constitutional imperatives enacted in Article 22(5) of the Constitution are two fold: (i) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made and (ii) tho detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order.
In the context 'grounds ' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of section 3, nor is its connotation restricted to a bare statement of conclusion of fact.
Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue.
[350B D] The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the ground to the detenu.
In the instant case, the grounds contain only tho substance of the statements, while the detenu had asked for copies of tho full text of those statements.
[350E F] Khudiram Das vs The State of West Bengal & Ors. ; referred to.
The statements supplied to the detenus are their subsequent statements in which they have completely resiled from their earlier statements.
It is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been withheld, could not, by any reckoning, expose those persons to any harm or danger at tho hands of the agents or partisans of the detenus.
If any part of the statements of those witnesses had to be withheld in public interest, the appropriate authority could, after due application of its mind, make an order under clause (6) of Article 22 of the Constitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest.
[351 F G] The detaining authority, without applying its mind to the nature of the documents, the copies of which were asked for by the detenus, mechanically refused as desired by the Collector, to supply the copies of all the documents.
It was on receiving a direction from the Central Government that the copies were supplied.
On account of this chill indifference and arbitrary refusal, the detenu, who had applied for copies on Feb. 18, 1980 could get the same only on March 27, 1980 i.e. after more than one month.
Thus, there was unreasonable delay of more than a month in supplying the copies to the detenus of the material that had been relied upon or referred to in the 'grounds ' of detention.
There was thus an infraction of the constitutional imperative that in addition to the supply of the grounds of detention, all the basic material relied upon or referred to in those 'grounds ' must be supplied to the detenu with reasonable expedition 345 to enable him to make a full and effective representation at the earliest.
What is 'reasonable ' expedition is a question of fact depending upon the circumstances of the particular case.
[351 H, 352 A C] In the peculiar facts of the instant case, the delay of more than a month, in supplying the copies of the basic materials and documents to the detenus has vitiated the detention.
[352 C D]
|
N: Criminal Appeal Nos.
208 209 of 1974.
Appeals by Special Leave from the Judgment and order dated 18/19 1 1974 of the Bombay High Court in Criminal Revision Application Nos.
821/72 and 305/74.
AND SPECIAL LEAVE PETITION (CRL.) No 630 OF 1977.
From the Judgment and order dated 30 6 1972 of the Madhya Pradesh High Court in Crl.
Rev. No. 81/72.
R. K. Garg, B. A. Desai.
V. J. Francis, and D. K. Garg for the Appellant in Crl.
A. Nos. 208 209.
section K. Gambhir and Miss Ram Rikhyani for the Petitioner in SLP No. 630/77.
J. L. Nain and M. N. Shroff for the Respondent in Crl.
Nos. 208 209.
179 The Judgment of the Court was delivered by SARKARIA, J.
These appeals by special leave directed against judgments dated January 17, 1974 and March 29, 1974, of the Bombay High Court, raise, among others, three important questions, namely: (1) Whether an officer of the Railway Protection Force, making an inquiry under the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the 1966 Act, in respect of an offence under Section 3 of that Act of unlawful possession of the railway property, is a Police officer for the purposes of Section 25, Evidence Act and Section 162 of the Code of Criminal Procedure.
1898; and as such.
any confession or incriminating statement recorded by him in the course of an inquiry under Section 9 of the Act is inadmissible in evidence.
(2) Whether a person arrested by an officer of the Railway Protection Force under Section 6 of the Act for the alleged commission of an offence under Section 3 of the Act, is a "person accused of an offence" within the meaning of Article 20(3) of the Constitution.
(3) Whether Section 9 of the Act is violative of Article 14 of the Constitution.
E The appeals arise in these circumstances: The Inspector, Central Intelligence Bureau, Head Quarters, Bombay (Shri P. A. Kakade) filed a complaint before the Presidency Magistrate, 35th Court, Victoria Terminus, Bombay, complaining of the commission of an offence by the appellants, herein, (in Crl.
Appeals 208 and 209 of 1974), under Section 3 of the Act.
The allegations in the complaint, as summarised in the judgment of the High Court in Criminal Revision Application No. 821 of 1973, are as under: On November 21, 1970, the Assistant Security officer, Central Railway, Bhusawal intimated to the Chief Security officer, Bombay V.T. that two wagons Nos.
ERKC 9447 exhibit HSPG BNDN to Akola and Wagon No. ERKC 75531 exhibit were unloaded by Unloading Foreman, one B. D. Raverkar of Akola Goods Shed.
Seventynine M. section Plates (Mild Steel Plates) were unloaded from Wagon No. ERKC 75531.
On November 14, 1970, one Ram Singh who was having R. R. No. 982859 Invoice No. 3 for 78 M.S. Plates and Invoice No. 2 RR No. 892857 for 60 M.S. Plates signed the RRs.
and endorsed the same to M/s. Vallabhaji Brothers, Clearing Agents at Akola Goods Shed for 180 taking the delivery.
Clerk Onkar of the said firm was sent to take delivery.
He took delivery of 78 plates from one J. Meshram after paying the necessary railway dues of Rs. 1,813.80 P., and the 78 Plates were removed by the said party in lorries.
The Delivery of the second consignment of 60 M.S. Plates was taken on November 16, 1970 after paying the railway dues of Rs. 2.247.40 P. The said Ram Singh posed as a proprietor of Modern Industries which was found to be a fictitious firm, which never existed.
The Deputy Commercial Superintendent, Bhusawal, on November 19, 1970, informed all concerned that the delivery from these wagons was obtained on fraudulent Railway Receipts.
The inquiry into this case was entrusted to the Complainant Inspector, P. A. Kakade, who is an officer of the Railway Protection Force.
In the course of that inquiry, the statements of certain persons, including that of Balkishan, appellant herein, were recorded by the said Inspector.
On January 31, 1971, while inquiring into another case of Wadi Bunder in which Balkishan was involved, the Inspector recorded the confessional statement of Balkishan, appellant, herein.
After making that confessional statement, Balkishan is said to have led Inspector Kakade, in the presence of Panchas, to Tulsiram Gupta Mills Estate Compound, wherefrom 35 M.S. Plates were recovered.
The Inspector further discovered that the M.S. Plates were shifted from Devi Dayal 's compound to Nittal Estate, Kurla Andheri Road, Marol Naka and they were transported from there for Devi Dayal 's Estates.
He recorded the statement of Tukaram, the owner of one of these motor trucks on February 7, 1971.
Tukaram stated that his lorry was engaged on November 1, 1971, by the appellant.
In the meantime, investigation regarding the offences of forgery and cheating was being done at Akola by the concerned Police Sub Inspector, who was directed to suspend his inquiry till further orders were received by him.
In the complaint, Inspector Kakade stated that accused 2 and 3 are absconding Annexed to the complaint was a list of prosecution witnesses numbering, in all, 40 and a list of documents numbering 62.
The appellant (accused 1) appeared before the Presidency Magistrate.
He was then supplied the list of prosecution witnesses and the list of documents to be relied upon by the prosecution.
The list of documents included the list of statements of various persons recorded by the Inspector of the Railway Protection Force.
The Presidency Magistrate commenced an inquiry and recorded the 181 statements of four witnesses, of one on March 2, 1973 and of the other three on June 12, 1973.
On June 11, 1973, an application was filed by the appellant to the Magistrate, making a grievance that although three witnesses had been examined, no copies of the documents were furnished to him by the prosecution.
On June 25, 1973, the appellant made a further application to the Magistrate, requesting for supply of true copies of all the documents in the case to enable him to prepare his defence.
He further prayed that he should be allowed to take photostats of all the documents in the presence of the court officer.
The Magistrate on August 3, 1973, passed an order rejecting the accused 's application, dated June 11, 1973, on the ground that the offence complained of against him was non cognizable and the provisions of Section 251A of the Code of Criminal Procedure were not applicable, and consequently.
he (accused 1) had no right to obtain copies of the documents concerned.
The Magistrate further passed an order on August 3, 1973.
declining to allow the accused to take photostats of all the documents, on the ground that the documents could not be allowed to be taken outside the court.
He, however, added that "if any request to secure the photostat copies in the Court comes, it will be considered".
On August 24, 1973, the Magistrate framed a charge under Section 3(a) of the Act to the effect? that on or after November 14, 1970 the accused was found in possession of M.S. Plates numbering about 110, which were the Railway property unlawfully possessed by him.
The accused pleaded 'not guilty ' and again made an application repeating his request for copies of the statements of witnesses recorded by Inspector Kakade.
He also prayed that he be allowed to inspect all the statements recorded by the prosecution and take copies thereof.
The Magistrate rejected this application, also, by an order on September 7, 1973.
Feeling aggrieved by the orders passed by the Magistrate on August 9. 1973 and September 7, 1973, and the framing of the charge against him, the appellant invoked the inherent jurisdiction of the High Court by a petition under Section 561A of the Code of Criminal Procedure, 1898, and prayed that the said orders be quashed.
In this petition, he challenged the constitutional validity of Section 9 of the Act.
The petition was heard by a Bench consisting of Vaidya and Gandhi, JJ.
The learned Judges answered all the questions, posed above, in the negative.
But, on the other aspects of the case, the Assistant Government Pleader, appearing on behalf of the State, stated before the High Court that the prosecution did not desire to keep back 182 any material from the accused and that they would produce copies of statements of all the witnesses and the documents on which the prosecution intends to rely or which the accused wanted to examine.
In view of this statement of the Government Pleader, the High Court set aside the orders of the Magistrate and directed the complainant under Section 165 of the Evidence Act to produce in the trial court the true copies of the statement of the witnesses already examined and to be examined hereafter By the complainant and of the documents on which the complainant desired to depend.
The High Court further declared that the accused and his counsel shall be entitled to inspect those documents and take copies thereof, if necessary, in the court.
If further declared that Section 9 of the Act, is not ultra vires the Constitution.
Hence, these appeals by the accused persons.
Question No. 1 The first question for consideration is.
whether an Inspector of the Railway Protection Force, (for short, RPF) is a "police officer", and therefore any confessional statement made to him comes within the prohibition of Section 25.
Evidence Act.
Section 25 reads thus: "No confession made to a police officer shall be proved as against a person accused of any offence.
" As explained by this Court in Ariel vs State the policy behind Sections 25 and 26.
Evidence Act is to make a substantive rule of law that confessions whenever and wherever made to the police shall be presumed to have been obtained under the circumstances mentioned in p Section 24 and, therefore, inadmissible except so far as is provided in Section 27, of that Act.
The term "Police officer" has not been defined in the Evidence Act.
Shri R. K. Garg, appearing for the appellant, submits that the expression "police officer" in Section 25, Evidence Act must be construed in a wide popular sense, so as to include within its ambit all officers of Government who are, in substance, invested with the power to investigate certain offences in accordance with the provisions of the Code of Criminal Procedure 1898 (for short, called the Code).
irrespective of the fact that they are differently labelled such as, Excise officers or Customs officers or members of the RPF, otherwise, the very object of Section 25 will be defeated.
In support of this contention, the learned counsel has referred to the decision of this Court 183 in Raja Ram Jaiswal vs State of Bihar.
The point pressed into argument is that an Inspector of the RPF making an inquiry under the Railway Property (Unlawful Possession) Act.
1966 into an offence under Section 3 of that Act, in substance.
acts and exercises almost all the powers of a 'Police officer ' making an investigation under the Code of Criminal Procedure.
If that be the correct position proceeds the argument any confessional statement recorded by such Inspector will be hit by section 25, Evidence Act, and if that statement falls short of a 'confession ', then also, it will not be admissible in evidence against its maker, at his trial because of the bar in section 162.
Criminal Procedure Code.
As against the above, Shri Nain submits that an officer of the RPF while making an inquiry under the 1966 Act cannot be equated with a Police officer in charge of a Police Station making an investigation under the Code.
One important difference in their powers is, that the RPF Inspector has no power to submit a report or chargesheet under section 173 of the Code.
Shri Nain has further pointed out that Raja Ram Jaiswal 's case stands on its own peculiar facts, and was distinguished in a later decision by a Constitution Bench of this Court in Badku Joti Savant vs State of Mysore.
According to Shri Nain, the correct test for determining whether or not a RPF officer is a 'Police officer ' for the purpose of section 25.
Evidence Act, is the one which was consistently applied in State of Punjab vs Barkat Ram; Badku Joti Savant (ibid); Romesh Chandra Mehta vs West Bengal.
To top it all, it is maintained, the question is now no longer res integra and has been concluded by the recent judgment of this Court in State of U.P. vs Durga Prasad.
In reply, Shri R.K. Garg has tried to distinguish Durga Prasad 's case, ibid, on the ground, that therein the question whether or not an officer of the RPF is a Police officer within the contemplation of section 25 of the Evidence Act, was not directly in issue.
It is maintained that the only question for decision in that case was.
Whether an enquiry conducted under section 8(1) of the 1966 Act can be deemed to be an investigation for the purpose of section 162 of the Code of Criminal Procedure.
and this question was answered in the negative.
In the alternative, it is urged that Durga Prasad 's case was not correctly decided and its ratio needs reconsideration by a larger Bench because it has overlooked the test laid down by the 3 Judge Bench in Raja Ram laiswal 's case.
184 Although Durga Prasad 's case very largely appears to conclude this question, yet, in deference to the last argument of Shri Garg, we propose to deal with the other decisions of this Court.
which have been referred to by counsel on both sides.
At the outset, for the sake of perspective, we may notice the relevant provisions of the 1966 Act and the Railway Protection Force Act ]957 (for short called the 1957 Act).
First we will notice the relevant features of the 1957 Act whereunder the RPF was constituted.
The preamble of the 1957 Act states that its object is to provide for the constitution and regulation of a Force called the Railway Protection Force for the better protection and security of railway property.
The various clauses in Section 2 contains definitions.
The definition of "railway property" in clause (e) "includes any goods, money or valuable security, or animal, belonging to, or in the charge or possession of.
a railway administration." "Member of The Force" means "a person appointed to the Force under this Act other than a superior officer".
Clause (c) "superior officer" means any of the officers appointed under section 4.
Clause (g) says that the words and expressions used but not defined in this Act and defined in the Indian Railways Act 1890, shall have the meanings respectively assigned to them under that Act.
Section 3 gives powers to the Central Government to constitute and maintain the Force.
Section 5 enumerates the classes of officers; Inspector/Sub Inspector/Assistant Sub Inspector.
Section 10 says that the officers and members of the Force shall be deemed to be 'railway servants ' within the meaning of the Indian Railways Act.
Section 11 is important.
It enumerates That, the duty of every superior officer and member of the Force shall be (a) promptly to execute all orders lawfully issued to him by his superior authority; (b) to protect and safeguard railway property; (c) to remove any obstruction in the movement of railway property; and (d) to do any other act conducive to the better protection and security of railway property.
Section 12 enables any superior officer or member of the Force to arrest, without an order from a Magistrate and without a warrant "(a) any person who has been concerned in an offence relating to railway property punishable with imprisonment for a term exceeding six months, or against whom a reasonable suspicion exists of his having been so concerned; or 185 (b) any person found taking precautions to conceal his presence within railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of, or damage to, railway property.
" Section 13 provides: "Whenever any superior officer, or any member of the Force, not below the rank of a Senior Rakshak, has reason to believe that any such offence as is referred to in section 12 has been nor is being committed and that a search warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence, he may detain him and search his person and belongings forthwith and, if he thinks proper, arrest any person whom he has reason to believe to have committed the offence.
Under sub section (2), the provisions of the Code, relating to searches under that Code shall, so far as may be, apply to searches under this section.
Section 14 indicates the procedure to be followed after arrest.
According to it, any superior officer or member of the Force making an arrest under this Act, shall without unnecessary delay.
make over the person arrested to a police officer, or, in the absence of a Police officer, take such person or cause him to be taken to the nearest police station.
Section 17 provides penalties for neglect of duty, etc.
Section 20 gives protection to a member of the Force for any act done by him in the discharge of his duties.
Section 21 gives powers to the Central Government to make rules for carrying out the purposes of this Act.
Clause (b) of sub section (2) of this section says that such rules may provide, inter alia, for regulating the powers and duties of superior officers and members of the Force authorised to exercise any functions by or under this Act.
From the above survey, it will be seen that the primary object of constituting the Railway Protection Force is to secure better "protection and security of the railway property." The restricted power of arrest and search given to the officers or members of the Force is incidental to the efficient discharge of their basic duty to protect and safeguard Railway Property.
No general power to investigate all cognizable offences relating to Railway Property, under the Criminal Procedure Code has been conferred on any superior officer or member of the Force by the 1957 Act.
Section 14 itself makes it clear that even with regard to an offence relating to 'railway property ', the superior officer or member of the Force making an arrest under section 13 shall forthwith make over the person arrested to a police officer, or cause his production in the nearest police station.
Now, we will take up the 1966 Act, which came into force on September 16, 1966.
As is evident from its preamble, it is an Act to consolidate and amend the law relating to unlawful possession of 186 Railway Property.
The material part of the objects and Reasons for moving the Bill which became this Act, is as under: "2.
At present, offences against Railway property are being dealt with under Railway Stores (Unlawful Possession) Act, 1955, but this Act has been found, by experience, to be ineffective in tackling with the enormity of the problems of theft and pilferages on Railways.
As it is, this Act makes unlawful possession of Railway Stores an Defence, but it is only applicable to unlawful possession of Railway property owned by the Railways, and does not cover the offences relating to goods and parcels entrusted to Railways for transport.
Further, the offences under this Act are investigated and enquired into by local police in accordance with the provisions of the Code of Criminal Procedure, 1898.
It has been observed that the two Agencies, i.e. the Government Railway Police and Railway Protection Force, which are at present provided to deal with crimes on railways find themselves handicapped, for different reasons, in effectively dealing with the problem of theft and pilferage of Railway Property.
The Railways are spread out over a large part of the country and property, etc., entrusted to them is carried from one part to another usually crossing boundaries of different states.
The jurisdiction of State Police being restricted to the State boundary only, it becomes difficult at times for the Police to make thorough and fruitful investigation into offences relating to Railway Property.
Besides, investigation of cases in respect of Railway Property also requires a specialised knowledge of Railway working.
The Railway Protection Force, on the other hand, are not at present equipped with requisite powers of investigation and prosecution, with the result that whatever action they take in respect of prevention etc., is taken just in aid of the State Police who conduct investigation and prosecution etc.
Due to this fact of two agencies being responsible for achieving the same object, the machinery has not proved as effective as it ought to have.
4, It is, therefore, proposed to replace the Railway Stores (Unlawful Possession) Act, 1955, by a more comprehensive Act so as to bring with its ambit the unlawful possession of goods entrusted to the Railways as common carriers and to make the punishment for such offences more deterrent.
It is also proposed to invest powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in the Excise and Customs." (emphasis added) 187 From what has been quoted above, it is clear that the main purpose of passing the 1966 Act was to "invest powers of investigation and prosecution" of offences relating to railway property in the RPF "in the same manner as in the Excise and Customs".
We will advert to this point later.
Suffice it to say here that in view of the aforesaid object of enacting the 1966 Act.
the decisions of this Court on the question as to whether an Excise officer/Customs officer is a "Police officer", within the purview of section 25, Evidence Act, or section 162, Criminal Procedure Code, assume analogical importance for the purpose of deciding the precise question before us.
The various clauses of section 2 of the 1966 Act, contain definitions.
Clause (c) defines "officer of the Force" to mean "an officer of and above the rank of Assistant Sub Inspector appointed to the Force and includes a superior officer.
" The definition of "railway property" in clause (d) has been expanded so as to include goods entrusted to the Railway for carriage or transport, belonging to another person.
Section 3 provides: "Whoever is found.
Or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully be punishable (a) for the first offence with imprisonment for a term which may extend to five years, or with fine, or with both and; in the absence of .
special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees; and (b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees".
It will be seen that if any person is found or proved to be in possession of any 'railway property ', which is reasonably suspected of having been stolen or unlawfully obtained, the burden shall shift on to that person to prove his innocence, that is to say, to establish that he came into possession of the 'railway property ' lawfully.
Section 4 provides punishment for persons wilfully conniving at an offence under the provisions of this Act.
188 Section 5 says: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable".
It may be noted that in spite of provision in the Code of Criminal Procedure to the contrary, offences under this Act have been made non cognizable and, as such, cannot be investigated by a police officer under the Code.
It follows that the initiation of prosecution for an offence inquired into under this Act can only be on the basis of a complaint by an officer of RPF and not on the report of a police officer under section 173(4) of the Criminal Procedure Code, 1898.
Section 6 gives powers to any superior officer or member of the Force to arrest without an order from a Magistrate and without a warrant, any person who has been concerned in an offence punishable under this Act, or against whom a reasonable suspicion existed of his having been so concerned.
Section 7 of the Act provides that the procedure for investigation of a cognizable offence has to be followed by the officer before whom the accused Person is produced.
Reading section 7 of the 1966 Act with that of section 14 of the 1957 Act, it is clear that while in the case of a person arrested under section 12 of the 1957 Act the only course open to the superior officer or member of the Force was to make over the person arrested to a police officer, in the case of a person arrested for a suspected offence under the 1966 Act, he is required to be produced without delay before the nearest officer of the Force, who shall obviously be bound (in view of Article 22(1) of the Constitution) to produce him further before the Magistrate concerned.
Section 8 of the 1966 Act is new.
It provides for an inquiry to be made against the arrested persons.
According to it, when any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under section 7, he shall proceed to inquire into the charge against such person.
It is to be noted that such power of inquiry, has been conferred on an officer of the Force, although he is not an officer incharge of a police station as envisaged by section 173 of the Code of Criminal Procedure, Sub section (2) of this section confers on the officer of the Force "the same powers" for the purpose of the inquiry under sub section (1) and subject to the same provisions "as the officer incharge of a police station may exercise and is subject under the Code of.
Criminal Procedure, 1898 when investigating a cognizable case.
" Then there is a proviso which says: 189 "Provided that (a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior.
" Section 9 gives powers to an officer of the Force to summon persons to give evidence and produce documents, or any other thing in any inquiry for any of the purposes of this Act.
Sub sections (3) and (4) provide: "(3) All persons, so summoned, shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemption under section 132 and 133 of the Code of Civil Procedure, 1908, shall be applicable to requisitions for attendance under this section." "(4) Every such inquiry as aforesaid shall be deemed to be a 'judicial proceeding ' within the meaning of section 193 and section 228 of the Indian Penal Code." Section 10 enables an officer of the Force, having reason for the requisite belief to apply for a search warrant to the Magistrate.
Section 11 provides that searches and arrests shall be in accordance with the provisions of the Code.
Section 14 makes it clear that the provisions of the Act shall override all other laws.
This means that if there is anything in the 1966 Act which is inconsistent with the Code, then on that point, the 1966 Act will prevail and the application of the Code pro tanto will be excluded.
The most important example of such exclusion, as already noticed, is to be found in section 5 of the 1966 Act which makes as offence under this Act non cognizable, notwithstanding anything in the Code.
This clearly shows that the provisions of the Code cannot 190 proprio vigore apply to an enquiry conducted under section 8(1) of the 1966 Act by an officer of the Force.
Further, section 6 of the 1966 Act empowers an officer or member of the Force to arrest without a warrant and without an order of the Magistrate any person concerned, or reasonably suspected of being concerned in an offence under the 1966 Act.
This again is contrary to the scheme and content of the Code which must give way to the 1966 Act in this matter.
The third material aspect in which an inquiry under the 1966 Act, differs from investigation under the Code, is to be found in Section 9(3) whereunder persons summoned to, appear in the inquiry are expressly mandated to state the truth.
In contrast with this, Section 160 of the Code does not expressly bind persons examined in Police investigation, to state the truth.
The inquiry under Section 8(1) of the 1966 Act in view of Section 9(4) shall be deemed to be a judicial proceeding for the purpose of Sections 193 and 228 of the Penal Code.
But a police investigation under Section 160 of the Code does not partake of the character of a judicial proceeding for any purpose and a witness examined during such investigation cannot be prosecuted under Section 193, Penal Code.
The fourth important aspect in which the power and duty of an officer of the RPF conducting an inquiry under the 1966 Act, differs from a police investigation under the Code, is this Sub section (3) of Section 161 of the Code says that the police officer may reduce into writing any statement made to him in the course of investigation.
Section 162(1), which is to be read in continuation of Section 161 of the Code, prohibits the obtaining of signature of the person on his statement recorded by the investigating officer.
But no such prohibition attaches to statements recorded in the course of an inquiry under the 1966 Act; rather, from the obligation to state the truth under pain of prosecution enjoined by Section 9(3) and (4), it follows as a corollary, that the officer conducting the inquiry may obtain signature of the person who made the statement.
Fifthly, under the provision to sub section (1) of Section 162 of the Code, oral or recorded statement made to a police officer during investigation may be used by the accused, and with the permission of the Court, by the prosecution to contradict the statement made by the witness in Court in the manner provided in Section 145, Evidence Act, or when the witness ' statement is so used in cross examination, he may be reexamined if any explanation is necessary.
The statement of a witness made to a police officer during investigation cannot be used for any other purpose, whatever, except of course 191 when it falls within Sections 32 or 27 of he Evidence Act.
The prohibition contained in Section 162 extends to all statements, confessional or otherwise during a police investigation made by any person whether accused or not, whether reduced to writing or not, subject to the proviso.
In contrast with the Code, in the 1966 Act, there is no provision analogous to the proviso to Section 162(1) of the Code, which restricts or prohibits the use of a statement recorded by an officer in the course of an inquiry under Sections 8 and 9 of the Act.
Sixthly, the primary duty of a member/officer of RPF is to safeguard and protect railway property.
Only such powers of arrest and inquiry have been conferred by the 1966 Act on members of RPF as are necessary and incidental to the efficient and effective discharge of the basic duty of watch and ward.
Unlike a police officer who has a general power under the Code to investigate all cognizable cases, the power of an officer of the RPF to make an inquiry is restricted to offences under the 1966 Act.
Last but not the least, under Section 190 of the Code, a Magistrate is empowered to take cognizance of an offence only in three ways, namely, (a) "upon receiving a complaint of facts which constitute an offence; (b) upon a report in writing of such facts made by any police officer, and (c) upon information received from any person other than a Police officer, or upon his own knowledge or suspicion, that such offence has been committed".
The 'report ' mentioned in clause (b), includes the report made by a police officer under Section 173 after completing investigation under Chapter XIV of the Code.
Section 173, in terms makes is clear that the duty of making a report thereunder on completion of the investigation to the Magistrate, is that of the officer in charge of the police station.
Such a report shall include the opinion of the police officer as to the result of the investigation.
The formation of such opinion is the final step in the investigation and that final step is to be taken by the police officer in charge of the station and by no other authority (Abhinandan Jha vs Dinesh Mishra).
An officer of the RPF making an inquiry under the 1966 Act, cannot, by any stretch of imagination, be called an "officer in charge of a Police Station" within the meaning of Sections 173 and 190(b) of the Code.
The made of initiating prosecution by submitting a report under Section 173 read with clause (b) of Section 190 of the Code is, therefore, not available to an officer of the RPF who has completed an inquiry into an offence under the 1966 Act.
The only mode of initiating prosecution of the 192 person against whom he has successfully completed the inquiry, available to an officer of the RPF, is by making a complaint under Section 190(1)(a) of the Code to the Magistrate empowered to try the offence.
That an officer of the Force conducting an inquiry under Section 8(1) cannot initiate proceedings in court by a report under Sections 173/190(1)(b) of the Code, is also evident from the provisos to sub section (2) of Section 8 of the 1966 Act.
Under proviso (a), if such officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he shall either direct him (after admitting him to bail) to appear before the Magistrate having jurisdiction or forward him in custody to such Magistrate.
Under proviso (b), if it appears to he officer that there is no sufficient evidence or reasonable ground of suspicion against the accused, he shall release him on bond to appear before the Magistrate concerned "and shall make a full report of all the particulars of the case to his superior officer".
Provisos (a) and (b) put it beyond doubt that where after completing an inquiry, the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must initiate prosecution of the accused by making a complaint under Section 190(1) (a) of the Code to the Magistrate competent to try the case.
From the comparative study of the relevant provisions of the 1966 Act and the Code, it is abundantly clear that an officer of the RPF making an inquiry under Section 8(1) of the 1966 Act does not possess several important attributes of an officer in charge of a police station conducting an investigation under Chapter XIV of the Code.
The character of the 'inquiry ' is different from that of an 'investigation ' under the Code.
The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the Code.
The ground is now clear for noticing the rulings cited at the Bar.
In State of Punjab vs Barkat Ram (ibid), the question was whether a Customs officer can be regarded as a 'police officer ' within the purview of Section Evidence Act.
This decision was rendered by a Bench of three learned Judges.
The judgment of the Court was delivered by majority (consisting of Raghubar Dayal and J.L. Kapur JJ.).
Subba Rao J. (as he then was wrote a dissenting opinion.
The view taken by the Court Majority was to the effect: "that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order.
Although the expression 'police officer" has to be construed in a wide and popular sense, yet it has not 193 so wide a meaning as to include officers interested in the duty of detecting and preventing smuggling and similar offences with the object of safeguarding the levying and recovery of Customs duties.
He is more concerned with the goods and customs duty than with the offender.
The duties of customs officers are very much different from those of police officers and their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers.
Merely because similar powers in regard to the detection of infraction of Customs laws have been conferred on officers of the Police is not a sufficient ground for holding them to be police officers within the purview of Section 25 of the Evidence Act.
The Customs officers, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially.
The Police officers never act judicially.
Hence, a Customs officer either under the , or under the , is not a police officer for the purpose of Section 25, Evidence Act.
" In his dissenting opinion, Subba Rao J., held that Section 25, Evidence Act was enacted to subserve a high purpose and that is to prevent the police from obtaining confession by force, torture or inducement.
The salutary principle underlying the Section would apply equally to other officers, by whatever designation they may be known, who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confessions from the accused It is not the garb or the designation under which the officer functions that matters, but the nature of the power he exercises or the character of the function he performs, is decisive.
The question therefore, in each case is, does the officer under a particular Act substantially exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer.
The learned Judge quoted with approval the view of Balakrishna Ayyar, J. in Paramasivam 's case that if the officer 's powers and duties are substantially those of a police officer, but are confined to a particular extent of territory or to a particular subject matter he will be a police officer only in respect of that territory or that subject matter.
On this reasoning, Subba Rao J. held that a Customs officer is a police officer qua his police functions.
The next case is Raja Ram Jaiswal (ibid) decided by a three Judge Bench.
There, the question was, whether an Excise officer 194 exercising the power of investigation under the Bihar and Orissa Excise Act, 1915, is a 'police officer ' within the meaning of Section 25, Evidence Act, Mudholkar, J. speaking for himself and Subba Rao, J., answered this question in the affirmative.
What the majority held in that case may be summed up as under: The test for determining whether a person is a "police officer" for the purpose of Section 25, Evidence Act would be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by Section 25, Evidence Act, that is, the recording of a confession.
In other words, whether the powers conferred on the Excise officer under the Act are such as would tend to facilitate the obtaining by him of a confession from a suspect delinquent.
If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys.
It was further held that unlike the Customs officer on whom are conferred by the , powers of a limited character, which are analogous to those conferred on police officers, are not by themselves sufficient to facilitate the obtaining by him of a confession.
It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be incriminating to the persons making them.
The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offences.
But, it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them.
It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25.
Therefore, where such a power is conferred upon an officer, the mere fact that he possesses some other powers under another law would not make him any the less a police officer for the purposes of Section 25.
Hence, a confession made by an accused under the Bihar and Orissa Act, recorded by an Excise Inspector who is empowered to investigate any offence under the Act, is inadmissible by reasons of the provisions of Section 25 of the Evidence Act.
Raghubar Dayal, J., however, expressed a contrary opinion.
He held that the Excise Inspectors empowered by the State Government under Section 77(2) of the Bihar Act, are not 'police officers ' within the meaning of Section 25 of the Evidence Act and that the aforesaid officers cannot be treated to he police officers for the purposes of Section 162 of the Code of Criminal Procedure, Section 162 does not 195 confer any power on a police officer.
It deals with the use which can be made of the statements recorded by a police officer carrying out investigation under Chapter XIV of the Code.
The investigation which the aforesaid Excise officer conducts is not under Chapter XIV of the Code, but is under the provisions of the Act and therefore, this is a further reason for non applicability of Section 162 of the Code to any statements made by a person to an Excise officer during the course of his investigating an offence under the Act.
Although in Raja Ram Jaiswal 's case, the majority judgment distinguished the earlier decision in Barkat Ram 's case on the ground that therein, the question whether officers of departments other than the police on whom powers of an officer in charge of a police station under clause 14 of the Code of Criminal Procedure are conferred are police officers or not for the purpose of Section 25, Evidence Act, was left open and undecided, yet the fact remains that some of the criteria adopted by the majority in Barkat Ram 's case in arriving at the decision they did, in a Customs officer 's case was rejected and the test indicated by Subba Rao, J. in his minority judgment was substantially approved.
Be that as it may, on facts, the distinguishing feature of Raja Ram Jaiswal 's case was that under the Bihar Excise Act, the powers of an officer in charge of a Police Station were expressly conferred on the Excise officer concerned in respect of the area to which he was appointed.
The question whether a Deputy Superintendent of Customs and Excise was a 'police officer ' within the meaning of Section 25, Evidence Act, again came up for consideration before a Constitution Bench in Badku Joti Savant 's case, ibid.
, Wanchoo, J. who delivered the unanimous opinion of the Bench, answered this question (at page 701), thus: "There has been difference of opinion among the High Courts in India as to the meaning of the words "police officer" used in Section 25 of the Evidence Act.
One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned.
The leading case i support of this view is Nanoo Sheikh Ahmed vs Emperor.
This view approved by Subba Rao J. in his minority judgment in Barkat Ram 's case).
The other view which may be called the 196 narrow view is that the words "police officer" in Section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences, and so on.
The leading case in support of this view is Radha Kishun Marwari vs King Emperor.
The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court.
We shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various provisions of the Act to which we turn now. (After examining some provision of the Central Act 1 of 1944, the judgment proceeded)".
"It is urged that under sub section (2) of Section 21 a Central Excise officer under the Act has all the powers of an officer in charge of a police station under Chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in Section 25 of the Evidence Act.
It is true that sub section (2) confers on the Central Excise officer under the Act the same powers as an officer in charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub section (1) which gives power to a Central Excise officer to whom any arrested person is forwarded to inquire into the charge against him.
Thus under section 21 it is the duty of the Central Excise officer to whom an arrested person is forwarded to inquire into the charge made against such person.
Further under proviso (a) to sub section {2) of section 21 if the Central Excise officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate.
It does not however appear that a Central Excise officer under the Act has power to submit a charge sheet under Section 173 of the Code of Criminal Procedure.
Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed.
197 police officer for purposes of clause (b) above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise officer will have to make a complaint under clause (a) above if he wants the Magistrate to take cognizance of an offence, for example, under Section 9 of the Act.
Thus though under sub section (2) of Section 21 of the Central Excise officer under the Act has the powers of an officer in charge of a police station when investigating a cognizable case that is for the purpose of his inquiry under sub section (1) of Section 21.
" The Court then distinguished Raja Ram Jaiswal 's case, thus: "Section 21 (of the Central Excises and Salt Act No. 44) is in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915, which came to be considered in Raja Ram Jaiswal 's case, and which provided in terms that "for the purposes of Section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under Section 77, Sub section (2), is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station".
It, therefore, cannot be said that the provision in Section 21 is on par with the provision in Section 78(3) of the Bihar and Orissa Excise Act.
All that Section 21 provides is that for the purpose his inquiry, a Central Excise officer shall have the powers of an officer in charge of a police station when investigating a cognizable case.
But even so it appears that these powers do not include the power to submit a charge sheet under Section 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise officer is not deemed to be an officer in charge of a police station.
" On the above reasoning, the Court concluded that "mere conferment of powers of investigation into criminal offences under Section 9 of the Act does not make the Central Excise officer a police officer even in the broader view mentioned above".
Following the decisions in Punjab State vs Barkat Ram (ibid), and Badku Joti Savant vs Mysore State (ibid), a Constitution Bench of this Court, in Ramesh Chandra vs State of West Bengal (ibid), reiterated that the test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173, Code of Criminal Procedure.
Applying this test, the Court held that since a Customs officer exercising power to make an inquiry cannot submit a report under Section 198 173 of the Code, he is not a police officer within the meaning of Section 25 of the Evidence Act.
Again in Illias vs Collector of Customs, this Court held that although a Customs officer under the , has been invested with many of the powers similar to those exercisable by a police officer under Chapter XIV of the Code which he did not have under the old Act yet he is not empowered to file a chargesheet under Section 173 of the Code and therefore, he cannot be regarded as a "police officer" within the meaning of Section 25, Evidence Act.
Shri Garg tried to distinguish these cases on the ground that they relate to Customs officers or Excise officers whose primary duties are to collect and prevent evasion of revenues, and that some of the powers of a police officer are conferred on them merely for the effective discharge of their duties as revenue officers.
It is submitted that the members of the RPF are not revenue officers and their duties are confined to the protection of railway property, and prevention, detection and investigation of crimes relating to 'railway property '.
Relying on the decision in Raja Ram Jaiswal 's case, it is urged that the real test to be applied for determining this question, is, whether the police powers conferred on an officer of the RPF are such as would tend to tempt or facilitate the obtaining by him a confession from a person suspected of the commission of an offence under the 1966 Act.
It is argued that since an officer of the RPF conducting an inquiry has been invested qua 'railway property ' with almost all the powers or an officer in charge of a Police Station making an investigation under Chapter XIV of the Code, this test is amply satisfied to hold that he is a 'police officer ' within the meaning of Section 25 of the Evidence Act.
At one stage, it was contended by Shri Garg that it could be spelled out from Section 8(2) of the 1966 Act that an officer of the Force had the power to present a charge sheet under Section 173 of the Code, also.
In the alternative, it was submitted that the mere fact that an officer of the Force could initiate prosecution only by filing a complaint and not by making a report under Section 173 of the Code, was immaterial in regard to the satisfaction of This test, if, in fact, he had been invested with all other powers of investigation exercisable by a police officer under the Code, qua offences under the 1966 Act.
Prima facie there is much to be said for the reasoning advanced by the learned counsel for the appellant, but as a matter of judicial discipline we cannot deviate from the ratio of Punjab State vs Barkat 199 Ram and Badku Joti Savant 's case, and the primary test enunciated therein for determining this question.
Indeed, we are bound by the decision in State of U.P. vs Durga Prasad (ibid) which, following the ratio of the aforesaid cases, has held that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act, cannot be equated with an officer in charge of a Police Station making an investigation under Chapter XIV of the Code.
It may be recalled that the primary test evolved in Badku Joti Savant 's case by the Constitution Bench, is: Whether the officer concerned under the special Act, has been invested with all the powers exercisable by an officer in charge of a Police Station under Chapter XIV of the Code, qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (chargesheet) under Section 173 of the Code.
In order to bring him within The purview of a 'police officer ' for the purpose of Section 25.
Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code.
Nor is the ratio of the aforesaid decisions inapplicable merely because they related to a Customs officer or an Excise officer, and not to an officer of the RPF.
The factual premises on which the ratio of Badku Joti Savant 's rests were substantially analogous to those of the instant case.
That is to say, the powers of arrest, inquiry and investigation conferred on the Central Excise officers under Act 1 of 1944 (which was under consideration in that case) are very similar to those with which an officer of the RPF is invested under the 1966 Act.
Under Section 13 of that Act of 1944, any Central Excise officer duly empowered by the Central Government in this behalf can arrest any person whom he has reason to believe to be liable to punishment. 'Section 18 provides that all searches made under that Act or any rules made thereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898.
Section 19 of that Act lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise officer empowered to send person so arrested to a Magistrate, or, if there is no such Central Excise officer within a reasonable distance, to the officer in charge of the nearest police station.
Section 21 of the Act provides: "(1) When any person is forwarded under Section 19 to a Central Excise officer empowered to send persons so arrested to a Magistrate, the Central Excise officer shall proceed to inquire into the charge against him.
200 (2) For this purpose the Central Excise officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case.
" It will be seen that these provisions in Sections 13, 18, 19 and 21 of the Central Act I of 1944, substantially correspond to the provisions in Sections 6, 7, 8 etc.
Of the 1966 Act, which we have already noticed It will bear repetition that sub section 12) of section 8, under which an officer of the Force conducting an inquiry may exercise the same powers as an officer in charge of a police station investigating a cognizable case under the Code, is in pari materia with sub section (2) of Section 21 of Act 1 of 1944.
It may be recalled that in the objects and Reasons of the Bill, which was enacted as 1966 Act, it was stated that this measure invests "powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in the Excise and Customs".
The 1966 Act thus brings the status of officers of the RPF in the matter of inquiry, investigation and prosecution of offences under the Act substantially at par with that of an Excise officer under the Central Act 1 of 1944 and that of a Customs Officer under the .
The ratio of all the decisions noticed earlier, therefore, applies in full force to the case of an officer of the RPF making an inquiry into an offence under the 1966 Act.
In State of U.P. vs Durga Prasad (ibid), after carefully examining and comparing the powers of arrest, inquiry and investigation of an officer of the Force under the 1966 Act with those of a police officer under he Code, it was pointed out that such an officer of the RPF does not possess all the attributes of an officer in charge of a police station investigating a case under Chapter XIV of the Code.
He possesses but a part of those attributes limited to the purpose of holding the inquiry under the Act.
On these premises, it was held that an officer of the RPF making an inquiry under the 1966 Act, cannot be equated with an investigating police officer.
In reaching this conclusion, Chandrachud, J. (as he then was), speaking for the Court, appears to have applied the same test which was adopted in Badku Joti Savant 's case, when he observed: "The right and duty of an investigating officer to file a police report or a charge sheet on the conclusion of investigation is the hallmark of an investigation under the Code.
Section 173(1)(a) of 201 the Code provides that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.
The officer conducting an inquiry under Section 8(1) cannot initiate court proceedings by filing a police report.
" The decision in Raja Ram Jaiswal 's case, on which Shri Garg relies, was distinguished, as was done in Badku Joti Savant 's case, on the ground that Jaiswal 's case involved the interpretation of Section 78(3) of the Bihar and Orissa Excise Act, 1915.
In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code.
Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer '.
Thus, judged by the test laid down in Badku Jyoti Savant 's, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer ' within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.
This takes us to the second question.
Question II The main contention of Shri Garg is that any confessional or incriminating statements recorded by an officer of the Force in the course of an inquiry under section 8(1) of the 1966 Act, cannot be used as evidence against the appellant in view of the constitutional ban against "compelled testimony" imposed by Article 20(3) of the Constitution.
The argument is that as soon as a person is arrested by an officer of the Force on a suspicion or charge of committing an offence punishable under the 1966 Act, he stands in the character of a "person accused of an offence".
That being the case proceeds the argument a statement made by such an accused person to an officer of the RPF making an inquiry against him can never be said to be voluntary, being subject to a legal compulsion under Section 9(3) of the 1966 Act to state the truth 202 upon any subject respecting which he is examined even if such state of might incriminate him.
On these premises it is maintained that both the conditions necessary for attraction of the ban in Article 20(3) of the Constitution exist in the case of such statements.
In this connection, Shri Garg has referred to the dissenting judgment of Subba Rao, J. in Barkat Ram (ibid); Kathi Raning Rawat vs The State of Saurashtra; K. Joseph Augusthi & Ors.
vs M.A. Narayanan; Mohamed Dastagir vs The State of Madras; Bhagwan Das vs Union of India; Ramanlal Bhogilal Shah & Anr.
vs D.K. Guha & Ors.; M.P. Sharma vs Satish Chandra; Smt.
Nandini Satpathy vs P.L. Dani & Anr.
; and In re The Special Courts Bill.
As against this, Mr. Nain, appearing for the respondent State, submits that the conditions necessary for the attraction of the ban in Article 20(3) do not exist in the instant case, because before the filing of the complaint in the Court, the appellant was not a "person accused of an offence".
It is further urged that the compulsion contemplated by Clause (3) of Article 20 means "physical or mental compulsion" and not compulsion of law to state the truth; that freedom to tell lies is not within the protection of this clause.
It was nowhere alleged that the confessional or incriminating statements in question were extorted by the RPF officer under physical duress, threat, inducement or mental torture.
It is added that in any case, it is a question of fact to be established by evidence that any such compulsion was used in obtaining the incriminating statements.
Clause (3) of Article 20 of the Constitution reads, thus: "No person accused of any offence shall be compelled to be a witness against himself.
" An analysis of this clause shows three things: Firstly, its protection is available only to a "person accused of any offence".
Secondly, the protection is against compulsion "to be a witness".
Thirdly, this protection avails "against himself".
It follows that if any of these ingredients does not exist, this clause (3), will not be attracted.
Keeping this in mind, it will be appropriate to concentrate on the first point, as to whether during the inquiry 203 under Section 8 of the 1966 Act when the appellant made the incriminating statement in question, he was a "person accused of any offence" within the contemplation of Article 20(3).
In M. P. Sharma vs Satish Chandra (ibid) which is a decision by a seven Judge Bench of this Court, it was held that determination of this issue will depend on whether at the time when the person made the self incriminatory statement, a formal accusation of the commission of an offence had been made against him.
"Formal accusation" is ordinarily brought into existence by lodging of an F.I.R. Or a formal complaint to the appropriate authority or court against the specific individual, accusing him of the commission of a crime which, in the normal course, would result in his prosecution.
It is only on the making of such formal accusation that clause (3) of Article 20 becomes operative covering that individual with its protective umbrella against testimonial compulsion.
The interpretation placed by the Court in M. P. Sharma 's case.
On the phrase "person accused of any offence" used in Article 20(3) was reiterated in Bhagwan Das vs Union of India (ibid) was reaffirmed in Raja Narayanlal Bansilal vs Maneck Phiroz Mistry & Anr.
Again, in the State of Bombay vs Kathi Kalu Oghad & Ors; one of the propositions enunciated by the Court was, that to bring a statement within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement.
It is not enough, that he should become an accused, any time after the statement has been made.
The same proposition was reiterated by Gajendragadkar C.J. in Joseph Augusthi (ibid), and again by the Constitution Bench in Ramesh Chand Mehta 's (ibid).
In the instant case, at the time when the alleged incriminating statement was made before the officer of the RPF, no formal complaint in regard to the commission of an offence had been filed against him in Court, nor had any F.I.R. been lodged with the Police, specifically accusing the appellant or the author of that statement of the commission of an offence.
It is, therefore, manifest that at the material time the author of the self incriminatory statements in question, did not fulfil the character of a "person accused of an offence" within the meaning of Article 20(3).
The last authority to be noticed in regard to the interpretation of the phrase "person accused of any offence", is Ramanlal Bhogilal Shah 's case (ibid).
The petitioner Ramanlal Bhogilal Shah was arrested under Section 19B of the Foreign Exchange Act.
The grounds 204 purportedly served on him under sub section (1) of Section 19B for the offence under Section 4(2) and Section 22 of the Act, punishable under Section 23, were elaborate.
The question arose whether after these grounds had been served on the petitioner, it could be said that he was 'a person accused of an offence ' within Article 20(3) of the Constitution.
The petitioner was produced before the Magistrate, who released him on bail.
Thereafter, First Information Report was recorded under Section 154, Criminal Procedure Code, and an order was obtained from the Magistrate, permitting the investigation to be made under Section 155(2), Criminal Procedure Code.
The Enforcement Officer had examined the petitioner and put his conclusions in the grounds of arrest which were served on the petitioner.
Under these circumstances, the Court held that the petitioner was definitely a "person accused of an offence" within the meaning of Article 20(3) of the Constitution and at any rate, the petitioner was accused of an offence when the F.I.R. was recorded and therefore, the summons issued by the Enforcement Directorate would be illegal.
At the same time, it was held that although the petitioner is a 'person accused of an offence ', the only protection that Article 20(3) gave him is that he could not be compelled to be a witness against himself, but this did not mean that he need not give information regarding matters which do not tend to incriminate him.
Consequently, the Court did not set aside the summons and held that the petitioner was bound to appear before the Enforcement Directorate and answer such questions that did not incriminate him.
To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person "accused of an offence" within the meaning of Article 20(3).
Such formal accusation may be specifically made against him in an F.I.R. Or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court.
In the instant case no such formal accusation had been made against the appellant when his statement(s) in question were recorded by the RPF Officer.
At the relevant time of making the self incriminatory statements in question, therefore, the appellant did not stand in the character of a person accused of an offence and, as such, the protection of Article 20(3), will not be available to him.
In view of this finding, we do not think it necessary for the decision of these appeals to go into the question whether legal compulsion to state the truth such as the one contained in Section 9(3) of the 1966 Act is, also, a compulsion interdicted by Article 20(3).
205 In the light of what has been said above, we would answer the legal proposition (formulated as Question No. II) propounded by the learned counsel for the appellant, in the negative.
Question No. 3 was not raised or pressed at the time of arguments in the courts below.
We, therefore, refuse to go into this question and pronounce in regard thereto.
Before we part with this judgment, we may note here that the learned counsel for the respondent State has very fairly stated at the bar, that the State shall have no objection to the supply of copies of all the relevant documents and statements on which the prosecution intends to rely, to the accused appellants in the trial court.
In view of this undertaking we thought it unnecessary to go into the legal aspects of this question.
We will however, add that the prosecution shall also permit the accused appellant to inspect the other material that may have been collected by the inquiry officer, relevant to the charge against the accused appellant.
With this observation, we would dismiss these appeals (Nos. 208 209 of 1974) and send the case back to the trial court for further proceedings in accordance with law.
Since the case is already old, the proceedings shall be conducted as far as possible, from day to day on top priority basis, and disposed of preferably within three months of the date or which the records are received in the trial court.
Since the legal questions raised before us in Special Leave Petition (Crl.) No. 630 of 1977 are the same as in Criminal Appeals Nos. 208 209 of 1974, and the learned counsel for the petitioners therein has adopted the arguments of Shri R.K. Garg, appearing for the appellant in Criminal Appeals Nos. 208 209 of 1974, that Special Leave Petition, after granting special leave to appeal, will also stand disposed of by this judgment.
N.V.K. Appeals dismissed.
| IN-Abs | On the allegations that the appellant in the Criminal Appeal along with two other accused were in possession of railway property which they had obtained under forged railway receipts, the Inspector of the Railway Protection Force lodged a complaint against the three accused that they were guilty of offences under section 3(a) of the Railway Property (Unlawful 15 Possession) Act, 1966 and action should be taken against them.
In the Complaint it was mentioned that accused 2 and 3 were absconding and annexed to the complaint was (I) a list of prosecution witnesses and (2) a list of documents.
The appellant, who was accused I appeared before the Presidency Magistrate who commenced an enquiry and recorded the statements of four witnesses one on March 2, 1973 and of the other three on June 12, 1973.
On June 11, 1973 the appellant moved an application before the Magistrate making a grievance that although three witnesses had been examined, no copies of the document were furnished to him.
On June 25, 1973 he made a further application requesting for supply of true copies of all the documents in the case to enable him to prepare the defence and that he should be permitted to take photostat copies of the documents.
The Magistrate on August 9, 1973 rejected the appellants ' application on the ground that the offence complained of against him was not cognizable and that the provisions of section 251 (a) of the Code of Criminal Procedure were not applicable and consequently, he had no right to obtain copies of the documents concerned.
On August 24, 1973 the Magistrate framed a charge under section 3(a) of the Act.
The accused pleaded not guilty and again made an application repeating his request for copies of the statements of witnesses recorded by the Inspector R.P.F.
This application was also rejected by the Magistrate on September 7, 1973.
176 Feeling aggrieved by the orders passed by the Magistrate on August 9, 1973 and September 7, 1973 the appellant invoked the inherent jurisdiction of the High Court by a petition under section 561A of the Code of Criminal Procedure, 1898 and prayed that the orders be quashed.
He challenged the constitutional validity of section 9 of the Act in the petition.
The High Court rejected the petition.
In the appeal to this Court it was contended on behalf of the appellant (a) relying on Raja Ram Jaiswal vs State of Bihar; , that the expression "Police officer" in section 25 of the Evidence Act must be considered in a wide popular sense, so as to include within its ambit all officers of Government who are in substance invested with the power to investigate certain offences in accordance with the provisions of the Code of Criminal Procedure 1898 irrespective of the fact that they are differently labelled such as Excise officers or Customs officers or members of R.P.F., otherwise the very object of section 25 will be defeated.
An Inspector of the R.P.F. making an inquiry under the Railway Property (Unlawful Possession) Act 1966 into an offence under section 3 of that Act, in substance, acts and exercises almost all the powers of a 'Police officer ' making an investigation under the Code of Criminal Procedure and any confessional statement recorded by such Inspector will be hit by section 25 Evidence Act.
The case of State of U.P. vs Durga Prasad, ; was not correctly decided and that its ratio needs reconsideration by a larger Bench because it has overlooked the test laid down by the three Judge Bench in Raja Ram Jaiswal 's case.
(b) As soon as a person is arrested by an officer of the Force on a suspicion or charge of committing an offence punishable under the 1966 Act, he stands in the character of a "person accused of an offence" and any confessional or incriminating statements recorded by an officer of the Force in the course of an inquiry under section 8(1) of the 1966 Act, cannot be used as evidence in view of the constitutional ban against "compelled testimony" imposed by article 20(3) of the Constitution.
On behalf of the respondent it was submitted that: (a) an officer of the R.P.F. while making an inquiry under the 1966 Act cannot be equated with a police officer in charge of a Police Station making an investigation under the Code.
The important difference in their powers is, that the R.P.F. Inspector has no power to submit a report or a charge sheet under section 173 of the Code.
The decision of this Court in Raja Ram Jaiswal 's case stands on its own peculiar facts and was distinguished in a later decision by a Constitution Bench of this Court in Badku Joti Savant vs State of Mysore, ; The correct test for determining whether or not R.P.F. Officer is a police officer for the purpose of section 25 of the Evidence Act is the one which was consistently applied in State of Punjab vs Barkat Ram ; , & Romesh Chandra Mehta vs West Bengal (b) The conditions necessary for the attraction of the ban in article 20(3) do not exist in the instant case because before the filing of the complaint in the Court, the appellant was not a "person accused of an offence" and that it was nowhere alleged that the confessional or incriminating statements were extorted by the R.P.F. Officer under physical duress, threat, inducement or mental torture.
177 on the questions: (1) whether an officer of the Railway Protection Force making an inquiry under the Railway Property (Unlawful Possession) Act, 1966 in respect of an offence under section 3 of that Act of unlawful possession of the railway property is a police officer for the purpose of section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure 1898 and whether any confession or incriminatory statement recorded by him in the course of an inquiry under section 8 of the Act is inadmissible in evidence, and (2) whether a person arrested by an officer of the Railway Protection Force under section 6 of the Act for the alleged commission of an offence under section 3 of the Act is "person accused of an offence" within the meaning of article 20(3) of the Constitution: ^ HELD: 1.
An officer of the R.P.F. conducting an enquiry under section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code.
Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under section 173 of the Code, which he has been held to be the clinching attribute of an investigating 'police officer '.
An officer of the R.P.F. could not therefore be deemed to be a "police officer" within the meaning of section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.
[201C E] 2.
The term 'police officer ' has not been defined in the Evidence Act The policy behind sections 25 and 26 of Evidence Act is to make a substantive rule of law that confessions whenever and wherever made to the police shall he presumed to have been obtained under the circumstances mentioned in section ' 24 and therefore, inadmissible except so far as is provided in section 27 of that Act.
[182F, E] Ariel vs State A.I.R. 1954 S.C. 15, referred to.
The primary object of constituting the Railway Protection Force is to secure better "protection and security of the railway property".
The restricted power of arrest and search given to the officers or members of the Force is incidental to the efficient discharge of their basic duty to protect and safeguard Railway Property.
No general power to investigate all cognizable offence relating to Railway Property, under the Criminal Procedure Code has bee.
conferred on any superior officer or member of the Force by the 1957 Act [185F G] 4.
The main purpose of passing the 1966 Act was to "invest powers of investigation and prosecution" of offences relating to railway property in the RPF "in the same manner as in the Excise and Customs." Inspite of provision in the Code of Criminal Procedure to the contrary, offences under this Act have been made non cognizable and, as such, cannot be investigated by a police officer under the Code.
It follows that the initiation of prosecution for an offence inquired into under this Act can only be on the basis of a complaint by an officer of RPF and not on the report of a police officer under section 173(4) of the Criminal Procedure Code, 1898.
[187A, 188B] 5.
Section 14 makes clear that the provisions of the Act shall override all other laws.
which means that anything in the 1966 Act which is inconsistent 178 with the Code, will prevail and the application of the Code pro tanto will be excluded.
The scheme of the 1966 Act, particularly the provisions in sections 5, 8, 9(3), (4) is different from that of the Code.
The Code, therefore, cannot proprio vigore apply to an enquiry conducted under section 8(1) of the 1966 Act by an officer of the Force.
[189G, 190A] 6.
An analysis of clause (3) of article 20 shows three things: Firstly, its protection is available only to a "person accused of any offence".
Secondly, the protection is against compulsion "to be a witness".
Thirdly, this protection avails "against himself".
[202F] 7.
Only a person against whom a formal accusation of the commission of an offence has been made can be a person "accused of on offence" within the meaning of article 20(3).
Such formal accusation may be specifically made against him in an F.I.R. or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in Court.
[204F] In the instant case no such formal accusation had been made against the appellant when has statement(s) in question were recorded by the R.P.F. Officer.
He did not at that time, stand in the character of a person "accused of an offence" and as such, the protection of Article 20(3) will not be available to him.
[203F G] Kathi Raning Rawat vs The State of Saurashtra ; , K. Joseph Augusthi & Ors.
vs M. A. Narayanan , Mohamed Destagir vs The State of Madras ; , Bhagwan Das, Crl.
131 132/61 decided on 20 9 63, Bhogilal Shah & Anr vs D. K. Guha & Ors ; , M. P. Sharma vs Satish Chandra ; , Smt.
Nandini Satpathy vs P. L Dani & Anr. ; , In re The Special Courts Bill, , Raja Narayanlal Bansilal vs Maneck Phiroz Mistry & Anr. ; , State of Bombay vs Kathi Kalu Oghad & Ors. ; , ref to.
|
: Criminal Appeal No. 20 of 1975.
Appeal by Special Leave from the Judgment and order dated 15/16 11 1973 of the Gujarat High Court in Crl.
A. No. 22/73.
J. L. Nain, M. N. Shroff for the Appellants.
H. section Marwah, Amicus Curiae for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated November 15/16, 1973, of the High Court of Gujarat.
The material facts are as under: On June 23, 1973, a Police Sub Inspector made a report to the District Superintendent of Police, Rajkot, to the effect that the premises known as Rajkot Yuvak Sahakar Mandal situated at Mochhi 393 Bazar Road, near Krishna Cinema, Rajkot was used as a common gaming house and gambling was going on therein.
The Deputy Superintendent of Police, after making an inquiry, was satisfied about the contents of the report and he issued a warrant under Section 6 of the Bombay Prevention of Gambling Act (hereinafter referred to as the Act) and sent it to the Police Sub Inspector, Rajkot, for execution in accordance with law.
The Sub Inspector then reached the aforesaid B: premises in the early hours of June 24, 1973 at 4 a.m.
He found 10 persons, including the respondent herein, in the premises.
They had all gathered there for the purpose of gambling, and gambling was actually going on by play of cards, and tokens of various designs, which were used to indicate the different points, were also found there.
All the ten persons were arrested in respect of offences under Sections 4 and S of the Act.
The instruments of gaming were also seized.
On the following morning at 7 a.m., the petitioner and his companions submitted an application to the Police Sub Inspector, who was the first respondent before the High Court, requesting him to enlarge them on bail.
The Sub Inspector did not consider their bail applications, nor did he pass any order thereon.
At about noon, however, the respondents were produced before the Magistrate, who released them on bail.
The Sub Inspector did not consider their bail applications and release them on bail because he was prohibited from doing so by a Circular order issued by Shri P. H. Jethwa, District Superintendent of Police, Rajkot, directing all the Police Sub Inspectors not to release persons arrested in respect of offences under Sections 4 and S of the Act on bail, because in the Form of the warrant prescribed under Section 6 of the Act, it is mentioned that the arrested persons should be produced before the Magistrate.
The Circular order further directed that the arrested persons under the Act should be produced before the Magistrate.
The Circular further warned that if any Police officer violated these directions, he would expose himself to disciplinary action.
This Circular order (exhibit B) was impugned by a writ petition under Article 226 of the Constitution before the High Court.
Two main contentions were raised before the High Court.
First, that offences under Sections 4 and S of the Act are cognizable and bailable.
Consequently, under Section 496 of the Code of Criminal Procedure, 1898, the Police officer arresting the respondents was duty.
bound to enlarge them on bail.
The impugned Circular, being contrary to the statutory provisions, is illegal and ultra vires.
Second, the impugned Circular is violative of Article 14 of the Constitution, inasmuch as it discriminates between persons similarly situated.
The second ground was not pressed before the High Court 394 The first contention prevailed with the High Court.
In conclusion, it held that the Police officer had the power o} the authority to enlarge the arrested persons on bail.
Its reason was as under: "When the legislature empowers an officer to delegate any authority to do certain acts to another it necessarily implies that , the original authority can do such acts itself.
Consequently, when the Commissioner of Police and certain other officers mentioned in Section 6 are authorised to issue special warrant for search of the premises where gambling is going on, for the seizure of the articles therein or take into custody and bring before the court such persons who may be found therein, such officers can themselves do such acts.
" Referring to Section 4(1) (f) of the Code of Criminal Procedure the High Court observed that the words "a police officer" in that provision which defines a cognizable offence, do not mean "each and every" police officer.
It is sufficient if the power to arrest without warrant is limited by the provisions of law to a class of police officers and the offences in such cases fall within the purview of clause (f) of sub section (1) of Section 4 of the Code.
Since under Section 6 of the Act, the Police Commissioner and certain other officers, mentioned therein, have the power and authority to arrest persons accused of having committed the offences under Sections 4 and S of the Act with out warrant the said offences are cognizable.
Support for this reasoning was sought from a decision of this Court in Union of India vs I.C. Lala, etc.
The High Court further held that the provisions of Section 6 merely provide a limited exemption from the provisions of the Code of Criminal Procedure, in so far as they limit the class of Police officers who are competent to investigate the offences and to arrest without a warrant.
The mere fact that certain restrictions are placed as to the Police officers who are competent to investigate the offence would not make the offence any the less than cognizable.
It, also, referred to several decisions of the Bombay High Court, including the one Emperor vs Raghunath decided by a division Bench consisting of Beaumont, C.J. and Broom field, J., wherein it was held that an offence under Section 4 of the Act is non cognizable.
The High Court did not follow this decision because, in its view, it had ignored an earlier decision which covered the point which the court had decided, and the earlier decision was contrary to it.
With this reasoning, the High Court came to the conclusion that offences under Sections 4 and 5, being cognizable and 395 bailable, the commissioner of Police and the officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release accused on bail under the provisions of Section 496 of the Code of Criminal Procedure.
They derive their power to grant bail from the statute.
The impugned order therefore, cannot be sustained because it runs counter to the statutory provisions which authorise the police officers mentioned in Section 6 to grant bail.
Nobody has appeared on behalf of the respondent, despite notice, to oppose this appeal.
Shri H. section Marwah, however, has been kind enough to assist the Court as amicus Curiae on behalf of the respondents.
Since the case was decided by the High Court on the basis of the first contention in favour of the respondent, herein, and the High Court did not go into the constitutional validity of the impugned order, we will confine the discussion to the first point, on the basis of which, the High Court has invalidated the impugned order.
We will assume for our purpose that Section 6 of the Act does not offend Article 14 of the Constitution.
Section 6 runs as under: "6(1).
It shall be lawful for a Police officer (i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub Inspector and either empowered by a general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and (ii) elsewhere not below the rank of Sub Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Additional, Assistant or Deputy Superintendent of Police, and (iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the official Gazette specify in this behalf, not below the rank of a Sub Inspector and empowered by general order in writing issued by the district Magistrate.
(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming house: H (b) to search all parts of the house, room or place which he shall have so entered, when he shall have reason 396 to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not, (c) to.
take into custody and bring before a Magistrate all such persons; (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein: Provided that no officer shall be authorised by special warrant unless the Commissioner of Police, the Magistrate, the District or Additional or Assistant or Deputy Superintendent of Police concerned is satisfied, upon making such inquiry as he may think necessary, that there are good grounds to suspect the said house, room or place to be used as a common gaming house.
" From a plain reading of Section 6(1), it is clear that subject to the conditions of 'the proviso, a Commissioner of Police may empower by a general order or authorise by special warrant a police officer not below the rank of a sub Inspector, to do any of the acts and things enumerated in sub clauses (a) to (d) of that sub section, including the act of arresting a person found gambling or present in a common gaming house.
It follows therefrom, by necessary implication, that the Commissioner of Police can personally do any of the aforesaid acts and things which he could authorise any other police officer of the requisite rank to do.
The primary repository of the plenary power to do he aforesaid acts and things, constituted under sub clause (i), is the Commissioner of Police.
The sub clause only enables him to employ his subordinate police officer(s), not below the authorised rank of a Sub Inspector to execute his general order or special warrant to arrest for offences under Sections 4 and 5 of the Act.
It will be noted further that even under sub clause (iii), in an area notified by the Government.
any police officer not below the rank of a Sub Inspector empowered by the District Magistrate under a general order in writing can arrest a person found gambling or present in a common gaming house, without a warrant from a Magistrate.
In short, Section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer.
It is in the light of the above analysis of Section 6(1) that we have to determine whether the offences under Sections 4 and 5 of the Act are recognizable offences '.
Section 4(1)(f) of that Code of Criminal Procedure, 1898, defines "cognizable offence" to mean an offence for, and 'cognizable case ' to mean a case "in which a police officer, within 397 or without the Presidency towns may, in accordance with the Second Schedule or under other law for the time being in force, arrest without warrant".
There was a divergence of judicial opinion in regard to the connotation of the words "a police officer" used in the above definition.
One line of decisions, led by Deodhar Singh case, took the view that 1 these words in Section 4(1) do not necessarily mean "any and every" police officer.
It is sufficient to bring an offence within the definition of a 'cognizable offence ' if the power to arrest without a warrant is vested under the law in a police officer of a particular class only.
The ratio of Deodhar Singh 's case was followed by the Bombay High Court in Emperor vs Ismail and Emperor vs Abasbhai Abdul Hussain by the Nagpur Court in Nagarmal Jankiram, and by the Delhi High Court in Delhi Administration vs Parkash Chand & Ors.
A contrary view was taken by the Assam High Court in G. K. Apu vs Union of India; by the Allahabad High Court in State of U.P. vs Lal Bahadur & Ors.; by the Madhya Bharat High Court in Union of India vs Mahesh Chandra; and in some other decisions.
This conflict appears to have been set at rest by the decision of this Court in 1.
C. Lala 's case (ibid) which has expressly overruled the view taken by the Assam and Madhya Bharat High Courts.
We will notice Lala 's case, later.
It will suffice to say here that the view which has received the imprimatur of this Court, is that the expression "police officer" in Section 4(1)(f) of the Code does not necessarily mean "any and every" police officer, and an offence will still be a "cognizable offence" within this definition even if the power to arrest without warrant, for that offence is given by the statute to police officers of a particular rank or class.
In Queen Empress vs Deodhar Singh, under the Bengal Public Gaming Act II of 1867, the District Superintendent of Police (or the District Magistrate) was competent to arrest or by warrant to direct the arrest of persons found in a common gaming house.
The Question 398 was whether the offence under Section 4(1)(f) of the Bengal Act was cognizable.
This question turned on an interpretation of the expression "police officer" in the definition of 'cognizable offence ', and was answered in the affirmative, thus.: "Now, under the Gambling Act, it is not every Police officer who can arrest without a warrant.
It is only the District Superintendent of Police who can arrest or by warrant direct the arrest of persons gambling in a house.
The district Superintendent being a Police officer who may, under a law for the time being in force, viz., the Gambling Act, arrest without warrant.
We think that the requirements of clause (1) (f) of the above Sections are satisfied, and that the offence in question is, therefore, a 'cognizable offence '.
We cannot accept the contention that the words in that clause, 'a Police officer ' mean 'any and every ' Police officer.
It is sufficient if the Legislature has limited the power of arrest to any particular class of Police officers.
" If we may say so with respect, this is a correct exposition of the law on the point.
The ratio of Deodhar Singh 's case was followed by a Division Bench of the Bombay High Court (Marten and Madgavkar, JJ.) in Emperor vs Abasbhai Abdul Hussain (ibid).
The impugned judgment before us is also based on this decision.
These very provisions of the Bombay Prevention of Gambling Act came up for interpretation in re.
Naganmal Jankiram (ibid), and the same view was taken by Pollock J.
In Abasbhai 's case (ibid), a Sub Inspector got a warrant issued under Section 6 of the Bombay Prevention of Gambling Act, which authorised him to search certain premises.
In execution of that warrant the Sub Inspector raided a house and arrested three persons who were found therein.
The case was tried by the Magistrate concerned as a cognizable one.
At the trial at the stage of arguments, it was contended on behalf of the accused that offences under Sections 4 and 5 were non cognizable, and since the procedure of warrant case had been followed by the Magistrate, the trial was illegal.
The trial court accepted the argument and acquitted the accused.
In appeal before the High Court, it was agitated that the offence was a cognizable one.
The High Court reasoned and we think rightly that since under Section 6 of the Act the Commissioner of Police has power to issue special warrants of search and also to arrest, he is competent to do personally, what he may authorise others to do by special warrant.
It followed the dictum of Deodhar Singh 's case in regard to the interpretation of the words "a police officer" in the definition of "cognizable offence" given in the Code of Criminal Procedure.
On 399 these premises, the High Court held that offence s under Sections 4 and 5 are cognizable.
In Emperor vs Ismail (ibid), a Division Bench of the Bombay High Court, reaffirmed the dictum of Abasbhai 's case, that an offence punishable under Section 4 of the Act, is cognizable.
In Delhi Administration vs Parkash Chand & Ors., H. R. Khanna, J., following the dictum of the Calcutta High Court in Deodhar Singh 's case, and of Bombay High Court in Abasbhai 's case, held that offences under Sections 3 and 4 of Delhi Gambling Act are 'cognizable offences ' as Section S of the Delhi Act gives the Superintendent of Police power to arrest or authorise any officer of police, not below the rank of Sub Inspector, to arrest without a warrant.
It is argued on behalf of the appellant State that the ratio of the aforesaid decisions in Deodhar Singh 's case and Parkash Chand 's case is not applicable to offences under the Bombay Prevention of Gambling Act, because the Bengal Act and the Delhi Act expressly empower the Superintendent of Police either to arrest himself or direct arrest by another police officer of requisite rank, whereas in Section 6(1) of the Bombay Prevention of Gambling Act there are no express words giving an option, to the Commissioner of Police to effect arrest, personally.
We are unable to accept this argument.
The difference pointed out, is a distinction without a difference.
What was explicit in the Bengal Gambling Act and the Delhi Gambling Act, is implicit in Section 6(1) of the Bombay Prevention of Gambling Act.
It will now be appropriate to notice this Court 's decision in Union of India vs I. C. Lala.
In that case, two army officers and one business man were charged with the conspiracy of the offences punishable under Sections 120B and 420 of the Indian Penal Code, read with Section S(2) of the Prevention of Corruption Act.
The officer who investigated these offences was an Inspector of the Delhi Police Establishment.
Under Section SA of the Prevention of Corruption Act, before its amendment in 1974, no officer below the rank of Deputy Superintendent of Police could investigate an offence punishable under Sections 161, 165 and 165A of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, without the order of the Presidency Magistrate or a Magistrate of the First Class.
The question before the Court was.
whether sanction under Section 196A of the Code was necessary.
The answer to this question turned upon whether an offence under Section 5(2) of the Prevention of Corruption Act was non cognizable or cognizable.
The 400 High Court held that an offence under Section 5(2) of that Act was non cognizable because it was not an offence for which any police officer could arrest without a warrant.
The same argument which was canvassed before the High Court was repeated before this Court.
And it was contended that the words 'a police officer ' in Section 4(1) (f) of the Code mean 'any ' police officer.
This argument was repelled by this Court and it was held that such an approach could not be a criterion for deciding whether the offence is cognizable or non cognizable.
It was observed: "If we pursue the same line of argument and look at the definition of non cognizable offence in Section 4(1) (n) which defines non cognizable offence as an offence for which a police officer, within or without a Presidency town, may not arrest with.
out warrant, it might mean that as these are cases where a police officer of the rank of Dy.
Superintendent and above can arrest without warrant these are not non cognizable offences either How can there be a case which is neither cognizable nor non cognizable? It was sought to be argued that these offences would be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non cognizable when they are investigated by officers below the rank of Deputy Superintendents.
We fail to see how an offence would be cognizable in certain circumstances and non cognizable in certain other circumstances.
We do not consider that this is a reasonable interpretation to place.
" Once we hold that a Commissioner of Police who is competent to direct by issuing special warrant or general order, under Section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the principle enunciated by this Court in Lala 's case is immediately attracted in full force and there is no escape from the conclusion that offences under Sections 4 and S of the Bombay Prevention of Gambling Act are cognizable.
Such offences are admittedly bailable.
It follows as a necessary corollary therefrom, that the commissioner of Police or the police officer who is authorised by him to search, arrest and investigate such offences is under a legal obligation to release the accused on bail under the provisions of Section 496 of the Code.
The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting, from the statute and consequently, no executive instructions or administrative rules can abridge, or run counter to the statutory provisions of the Code.
Since the impugned order or 401 executive instructions are contrary to or inconsistent with the provisions of the Code and on a true construction, there is nothing in Section 6 or any other provision of the Act which takes away the right and power conferred by The Code on the police officer to grant bail to the person arrested by him for offences under Sections 4 and 5 of the Act, the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court.
In the result, the appeal fails and is dismissed.
Appeal dismissed.
| IN-Abs | A Sub Inspector of Police arrested the respondent for offences under sections 4 and 5 of the Bombay Prevention of Gambling Act on a warrant issued under section 6 of the Act by the Deputy Superintendent of Police.
The respondent 's application for release on bail was rejected by the Sub Inspector on the ground that a circular order issued by the District Superintendent of Police prohibited him from releasing on bail persons that were arrested in respect of offences under sections 4 and S of the Act.
He, however, produced the respondent before a Magistrate.
D The High Court in the writ petition filed by the respondent upheld his contention that offences under sections 4 and S of the Act being cognizable and bailable, the Commissioner of Police and officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release the accused on bail under the provisions of section 496 of the Code of Criminal Procedure 1898 since the impugned order ran counter to the statutory provisions it was bad in law.
The High Court also held that since under section 6 of the Act the Police Commissioner and certain other officers mentioned therein have the power and authority to arrest persons accused of having committed offences under sections 4 and S of the Act without warrant, the offences are cognizable.
Dismissing the appeal, ^ HELD: (a) Since the Commissioner of Police, who is competent to direct by issuing special warrant or general order under section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the offences under sections 4 and S of the Act are cognizable.
Such offences are admittedly bailable.
[400 F G] (b) The Commissioner of Police or the Police officer who is authorised by him to search, arrest and investigate such offences, is under a legal obligation to release the accused on bail under the provisions of section 496 of the Code.
The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting from the statute and consequently no executive instructions or administrative rules can abridge or run counter to the statutory provisions of the Code.
Since the impugned order of executive instructions are contrary to or inconsistent with the provisions of the Code and 392 on a true construction, there is nothing in section 6 or any other provision of the Act which takes away the right and power conferred by the Code on the police officer to grant bail to the person arrested by him for offences under sections 4 and 5 of the Act the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court.
[400 G H] Union of India vs I. C. Lala etc., A.I.R. 1973 S.C. 2204=[1973] 3 SCR 818, 824 applied.
(a) Under Section 6(1) of the Act (subject to the conditions of the proviso) a Commissioner of Police may empower by a general order or authorise by special warrant a police officer not below the rank of a sub Inspector to do any of the acts and things enumerated in sub clauses (a) to (d) of that subsection, including the act of arresting a person found gambling or present in a common gaming house.
It follows therefrom, by necessary implication, that the Commissioner of Police can personally do any of the aforesaid acts and things which he could authorise any other police officer of the requisite rank to do.
The primary repository of the plenary power to do tho aforesaid acts and things, constituted under sub clause (i) is the Commissioner of Police.
The sub clause only enable him to employ his subordinate police officers not below the authorised rank of Sub Inspector to execute his general order or special warrant to arrest for offences under sections 4 and 5 of the Act.
In short section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer.
[396D F & G] (b) It is settled law that the expression "Police officer" used in the definition of cognizable offence in section 4(1)(f) of the Code of Criminal Procedure does not necessarily mean "any and every" police officer.
An offence will still be a cognizable offence within this definition even if the power to arrest without warrant for that offence is given by the statute to police officers of a particular rank or class only.
[398 C] Queen Empress vs Deodhar Singh ILR , 150 approved.
|
: Special Leave Petition (Criminal) No. 950 of 1980.
From the Judgment and order dated 21 9 1979 of the Allahabad High Court in Crl.
A. No. 2305/74.
U. section Prasad for the Petitioner.
The Judgment of the Court was delivered by, KRlSHNA IYER, J.
This special Leave Petition relates to a conviction and sentence for an offence of rape.
The escalation of such crimes has reached proportions to a degree that exposes the pretensions of the nation 's spiritual leadership and celluloid censorship, puts to shame our ancient cultural heritage and humane claims and betrays a vulgar masculine outrage on human rights of which woman 's personal dignity is a sacred component.
We refuse special leave and briefly state a few reasons for doing so.
Draupadi, a middle aged Bal Sewika in a village welfare organization ' was sleeping in a girls ' school where she was allegedly raped by Rafiq, the petitioner, and three others.
The offence took place around 2.30 a.m. On August 22/23, 1971, and the next morning the victim related the incident to the Mukhiya Sewika of the village.
A report was made to the Police Station on August 23.
1971 at mid day.
The investigation that followed resulted in a charge sheet, a trial and, eventually, in a conviction based substantially on the testimony of the victim.
Although some of the witnesses.
tell tale fashion.
shifted their loyalties and betrayed the prosecution case, the trial court ' entered a finding of guilt against the appellant, giving the benefit of doubt to the other three obscurely.
A 7 year sentence of rigorous imprisonment was awarded as justly merited.
having regard to the circumstances.
The appeal carried to the High Court proved unsuccessful but, undaunted, he petitioner has sought leave to appeal to this Court.
Concurrent findings of fact ordinarily acquire a deterrent sanctity and tentative finality when challenged in this Court and we rarely invoke the special jurisdiction under article 136 of the Constitution which is meant mainly to correct manifest injustice or errors of law of great moment.
By these substantial canons the present petition for leave has not even a dog 's chance.
404 Counsel contended that there was absence of corroboration of the testimony of the prosecutrix, that there was absence of injuries on the person of the woman and so the conviction was unsustainable, tested on the touchstone of case law.
None of these submissions has any substance and we should, in the ordinary course, have desisted from making even a speaking order but counsel cited a decision of this Court in Pratap Misra & Ors.
vs State of Orissa and urged that absence cf injuries on the person of the victim was fatal to the prosecution and that corroborative evidence was an imperative component of judicial credence in rape cases.
We do not agree.
For one thing, Pratap Misra 's case (supra) laid down no inflexible axiom of law on either point.
The facts and circumstances often vary from case to case.
the crime situation and the myriad psychic factors, social conditions and people 's life styles may fluctuate, and so, rules of prudence relevant in one fact situation may be inept in another.
We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases.
Corroboration as a condition for judicial reliance on the testimony cf a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
Indeed, from place to place, from age to age.
from varying life styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny.
The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.
There are several "sacred cows" of the criminal law in Indo Anglian jurisprudence which are superstitious survivals and need to be re examined.
When rapists are revelling in their promiscuous pursuits and half of humankind womankind is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable.
In this case, the testimony has commanded acceptance from two courts.
When a woman is ravished what is inflicted is not merely physical injury.
but 'the deep sense of some deathless shame".
405 "A rape! a rape!. . . .
Yes, you have ravish 'd justice; Forced her to do your pleasure.
Hardly a sensitized judge who sees the conspectus of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against is veracity.
None we see in his case, and confirmation of the conviction by the courts below must, therefore, be a matter of course.
Judicial response to human rights cannot be blunted by legal bigotry.
The case before us occurred in 1971 and is drawing to a close in 1980.
What a pity ! Now that there is considerable public and parliamentary attention to the violent frequency of rape cases it is time that the court reminds the nation that deterrence comes more effectively from quick investigations, prompt prosecutions and urgent finality, including special rules of evidence and specialised agencies for trial.
Mechanical increase of punitive severity, without more, may yield poor dividends for women victims.
In Dr. Johnson 's time public hanging for pick pocketing was prevalent in England but as Dr. Johnson sardonically noted pick pockets were busy plying their trade among crowds gathered to see some pick pocket being publicly executed.
Dr. Johnson 's wit is our wisdom.
The strategy for a crime free society is not draconian severity in sentence but institutional sensitivity, processual celerity and prompt publicity among the concerned community.
"Lawlessness is abetted by a laggard, long lived, lacunose and legalistic litigative syndrome rather than by less harsh provisions in the Penal Code".
The focus must be on the evil, not its neighbourhood.
Counsel submitted that a 7 year sentence was too severe.
No, because, as we have stated earlier, rape for a woman is deathless shame and must be dealt with as the gravest crime against human dignity.
No interference on the score of culpability or quantum of punishment is called for in the circumstances.
We refuse special leave.
N.V.K. Petition dismissed.
| IN-Abs | Indian Penal Code 1860, section 376 Evidence and proof Absence of injuries on prosecution Whether fatal to the prosecution Testimony of prosecutrix Corroboration whether necessary.
The petitioner was convicted on the charge of committing rape on a middle aged Bal Sewika in a village welfare organisation who was sleeping a girls school.
The trial Court imposed a sentence of 7 years ' rigorous imprisonment.
The High Court, confirmed the conviction and sentence.
In the Special Leave Petition to this Court it was contended on behalf of the petitioner relying on the decision of this Court in Pratap Mishra & Ors.
vs State of Orissa, A.I.R. 1977 S.C. 1307 that absence of injuries on the person of the victim was fatal tb the prosecution and that corroborating evidence was an imperative component of judicial credence in rape cases.
It was also submitted that the sentence of 7 years was too severe.
Dismissing the petition; ^ HELD: 1.
No interference on the score of culpability or quantum of punishment is called for.
1405 2.
Concurrent findings of fact ordinarily acquire a deterrent sanctity and tentative finality when challenged in this Court.
The special jurisdiction under Article 136 of the Constitution which is meant mainly to correct manifest injustice or errors of law of great moment cannot be invoked in the instant case.
[403 H] 3.(i) The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people 's life styles may fluctuate, and so, rules of prudence relevant in one fact situation may be inept in another.
The argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases cannot be accepted.
[404 D] (ii) Pratap Misra 's case laid down no inflexible axiom of law on either point.
[404 C] 4.
Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
[404 E] 403 In the instant case the testimony of the prosecutrix has commanded acceptance from two courts.
A sensitized judge who sees the conspectus of circumstances in its totality hardly rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity.
There is none in this case.
The confirmation of the conviction by the Courts below must therefore, be a matter of course.
[404H, 405B]
|
iminal Appeal No. 86 of 1954.
Appeal under Article 134(1)(C ) of the Constitution of India from the judgment and order dated the 27th May 1954 of the Calcutta High Court in Criminal Appeal No. 158 of 1953.
640 Sukumar Ghose for the appellant D. N. Mukerjee for P. K. Bose for respondent No. 1.
K. L. Arora for respondent No. 2. 1956.
September 5.
The Judgment of the Court was delivered by BHAGWATI J.
The Appellant was charged under Section 411, Indian Penal Code with Dishonestly receiving or retaining in his possession one Hillman Car number WBD 4514 bearing Engine and Chassis No. A1178482 WSO knowing, or having reason to believe the same to be stolen property.
The learned Presidency Magistrate, Calcutta, convicted him of this offence and sentenced him to rigorous imprisonment for 2 years.
The Appellant took an appeal to the High Court at Calcutta and a Division Bench of the High Court constituted by Mr. Justice Jyoti Prokash Mitter and Mr. Justice Sisir Kumar Sen dismissed the appeal confirming the conviction and sentence passed upon him.
The Appellant filed a peti tion for leave to appeal to this Court and that petition according to what we are told is the practice obtaining in the Calcutta High Court came before a Division Bench differently constituted a Bench constituted by the learned Chief Justice and Mr. Justice section C. Lahiri.
This Bench allowed the petition and ordered that a certificate for leave to appeal under article 134(1)(c) of the Constitution may be drawn up.
In an elaborate judgment the learned Chief Justice observed: "In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact".
After discussing in detail the various circumstances in the case which did not meet with his approval, he wound up by saying: "In my view it is impossible not to feel in this case that there has not been as full and fair a trial as I ought to have been held.
In the circumstances, it appears to me that the petitioner is entitled to have 641 his case further considered and since such further consideration can only be given by the Supreme Court, I would grant the certificate prayed for".
Contrary to what we had in the previous case before us, viz., Criminal Appeal No. 146 of 1956 (Om Prakash vs The State of Uttar Pradesh), where no reasons were given as to why the Court exercised its discretion in granting the certificate, in this judgment we have an elaborate discussion as to why such discretion was being exercised.
by the Court.
The reasoning, however, does not, appeal to us.
Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having 'been held we are of the opinion that he bad no jurisdiction to grant a certificate under article 134 (1) (c) in a case where admittedly in his opinion the question involved was one of fact where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further consideration of the case of the Appellant on facts.
The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial could not be any justification for granting a certificate under article 134(1) (c) and converting this Court into a Court of Appeal on facts.
No High Court has the jurisdiction to pass on mere questions of fact for further consideration by this Court under the relevant articles of the Constitution.
We no doubt possess that power and in proper cases have exercised it under article 136(1).
If there has been a gross miscarriage of justice or a departure from legal procedure such as vitiates the whole trial we would certainly intervene and we would also intervene if even the findings of fact were such as were shocking to our judicial conscience and grant in such cases special leave to appeal under article 136(1).
That is, how ' ever, a special jurisdiction which we can exercise under article 136(1), but no High Court can arrogate that function to itself and pass on to us a matter which in its view is purely one involving questions of fact, because it finds itself helpless to redress the grievance.
In such a case, the High Court should 83 642 refuse to give a certificate under article 134(1)(c) and ask the parties to approach us invoking our special jurisdiction under article 136(1) of the Constitution.
We are, therefore, of the opinion that the discretion that was so elaborately exercised by the Calcutta High Court in this case was wrongly exercised.
The certificate purporting to have been granted under article 134(1)(c) was no certificate at all and it does not avail the appellant before us.
Following our decisions in Narsingh and another vs The State of Uttar Pradesh(1), Baladin & Others vs The State of Uttar Pradesh(2) and Sunder Singh vs The State of Uttar Pradesh(3), Mr. Sukumar Ghose for the appellant urged that this was a fit case where we should exercise our discretion and grant the appellant special leave to appeal under article 136(1) of the Constitution.
He pointed out that even though the appellant had led no evidence in defence there were on the record of the case certain documents which if taken as proved would have been sufficient to demolish the prosecution case.
These were commented upon by the learned Chief Justice in the judgment which he delivered when certificate for leave to appeal under article 134(1) (c) was grunted by him.
These documents, it was urged, went to show that sometime before the car in question was stolen, an application had been made by the appellant to the police authorities in Chandarnagore for registration of Hillman Minx 1951 Model car which bore the same number on the engine, chassis and tin plate as the car in question and on that application, investigation had been made by the A.S.I. police, who made his report, the contents of which would go to establish the case which was put forward by the appellant in his defence.
It is no doubt true that the prosecution has got to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence.
If the prosecution succeeds in establishing its case, the conviction would follow, but if the prosecution fails to discharge the burden which lies upon it to prove the charge which (1) ; (2) A.I. R. (3) A.I.R. 1956 S.C. 411.
643 has been framed against the accused he is entitled to an acquittal.
In this case both the Courts below held that the prosecution bad proved its case by the evidence of the witnesses who were called including the motor expert, who on applying chemicals discovered on the engine the very number which was the number on the stolen car.
On this state of the evidence, it was the bounden duty of the appellant if he wanted to prove his defence to adduce evidence in support of his contentions and if he did not do so, he had only to thank himself for it.
The prosecution could not be blamed for that lacuna and if both the Courts below went on the record as it stood and came, to the conclusion, finding it as a fact, that the prosecution had established its case, it could not be urged, as was sought to be done in the judgment delivered by the learned Chief Justice in the petition for leave to appeal to this Court, that evidence, if forthcoming, would have demolished the case of the prosecution.
If those who represented the appellant did not take counsel within themselves and put forward the defence as they should have done, there was no blame on the prosecution nor on the learned Presidency Magistrate who tried the case and came to the conclusion adverse to the appellant.
Whatever sentiment appears to have been imported in the Matter has been simply out of place and even if one may have a lurking suspicion at the back of his mind and might feel that there has not been a full and fair trial as ought to have been held, that is no justification for going behind the concurrent findings of fact reached by both the Courts below to the effect that the prosecution had succeeded in establishing the guilt of the appellant.
We see nothing in this case to warrant an interference under article 136(1) of the Constitution.
This application will, therefore, be rejected and the appeal will stand dismissed.
Bail bond cancelled and the appellant to surrender his bail.
| IN-Abs | The High Court has no jurisdiction to grant certificate under article 134(1)(c) of the Constitution on mere question of fact, and is not justified in passing on such question to the Supreme Court for further consideration, thus converting the , Supreme Court into a Court of Appeal on facts.
No doubt the Supreme Court, in case of gross miscarriage of justice or departure from legal procedure such as vitiates the whole trial, possesses the power and has special jurisdiction to intervene under article 136(1) of this Constitution and also if the findings of fact were such as were shocking to judicial conscience; but no High Court can arrogate that function to itself because it finds itself helpless to redress the grievance.
Certificate granted on mere question of fact would be no certificate at all; High Court should refuse such certificates under article 134(1)(c) and should ask the parties to approach the Supreme Court to invoke its special jurisdiction under article 136(1) of the Constitution.
The accused and not the prosecution is to be blamed for the lacuna in the defence in not adducing evidence in support of his contentious, which if forthcoming would have demolished the case of the prosecution.
Narsingh and another vs The State of Uttar Pradesh, ([1955] 1 S.C.R. 238), Baladin & Others vs The State of Uttar Pradesh, (A.I.R. and Sunder Singh vs The State of Uttar Pradesh, (A.I.R. , referred to.
|
N: Criminal Appeal Nos.
606 and 607 of 1979.
From the Judgment and order dated 19 1 1979 of the Gujarat High Court in Criminal Revision Nos.
485 486/77.
V. B. Patel and section C. Patel for the Appellant.
G. J. L. Nain, Girish Chander and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal .
Appeals Nos. 606 and 607 of 1979 both of which are directed against a judgment of a Division Bench of the High Court of Gujarat dated the 19th January 1979 upholding the conviction recorded against and 442 the sentences imposed upon the three appellants under section 22A of the Minimum Wages Act (hereinafter called the Act) in each of two cases by a Judicial Magistrate at Morvi.
Some of the facts leading to the prosecution of the appellants are not in dispute and may be shortly stated.
Appellant No. 3 is the Morvi Vegetable Products Ltd., a limited company carrying on the business of manufacture and sale of vegetable oil and vanaspati in Morvi.
Appellant No. 1 is the Managing Director and appellant No. 2 the Secretary of appellant No. 3 which is hereinafter referred to as the company.
On May 2, 1973 Kumari J. G. Mukhi, who is a Government Labour officer cum Minimum Wages Inspector, visited the Company 's establishment and found that the following documents which, according to her, the Company was bound to maintain in compliance with the provisions of section 18 of the Act read with the relevant rules of the Gujarat Minimum Wages Rules, 1961, had not been maintained by it.
(a) Muster Roll in Form V as contemplated by rule 26(5).
(b) Wage Register in Form IV A as required by rule 26(]).
(c) Attendance cards in form V D as provided by rule 26(B).
(d) Wage slip in form IV B prescribed by rule 26(2).
In consequence, two complaints were filed against the appellants by N. H. Dave, Labour officer cum Minimum Wages Inspector.
Rajkot in the court of the trial Magistrate, each praying that the appellants be convicted and sentenced for an offence under section 22A of the Act.
One of the complaints was in respect of the contravention of rules 26(1) and 26(S) while the other embraced that of rules 26(2) and 26 B. They were registered as Criminal Cases Nos. 674 and 675 of 1973 respectively.
At the trial the appellants pleaded not guilty.
Their defence consisted mainly of the following pleas: (a) Different types of industries are covered by the Act but the Company does not run any such industry and is, therefore.
not liable for any contravention of the Act or the rules framed thereunder.
According to the prosecution the factory run by the Company is an oil mill, an industry which is certainly covered by the Act.
However, the Company is running a mill which manufactures vanaspati and vanaspati is not an oil but is vegetable ghee.
Oil extraction is no doubt 443 a major operation carried on by the Company but that operation is merely incidental to the preparation of vanaspati.
No separate licence for the oil expelling machinery used by the Company has been obtained from the State Government nor has sales tax been paid on the oil extractor by the Company.
Vanaspati is manufactured by subjecting oil to the processes of neutralization, bleaching, deodorisation, hardening, hydrogenation, etc.
and is a product quite different from oil.
(b) The Company does not carry on the business of sale of the oil manufactured by it except as an operation incidental to the manufacture of vanaspati, e.g., when there is a breakdown of the machinery used for converting oil into vanaspati or when oil become surplus on account of a shift in the Government policy in regard to the percentage of oil to be , consumed by the Company.
In spite of the sale of oil, therefore, the Company remains a vanaspati manufacturer and cannot be considered to be running an oil mill.
(c) Under section 5 of the Act committees were appointed by the Government from time to time to hold inquiries and advise it in respect of fixation or revision of minimum rates of wages for employees in various industries.
No representative of the vanaspati industry was taken on any of these committees nor was any questionnaire issued to any of the manufacturers of vanaspati, with the result that the Company was not bound by the recommendations of those committees or decisions taken in pursuance thereof by the Government.
(d) In respect of oil mills rates of minimum wages were fixed under the Act by the Government for three types of employees, namely, skilled, semi skilled and unskilled.
Apart from these a vanaspati manufacturer has to arrange for the services of other types of employees which shows that a vanaspati manufacturing mill is different from an oil mill.
After the trial the learned Magistrate repelled all the pleas taken up by the appellants in his judgment dated October 13, 1975.
His findings were as follows: (i) The Company no doubt manufactured oil from oil seeds and subjected the same to further processes in order to produce .
vanaspati.
However, the Company was selling not only the vanaspati manufactured by it but also oil and refined oil as such in addition to oil cakes and de oiled cakes, which was being done not merely in exigencies pleaded by the Company but in the regular course of business.
444 (ii) One of the committees appointed by the Government under section S of the Act had issued a questionnaire to the Company itself before making recommendations regarding fixation and revision of minimum wages for various kinds of employees working in an oil mill and it was not, therefore, open to the Company to contend that no opportunity was given to it to be heard in relation to such fixation and revision.
(iii) The Company was an oil mill within the meaning of that expression as used in item S of Part I of the Schedule to the Act and the Act, therefore, is applicable to it.
It was in these premises that the learned Magistrate convicted the three appellants, in both the cases tried by him, of an offence under section 22 A of the Act.
The sentence imposed in consequence was a fine of Rs. 50 on each of the appellants in each case.
The appellants filed before the Sessions Court two applications for revision of the order of the learned Magistrate, one pertaining to each case.
Those applications where transferred by the High Court to Its own file for reasons which are not relevant for the purpose of these appeals.
The pleas raised before the learned Magistrate were reiterated on behalf of the appellants at the argument stage in the High Court but were again repelled with the result that both the applications were dismissed by the impugned judgment.
The High Court took into consideration various provisions of the Act and came to the conclusion that the same would apply to the Company only if it could be held to be running an oil mill and thus falling within the ambit of item S aforesaid.
In holding that the factory run by the Company was such a mill the High Court made the following points: (a) Vanaspati is nothing but hydrogenated vegetable oil and, therefore, only vegetable oil which has been subjected to certain processes.
It remains an oil in, spite of those processes and is not essentially different therefrom.
(b) The finding arrived at by the learned Magistrate that oil ', refined oil, oil cakes and de oiled cakes were being sold by the Company not merely as an operation incidental to the business of manufacturing vanaspati but in the regular course of business is a finding of fact and cannot be called in question.
in revision.
Part of the mill is, therefore, in any case, an oil mill.
(c) The Company was issued a questionnaire in its capacity as an oil mill by the committee appointed by the Government.
445 It cannot, therefore, urge that it had no opportunity to pre A sent its case before the committee which made recommendations in regard to fixation and revision of minimum wages.
A survey of the various relevant provisions of the Act may be useful at this stage.
Section 2 contains definitions.
Clause (e) of that section defines an 'employer ' as a person who employs one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under the Act.
According to clause (g) of the same section a 'scheduled employment ' means any employment specified in the Schedule to the Act or any process or branch of work forming part of such employment.
The Schedule is in two parts.
Part I enumerates various employment.
Item S of that part reads: "Employment in any oil mill" Section 5 lays down procedure for the fixation and revision of mini mum rates of wages in respect of any scheduled employment by the Government which is authorised to appoint as many committees or subcommittee as it considers necessary to hold inquiries and advise it in respect of such fixation or revision.
Section 9 deals with the com position of the aforesaid committees and reads thus: "Each of the committees, sub committees and the Advisory Board shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one third of its total number of members: one of such independent persons shall be appointed the chairman by the appropriate Government.
The following corollaries are immediately deducible from the provisions of the Act above noted: (i) For an employer to be covered by the Act the following conditions must be fulfilled: (a) he must be employing one or more employees in any scheduled employment; (b) minimum rates of wages for such scheduled employment must have been fixed under the Act, and (c) if a committee has been appointed by the Government under section S in respect of such scheduled employment it must consist of persons representing employers and employees in the scheduled, employment who shall be equal in number.
446 (ii) Employment in an oil mill is a scheduled employment.
It is not disputed that the company is not covered by any of the items enumerated in Part I of the Schedule to the Act.
except item section The most important point to be determined in the case.
there fore.
is whether employment in a vanaspati manufacturing concern would fall within the ambit of item S of part I of the Schedule to the Act.
i.e., whether it is an employment in an oil mill or not.
The only argument advanced on behalf of the appellants in this connection is, as it was before the two courts below, that vanaspati is a form of ghee which is not an oil; and this contention we find to be without force.
Vanaspati, in our opinion, is essentially an oil although it is a different kind of oil than that oil (be it rapeseed oil, cotton seed oil, ground nut oil, soya bean oil or any other oil) which forms its basic ingredient.
Oil will remain oil if it retains its essential properties and merely because it has been subjected to certain processes would not convert it into a different substance.
In other words, although certain additions have been made to and operations carried out on oil, it will still be classified as oil unless it.
, essential characteristics have undergone a change so that it would be a misnomer to call it oil as understood in ordinary parlance.
The word 'oil ' i.: not defined in the Act and therefore.
its dictionary meaning may well be pressed into service for interpreting the term 'oil mill '.
According to Webster 's Third New International Dictionary (1966 edition) the word 'oil ' has different connotations in different situations but in the context of item .
5 aforesaid the meaning to be given to it would be: "any of various substances that typically are unctuous viscous combustible liquids or solids easily liquefiable on warming and are not miscible with water but are soluble in ether, naphtha, and often alcohol and other organic solvents, that leave a greasy not necessarily permanent stain (as on paper or cloth), that may be of animal, vegetable, mineral, or synthetic origin, and that are used according to their types chiefly as lubricants, fuels and illuminates as food.
in soap and candles, and in perfumes and flavouring materials".
All the ingredients of this meaning are fully satisfied in the case of hydrogenated vegetable oil.
We may specially point out that even solids easily liquefiable on warming fall within the meaning given by Webster.
Now the various processes, namely, neutralization, bleaching, deodorisation, hardening and hydrogenation to which oil is subjected for being converted into vanaspati leave its basic characteristics untouched, i.e, it remains a cooking medium with vegetable fat as its main ingredient.
Neutralisation, bleaching and deodorisation 447 are merely refining processes so that the colour, the odour and foreign A substances are removed from it before it is hydrogenated and hardened and even the two processes last mentioned allow the oil to retain whose characteristics.
Even ghee, for that matter, is nothing but a form of oil although it is obtained from animal fat, being a derivative from milk.
It may be of use to mention that in Persian language ghee is known as 'raughan zard ', i.e., yellow oil, and it does not need an expert to point out that the viscosity of ghee depends upon the weather because with the rising temperature during summer months it turns into liquid while the cold of December and January solidifies, it.
Nonetheless it remains an oil and it makes no difference that it is called ghee in ordinary parlance.
The word is merely a different name for an oil which is not derived from vegetables.
From that point of view the term 'vegetable ghee ' is a contradiction in terms, ghee being essentially an animal fat.
The reason why i has come to be called vegetable ghee appears to be that in its finished form it resembles ghee in appearance and viscosity and is also considered a more respectable form of cooking medium when so called, thus catering to the psychological satisfaction of the consumer.
We pointedly asked learned counsel for the appellants if he could indicate any difference between vegetable oil and vanaspati which would essentially distinguish the former from the latter, either in physical or chemical properties or in food value.
No such difference was indicated and all that he said was that vanaspati would normally be available in solid state and had the appearance of ghee rather than that of any oil.
This, in our view, is a superficial difference which does not at all go to the root of the matter.
Accordingly we hold that vanaspati must be regarded as an oil for the purpose of the aforesaid item 5 in spite of all the processes to which the oil forming its base has been subjected in order to convert it into the finished product.
Although the finding just above arrived at obviates the necessity of our determining the question whether the Company would be an oil mill even if vanaspati were not considered to be an oil, we have every reason to answer that question in the affirmative in view of the finding arrived at by the learned Magistrate that the Company sells oil in its unhydrogenated form not only when the exigencies pointed out by it arise but also otherwise and in the regular course of business.
That finding being a finding of fact is no longer open to challenge; and that being so, the operation of sale of oil as such would make the Company an oil mill even if the bulk of the oil produced by it is converted into vanaspati and sold in that form The reason is obvious.
It is not the case of the Company that the proportion 448 Of sales of oil to those of vanaspati is so low that the former should be ignored.
In this situation a sizeable part of the activities of the Company must be field to be connected with running an oil mill and the Company, therefore would be liable to be classified as such to that extent even though it also carries on business other than that of selling oil.
The grouse of the Company that the provisions of sections 5 and 9 have not been complied with has for its basis the assumption that it is not an oil mill an assumption which must be held to be ill founded in view of the foregoing discussion and the classification of the company with reference to item S in Part I of the Schedule to the Act.
It is not disputed that if the Company is to be regarded as an oil mill, sections S and 9 do not come to its rescue because representatives of oil mills did man the committee appointed by the Government for fixing the minimum rates of wages in respect of employment in an oil mill and that the Company itself (as well as other oil mills) was invited through a questionnaire to submit their views and thus were given the opportunity to be heard in relation to the fixation of such wages.
The only other contention raised on behalf of the appellants was that while the relevant notification issued by the Government has fixed rates of wages in respect of skilled, semi skilled and unskilled employees working in oil mills, the Company employs other types of workers in connection with the process of hydrogenation of vegetable oil and that such workers do not form the subject matter of the committee 's deliberations or the Government 's attention.
This contention is also without substance.
We asked the learned counsel for the appellants to point out which of the employees of the Company fell outside the three categories just above specified and he was unable to name any.
(obviously the said three categories exhaust the types of workers which would be employed in any undertaking, barring of course specialists and technical experts who admittedly do not fall within the category of employees embraced by the Act.
It is not disputed that if the Company is an oil mill it is guilty of all the contraventions of which it has been convicted.
Nor has any argument been advanced to the effect that the sentences awarded are excessive.
In he result, therefore, both the appeals fail and are dismissed S.R. Appeals dismissed.
| IN-Abs | The appellants were convicted and sentenced for two offences under Section 22A of the Minimum Wages Act for contravention of rules 26(1), 26(2), 26(5) and 26B of the Gujarat Minimum Wages Rules, 1961.
The sentence imposed in consequence was a fine of Rs. 50 on each of the appellants in each case.
The trial court as well as the High Court took into consideration various provisions of the Act and came to the conclusion that the appellant 's mill fell within the ambit of Item 5 of Part I of Schedule to the said Act.
Dismissing the appeal by special leave, the Court ^ HELD: (1) The appellant 's Company would be an oil mill within the meaning of Item 5 of Part I of the Schedule to the Act.
[448 C] (2) The various provisions of the Minimum Wages Act make it clear: (i) For an employer to be covered by the Act three conditions must be fulfilled; [445F] (a) he must be employing one or more employees in any scheduled employment; [445 G] (b) minimum rates of wages for such scheduled employment must have been fixed under the Act; and [445 G] (c) if a committee has been appointed by the Government under Section 5 in respect of such scheduled employment it must consist of persons representing employers and employees in the scheduled employment who shall be equal in number.
[445 H] (ii) Employment in an oil mill is a scheduled employment.
[446 A] In the instant case it cannot be said that these conditions are not satisfied.
[446 A] (3) Vanaspati is essentially an oil although it is a different kind of oil other than that oil (be it rapeseed oil, cotton seed oil, ground nut oil, soya bean oil or any other oil) which forms its basic ingredient.
Oil will remain oil if it retains its essential properties and merely because it has been subjected to certain processes would not convert it into a different substance.
In other words, although certain additions have been made to and operations carried out on oil, it will still be classified as oil unless its essential characteristics have undergone a change so that it would be a misnomer to call it oil as understood in ordinary parlance.
No doubt, the word 'oil ' is not defined in the Act.
Taking the dictionary meaning for interpreting the term 'oil mill ', in this case it is clear that hydrogenated vegetable oil falls within the said term.
[446 C G] 441 The various processes, namely, neutralization, bleaching, deodorisation, hardening and hydrogenation to which oil is subjected for being converted into vanaspati leave its basic characteristics untouched, that is, it remains a cooling medium with vegetable fat as its main ingredient.
Neutralisation, bleaching and deodorisation are merely refining processes so that the colour, the odour and foreign substances are removed from it before it is hydrogenated and hardened and even the two processes last mentioned allow the oil to retain those characteristics.
Even ghee, for that matter, is nothing but a form of oil although it is obtained from animal fat, being a derivative from milk.
Whether it liquefies in summer and solidifies in winter, nonetheless, ghee remains an oil and it makes no difference that it is called ghee in ordinary parlance.
The word ii merely a different name for an oil which is not derived from vegetables.
From that point of view the term 'vegetable ghee ' is a contradiction in terms, ghee being essentially an animal fat.
The reason why it has come to be called vegetable ghee is that in its finished form it resembles ghee in appearance and by viscosity and is also considered a more respectable form of cooking medium when so called, thus catering to the psychological satisfaction of the consumer.
Thus vanaspati must be regarded as an oil for the purpose of Item S in Part I of the Schedule to the Act in spite of the processes to which the oil forming its base has been subjected in order to convert it into the finished product.
[446H, 447A D; F] Further, in the instant case: (1) there is a clear finding of fact which is no longer open to challenge, that the company sells oil as such and also oil cakes which brings the Company within the meaning of an oil mill (2) the Company being an oil mill and oil Mills having been represented on the Committee formed by the Government and opportunity having been afforded to the appellants by that committee to represent their case.
Sections 5 and 9 of the Act are not applicable, and (3) the three categories, namely, skilled, semi skilled and unskilled employees exhaust the types of workers which would be employed in any undertaking (barring of course specialists and technical experts who admittedly do not fall within the category of employees embraced by the Act) and minimum wages were fixed for all those three categories.
The appellants ' contention therefore, that for any of the provisions of the Act were contravened is thus not tenable.
[447 G H, 448 D, E F]
|
Civil Appeal No. 1390/1978.
Appeal by special leave from the Judgment & Order, dated 26 3 1976 of the Punjab & Haryana High Court in Civil Writ Petition No 506/76.
Baldev Raj in person.
U.R. Lalit and Miss A. Subhashini for the Respondent.
432 The Judgment of the Court was delivered by KRISHNA IYER, J.
The appellant, an Accounts Officer compulsorily retired betimes, appearing in person, has painstakingly and proficiently presented his case which calls for mercy, if not justice obsession with one 's own case and inability to see things in perspective are often a frailty of a party who spends the enormity and anguish of his superannuated leisure on the main pursuit of his litigative points, and this makes for prolixity and subjectivity of submissions, which are not the persuasive but the provocative part of the art of advocacy.
Even so, we have listened with sympathy to the studious orality and read with patience the manuscript arguments emanating from the appellant.
He was an Accounts officer since December 30, 1961, having been so promoted and appointed by the Comptroller and Auditor General of India (C & AG).
The story of his career was snapped when he was compulsorily retired 'in the public interest ' on August 27, 1975 under; F.R. 56(j)(i) by the Accountant General (A.G.).
Had he run his full course, his continuance until April 1980 would have been sure.
Finding himself an uneasy casualty when the easy axe of F.R. 56(j)(i) fell on him, the appellant challenged the premature retirement in the High Court only to be greeted with a dismissal in limine.
Here he has arrived by special leave and argued before us that his forced retirement is dubious and violative, in many ways, of F.R. 56(j)(i).
The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service.
But potential compulsory retirement under F.R. 56(j)(i) haunting the afternoon of official life injects an awesome uncertainty which makes even the honest afraid, the efficient tremble and almost everyone genuflect not a happy prospect for a civil servant too young to sit idle and too old to get a new job.
A jetsam has no option but to become driftwood or join the other profession where everyone, desirable and undesirable, has a chance.
We stress his deleterious latency of F.R. 56(j)(i) to underscore the unwitting harm to public interest it does in the name of public interest.
Judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim.
The grounds on which the order of retirement has been challenged by the appellant may be formulated immediately after quoting the rule itself: 56(j): Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is the public interest to do so have the absolute right to retire any 433 Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice.
(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years after he has attained the age of fifty years.
Note 1: Appropriate authority, means the authority which has the power to make substantive appointment to the post or service from which the Government servants is required or wants to retire.
A break down of the provision brings out the basic components.
The order to retire must be passed only by 'the appropriate authority '.
That authority must form the requisite opinion not subjective satisfaction but objective and bona fide and based on relevant material.
The requisite opinion is that the retirement of the victim is 'in public interest ' not personal, political or other interest but solely governed by the interest of public service.
The right to retire is not absolute, though so worded.
Absolute power is anathema under our constitutional order. 'Absolute ' merely means wide, not more.
Naked and arbitrary exercise of power is bad in law.
These essentials once grasped, the appellant 's submissions become self evident.
His principal contentions, not all the secondary details, alone need detain us.
His first challenge is to the competence of the Accountant General compulsorily to retire him because, according to the appellant, he is not the 'appropriate authority ' within the meaning of the rule.
The appointing authority who actually appointed the appellant was the C & AG, but the A.G. retired him on the assumption that he had the requisite power.
Article 311(1) insists that a civil servant shall not be dismissed or removed by an authority "subordinate to that by which he was appointed".
The appellant, by parity of reasoning, argues that the A.G., being subordinate to the C & AG, has no power to retire him.
The fallacy in the argument lies in the confusion between 'dismissal ' and 'compulsory retirement '.
The two cannot he equated and the constitutional bar cannot be operative.
Therefore, we have to find, on an independent enquiry, as to who is the appropriate authority under r. 56(j)(i).
Under Note 1 to F.R. 56, the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said rules.
From this Note, which is virtually a part of the rule, the respondents contend that the power of the appropriate authority in respect of 434 Accounts Officers like the appellant has been vested in the A.G. by Notification of the Ministry of Finance dated 29 11 1972.
Since the A.G. has been clothed, from that date, with power to appoint substantively Accounts Officers, he has become the appropriate authority for compulsory retirement even though the appellant Accounts Officer had been appointed by the & AG prior to 29 11 1972.
In the light of the note which is part of the rule, read with the notification delegating the power to the A.G., we see no flaw in the order impugned.
No doubt, ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered.
There, the specific provision in the Note to FR 56 must hold good and article 311 is not violated either.
Nor is there any discrimination, as contended for, because retirement is a category different from the punishments covered by article 311.
Who is the retiring authority on a given date? This is answered by the Note which, in substance, says that he who is empowered to appoint the Accounts officer is also the appropriate authority to retire compulsorily, on that date.
In this view, we cannot nullify the retirement of the appellant for want of competence.
This takes us to the meat of the matter, viz., whether the appellant was retired because and only because it was necessary in the public interest so to do.
It is an affirmative action, not a negative disposition, a positive conclusion, not a neutral attitude.
It is a terminal step to justify which the onus is on the Administration, not a matter where the victim must make out the contrary.
Security of tenure is the condition of efficiency of service.
The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow.
At the age of 50 when you have family responsibility and the sombre problems of one 's own life 's evening!, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by 'what will happen to me and my family? ' 'Where will I go if cashiered? ' How will I survive when I am too old to be newly employed and too young to be superannuated? ' These considerations become all the more important in departments where functional independence.
fearless scrutiny, and freedom to expose evil or error in high places is the task.
And the ombudsmanic tasks of the office or audit vested in the C & AG and the entire army of monitors and minions under him are too strategic for the nation 's financial health and discipline.
that immunity from subtle threats and oblique overawing is very much in public interest.
So it is that we must emphatically state that 435 under the guise of 'public interest ' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal.
To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected.
The exercise of power must be bona fide and promote public interest.
There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in.
public interest.
When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of 'public interest ' justifying forced retirement of the public servant.
Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations.
The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest.
We will consider this question to the extent disclosed by the record and in the light of the submissions made by both the parties.
The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by article 311 of the Constitution.
After all, administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies.
They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insufficient, unintelligent or dubious conduct impede the flow or promote stagnation, in a country where speed, sensitivity, probity.
and non irritative public relations and enthusiastic creativity are urgently needed but paper logged processes and callous cadres are the besetting sin of the Administration.
It is in public interest to retire a never do well, but to juggle with confidential reports when a man 's career is at stake is a confidence trick contrary to public interest.
Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making.
The appropriate authority, not the court, makes the decision, but, even.
so, a caveat is necessary to avoid misuse We are inclined to ignore the case that the appellant was retired because he had declined 'to proceed on leave forcibly in September 1974 '.
While it is reprehensible for Government or any in the higher 436 echelons to compel a civil servant to go on leave on pain of being suspended, retired or transferred to a far off place or indifferent post and the court may readily infer mala fides in the subsequent order if there is proof of antecedent pressure to take forced leave we cannot judge the legality of a compulsory retirement on suspicions and apprehensions invariably urged even by deserving victims.
Let us look at the facts from these broad lines of Law.
The A.G. has, in vindication of his action, submitted that "the impugned order of compulsory retirement was made by the Accountant General on the basis of the recommendations dated 23 8 1975 of the Reviewing Committee constituting the following officers: 1.
Accountant General 2.
Senior Deputy Accountant General (IC) 3.
Senior Deputy Accountant General (Administration) Punjab 4.
Deputy Accountant General (Administration) Office of the Accountant General, Haryana.
The said Committee reviewed the service record of the appellant and found adverse entries in various confidential reports, and inter alia, held that the appellant was unable to perform his duty efficiently and effectively in the post held by him and recommended compulsory retirement under FR 56(j)(i).
The appellant was accordingly retired by the Accountant General on 27 8 1975".
We are not inclined to agree with the appellant that the Reviewing Committee is an illegal body and taking its recommendations into consideration vitiates the A.G. 's order.
On the other hand, it is clear that the decision to retire is surely that of the A.G., and the Reviewing Committee 's presence is persuasive, not decisive, and prevents the opinionatedness of one by the collective recommendations of a few.
Now we will enter the substantive dispute and search for the presence of public interest as the basis of the impugned order.
The A.G., Mr. Khanna has, in his affidavit in this court, sworn: In this connection I respectfully submit that the Petitioner 's work was found to be below average and that fact was noted by the appropriate authority in the confidential reports of the 437 petitioner as per details given below: ____________________________________________________________ Period of Adverse Remarks Date of Report Communication ____________________________________________________________ 1961 62 Yes.
An Average Officer.
Though he did try to tackle the arrears in the GAD section under his charge.
I was unhappy to observe that he was trying to shield those who shirked work.
I also noticed that while he was anxious to bring to my notice persons who did their duties well, he was willing to play down the lapse on their part, if any, without adequate justification.
5.12.1962 14.12.64 A mediocrity who should take more Adverse to interest in the work remarks 20.3.65 noted on 15.1.66 29.7.69 Industry and application.
Poor to 15.11.70 Ability to organise and manage Poor, sections competently.
Adverse remarks communica ted on May 1970.
General Assessment:An average officer who would do better if he showed more initiative and resourcefulness.
1.4.70 1.Technical ability:Below average to 3(a) Ability to organise and manage 9.12.70 sections competently.
Poor (b) Ability to control subrodi nates and get the best out of them.
Poor 10.
General Assessment:Below Adverse Average.
My remarks against remarks 1,3(a)(b) and 10 may be seen.
communica The performance of Shri ted, on Chaddha as the officer in 29th Sept. charge of the Account Current 1971.
sections was not upto the mark and consequently he had to be given a change.
This officer is definitely below average.
438 The aforementioned adverse remarks in the confidential reports of the petitioner were communicated in all the cases to the Petitioner and the Petitioner made representation which was rejected by the competent authority after due consideration.
At the time of the review of the retention of the petitioner and other accounts officers, a Committee consisting of Accountant General, Senior Deputy Accountant General (IC), Senior Deputy Accountant General, (Admn.), Office of the Accountant General, Haryana was constituted to review the cases of the Accounts officers for their retention, on their attaining the age of 50 years.
The said Committee was constituted on 23 8 1975.
The said Committee after careful assessment of the performance of the employees concerned depicted in their confidential reports found that the persons including the Petitioner who were not able to perform their duty efficiently and effectively in the posts held by them at that time and the Committee therefore recommended to retire the Petitioner among others under F.R 56(j)(i).
A copy of the minutes of the meeting held is annexed herewith as Annexure Y. The Reviewing Committee report runs thus: "The Committee after a careful assessment of the performance of the employees concerned as depicted in their confidential reports have come to the conclusion that the persons mentioned below are not able to perform efficiently and effectively the duties of the posts held by them.
(1) Shri Baldev Raj Chadda, Accounts Officer.
" A bare glance at the confidential reports of the appellant brings out the striking fact that they relate to 1961 62 to the end of 1970.
The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade, without let or hindrance.
What is far more significant is the further fact that the Reviewing Committee and the A.G. appear to have ignored entries in yearly/half yearly reports in the seventies.
The appellant states categorically: "A perusal of the extract from the Confidential reports would show that there were no adverse remarks in the Confidential Reports of the Appellant for the year 1971 72, 1972 73, 1973 74, 1974 75 and 1975 76 till the date of his retirement from service on 27 8 75." He further rightly points out that the stand of the A.G. before the High Court was that the impugned order was not grounded on the adverse entries: Since the adverse entries in the Confidential Reports of the petitioner were not, in terms, stated to be the ground for exer 439 cising the powers under F.R. 56(j), it was not necessary for the Respondent to deal with the various allegations levelled by the petitioner against the higher authorities in this regard.
We must read these materials against the further background set out by the appellant: If I was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action.
This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R. 56(j).
One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms.
A short cut may often be a wrong cut.
The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision.
Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law.
Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained.
Legality depends on regard or the totality of material facts viewed in a holistic perspective.
For these reasons, the order challenged is obviously bad and we quash it.
It is, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles.
The appellant has, by now, reached the age of superannuation in the normal course.
The result is that the consequence of any fresh order may only be financial.
It is for the A.G. to consider whether in the circumstances, a fresh evaluation for the purpose of compulsory retirement is called for.
We merely allow the appeal, quash the order of compulsory retirement and leave the law to take its course.
The appellant will be entitled to costs which we quantify at Rs. 2,000.
N.K.A. Appeal allowed.
| IN-Abs | The appellant, an accounts officer, was promoted and appointed by the Comptroller and Auditor General of India.
He was compulsorily retired on 27th August, 1975 in the public interest under F. R. Rule 56(j)(i) by the Accountant General.
The appellant challenged his pre mature retirement in the High Court by a Writ Petition which was dismissed in limine.
In his appeal by Special Leave, the appellant challenged the order of retirement and argued that (i) the Accountant General is not "appropriate authority" within the meaning of the rule and (ii) the retirement was not in the public interest.
The respondent contended that (i) the power of the appropriate authority in respect of accounts officers like the appellant was vested in the Auditor General by Notification of the Ministry of Finance dated 19 1 1972 and (ii) the impugned order of compulsory retirement was made by the Accountant General on the basis of the recommendations dated 23 8 1975 of the Reviewing Committee.
Allowing the appeal.
^ HELD: An officer with continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement cannot be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms.
The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision.
[439D E] Any order which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts bearing on the decision is bad in law.
Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained.
[429 F] The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service.
But potential compulsory retirement under F. R. 56 (j) (i) haunting the afternoon of official life injects an awesome uncertainty which makes even the honest afraid.
the efficient tremble and almost everyone genuflect, and is not a happy prospect for a Civil Servant too young to sit idle and too old to get a new job.
A jetsam has no option but to become driftwood or join the other profession where everyone, desirable and undesirable, has a chance.
This deleterious latency 431 of F.R. 56(j)(i) is stressed to underscore the unwitting harm to public interest it does in the name of public interest.
Judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim.
[432 E G] The order to retire must be passed only by the appropriate authority.
That authority must form the requisite opinion not subjective satisfaction hut objective and bona fide and based on relevant material.
The requisite opinion is that the retirement of the victim is in public interest not personal political or other interest but solely governed by the interest of public service.
The right to retire is not absolutely, though so worded.
[433 C D] Since the A.G. has been clothed, from 29 11 1972 with power to appoint substantively Accounts officers, he has become the appropriate authority for compulsory retirement even though the appellant had been appointed by the C & AG prior to 29 11 1972.
In the light of the note which is part of the rule, read with the notification delegating the power to the A.G., there is no flaw in the order impugned.
[434 A B] Ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered.
The specific provision in the Note to FR 56 must hold good and article 311 is not violated either.
Nor is there any discrimination, because retirement is a category different from the punishment covered by article 311.
[434C] Security of tenure is the condition of efficiency of service.
The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow At the age of 50, your experience, accomplishment and fulness of fitness become an asset to the Administration, if any only if you are not harried or worried.
These considerations become all the more important in departments where functional independence, fearless scrutiny, and freedom to expose evil or error in high places is the task.
And the Ombudsmanic tasks of the office of audit vested in the C & AG and the entire army of monitors and minions under him are too strategic for the nation 's financial health and discipline that immunity from subtle threats and oblique overawing is very much in public interest.
Under the guise of public interest if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace of public interest and must fail for unreasonableness, arbitrariness and disguised dismissal.
The exercise of power must be bona fide and promote public interest.
[434 F H, 435 A B] Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations.
Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies.
It is in public interest to retire a never do well, but to juggle with confidential reports when a man 's career is at stake is a confidence trick contrary to public interest.
Confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making.
[435D, E G]
|
ivil Appeal Nos. 815 and 1284 of 1978 Appeals by special Leave from the Judgment and order dated 20 12 1977 of the Delhi High Court in Civil Writ No. 616176.
Soli J. Sorabjee, A. C. Gulati, A. K. Ganguli, G. section Chatterjee and B. B. Swahney for the Appellant in CA No. 815/78.
Lal Narain Sinha, Att.
Miss A. Subhashini and Girish Chandra for the Appellant in CA No. 1284 and Respondent No. 1 in CA No. 815178.
The Judgment of the Court was delivered by SEN, J.
These appeals by special leave against a judgment of the Delhi High Court turn on the construction of certain provisions of the .
The appeals raise a question of far reaching importance namely, whether a raising contractor of a coal mine is an owner within the meaning of sub section
(1) of section 4 of the (hereinafter referred to as the Nationalisation Act), and if so, whether the fixed assets like machinery, plants, equipment and other properties installed or brought in by such a raising contractor vest in the Central Government.
They also give rise to a subsidiary question, namely, whether subsidy receivable from the erstwhile Coal Board established under section 4 of the upto the specified date, from a fund known as Conservation and Safety Fund, by such raising contractor prior to the appointed day, can be realised by the Central Government by virtue of their powers under sub section
(3) of section 22 of the Nationalisation Act, to the exclusion of all other persons including such contractor and applied under sub section
(4) of section 22 towards the discharge of the liabilities of the coking coal mine, which could not be discharged by the appointed day.
To make the points intelligible, it is necessary to state a few facts.
By an agreement dated February 7, 1969 made between Messrs Balihari Colliery Co. Pvt.
Ltd. (hereinafter referred to as the 'owner ' of the one part and Messrs Industrial Supplies Pvt.
Ltd. (hereinafter referred to as 'the petitioners ') of the other part, it was recited as follows: "WHEREAS the owners are the owners of a Working Colliery comprising an area of 800 Bighas more or less and known 379 as Balihari Colliery particularly described in the first Schedule A hereunder written held under the lease and subleases mentioned in the said Schedule and in connection therewith have built various structures, dhewrahs coolie lines (hereinafter referred to as the said buildings) and also installed and put up various machinery, plants, tools, implements and utensils (hereinafter referred to as the said machinery therein; AND WHEREAS the owners have appointed INDUSTRIAL SUPPLIES PRIVATE LIMITED as Managing Contractor of their said colliery and the said Managing Contractor has agreed to act as such Managing Contractor for the period and upon the terms and conditions herein contained:" Under the said agreement the petitioners were appointed to be the Managing Contractors of Kutchi Balihari Colliery for a period of 20 years.
Under cl. 7(a) the petitioners were required at their own cost to install fixed assets like equipment, machinery and plants and also invest in the form of current assets like stores in the said colliery and to work the same as raising contractors.
By cl.
7(b) the additional machinery so installed and the chattels and utensils so brought in by the petitioners were to remain the property of the petitioners absolutely and on the determination of the agreement they were entitled subject to the provisions of cl. 9, to remove such additional fixed assets and current assets.
Clause 9 gave an option to the owners to purchase the additional machinery, chattels and utensils referred to in cl. 7.
Clause 25 of the agreement is material for our purposes and it reads: "25.
That in case the said colliery is nationalised these presents shall stand determined and all moneys then due and owing by the owners to the Managing Contractor or by the Managing Contractor to the owners under the provisions hereof shall at once become due and payable by the owners to the Managing Contractor or by the Managing Contractor to the owners as the case may be.
If as result of such nationalisation the machinery, chattels and utensils installed at and/or brought into the said colliery by the Managing Contractor under the provisions of clause 7 of these presents or any one or more of them or the buildings and structures created by it at the said colliery under the provisions of clause 8 of these presents are taken over by the authorities concerned then and in such event the Managing Contractor shall be entitled to compensation payable for or attributable to the said machinery, chattels and utensils and the buildings and structures so taken over and the owners shall be entitled to receive compensation for all other properties comprised in the said colliery.
" 380 Under the said agreement, the petitioners installed from time to.
time various fixed assets like machinery, plants and equipment and erected structures and raised new roads within the said colliery and brought in various current assets and movables for the efficient working of the said mine.
The petitioners were also raising contractors in respect of another coking coal mine known as 'Khas Dharmaband Colliery ' owned by Messrs Khas Dharmaband Colliery Co. Pvt. Ltd., subsequently known as 'New Dharmaband Colliery '.
They had similarly brought over various assets including stores which were being used in the said colliery.
Under an agreement of October 1969, the New Dharmaband Colliery was brought over by Messrs Sethia Mining & Mfg. Corporation Ltd. An inventory was prepared of the assets like plants, machinery and stores belonging to the petitioners which were lying in the colliery, the value of which was approximately Rs. 1,21,000, On October 171 1971, the resident promulgated the Coking Coal Mines (Emergency provisions) ordinance 1971 to provide for .
the taking over by the Central Government, in the public interest of the management of 214 coking coal mines and 12 coke oven plants, including the coal mines in question, pending nationalisation of such mines.
The ordinance was replaced by the .
Thereafter, Parliament enacted the to complete the process of nationalisation of the coking coal mines and coke oven plants.
It was entitled as 'An Act to provide for the acquisition and transfer of the right, title and interest of the owners of the coking coal mines specified in the First Schedule and the right, title and interest of the owners of such coke oven plants as are in or about the said coking coal mines with a view to reorganising and reconstructing such mines and plants for the purpose of protecting, conserving and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the iron and steel industry and for matters connected therewith or incidental thereto ', "Appointed day" under section 2(a) of the was October 17, 1971, while that under section 3(a) of the , is May 1, 1972.
According to the petitioners, the total value of the fixed and current assets and movables of Kutchi Balihari Colliery taken over by the Central Government on October 17, 1971 was to the tune of Rs. 11,85,591.00.
As regards New Dharmaband Colliery they allege that between October 1969 and October 17, 1971, Messrs Sethia Mining 381 & Mfg. Corporation Ltd., had utilised some of the stores lying in the colliery to the extent of Rs. 50,000.00 and the balance of the stores lying in the colliery as on October 17, 1971 was approximately Rs. 72,000.00.
Since April 1969 when the petitioners became raising contractors of Kutchi Balihari Colliery and until October 17, 1971 when the management of the said colliery was taken over by the Central Government, the petitioners allege that they had undertaken, at their cost, operations for sand stowing and hard mining and had accordingly submitted bills to the Coal Board established under section 4 of the Coal Mines (Conservation and Safety) Act, 1952 for subsidy through the owners from time to time.
As on October 17, 1971 the amount of subsidy payable to them was about Rs. 4,50,000.
On May 5, 1976 the petitioners filed a Writ petition in the Delhi High Court seeking a declaration that sub section
(1) of section 4 does not provide for the acquisition of the right, title and interest of the petitioners inasmuch as being raising contractors they were not an owner within the meaning of section 3(n) of the Nationalisation Act and, therefore, they were entitled to dismantle and remove the fixed assets like machinery, plants and equipment installed in the two mines and also to remove the movables and current assets thereof like furniture, stores, etc.
and were further entitled to recover the amount of subsidy of about Rs. 4,50,000 collected by the Central Government from the erstwhile Coal Board.
They, accordingly, sought a writ or direction in the nature of mandamus requiring the Central Government to return the assets like machinery, plants, equipment and other assets and movables and all amounts collected by way of subsidy or other dues, or in any event pay Rs. 16,35,591 with interest thereon from May 1, 1972 till the date of payment.
The High Court substantially disallowed the claim of the petitioners, holding that they fall within the meaning of the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with section 2(1) of the and that as such the various machinery, plants, equipment and other filled assets, current assets and movables belonging to them lying in the two coal mines were included in the expression "mine" as defined in section 3(i) of the Nationalisation Act, and therefore, the right, title and interest of the petitioners therein stood vested in the Central Government under sub section
(1) of section 4 free from all incumbrances.
It, however, held that the amount of subsidy of Rs. 4,50,000 receivable from the Coal Board by way of reimbursement towards cost of sand stowing and hard mining operations carried on by the petitioners, could not be treated to be as an "amount due to the coking coal mine" within sub section
(3) of section 22 and, therefore, could not be 382 utilised by the Central Government under sub section
(4) of section 22 for discharge of the liabilities of the coking coal mine.
It was contended by the petitioners that they were neither the owners nor immediate occupiers or managing contractors of the coal mines in question, but were merely raising contractors thereof and, therefore, they did not come within the purview of the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with section 2(1) of the .
It was, therefore, said that the plants, equipment and machinery and other assets, and current assets and movables belonging to them as on October 17, 1971 could not, and did not, vest in the Central Government under sub section (1) of section 4 of the Nationalisation Act.
It was urged that the High Court was in error in construing the definition of the term 'owner ' as defined in section 2(1) of the so as to include a raising contractor, by laying emphasis on the words 'as if he were ' in the last sentence of the definition, and particularly so, because the Act itself, separately and/or clearly distinguishes between an 'owner ' and a 'contractor '.
It was further contended that due to the absence of the word 'includes ' in the last sentence, in the definition of 'owner ' in section 2(1) of the , a 'contractor ' cannot be treated to be an 'owner '.
It was said that the object of the fiction in section 2(1) of the was for the limited purpose of making such a raising contractor responsible for the due observance of the provisions of that Act and such a deeming provision could not be invoked for construing the purpose and object of the Nationalisation Act which were different, i.e., for the purpose of acquiring machinery, plants and equipment and other assets belonging to such raising contractor, lying within the mine, under sub section
(1) of section 4 of the Act.
We are afraid, we cannot accept these contentions.
The construction that is sought to be placed on the definition of 'owner ' in section 3(n) of the Nationalisation Act read with section 2(1) of the , upon the basis of which the argument proceeds would, if accepted, frustrate the very object of the legislation.
The Nationalisation Act provides by sub section
(1) of section 4 that the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule, on the appointed day, i.e., on October 17, 1971 shall stand transferred to and shall vest absolutely in the Central Government free from all incumbrances.
In the Nationalisation Act, 'owner ' is defined in section 3(n) thus: "3(n) "owner", (i) when used in relation to a mine, has the meaning assigned to it in the ; 383 (ii) when used in relation to a coke oven plant, means any person who is the immediate proprietor or lessee or occupier of the coke oven plant or any part thereof or is a contractor for the working of the coke oven plant or any part thereof ;" Section 2(1) of the reads as follows: "(1) "owner", when used in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidator or receiver and in the case of a mine owned by a company, the business whereof is being carried on by a managing agent, such managing agent; but does not include a person who merely receives a royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject to any lease, grant or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine; but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability;" In support of the contention that the petitioners could not be regarded as occupiers and, therefore, do not come within the definition of 'owner ' under section 3(n) of the Nationalisation Act, reliance was placed on the decision in The Chief Inspector of Mines & Anr.
vs Lala Karamchand Thapar etc.
While a raising contract may not be a lease and, therefore the contractor not a lessee, we find no reason why he should not be treated to be an occupier within the meaning of section 3(n).
Under the terms of the agreement dated February 7, 1969, the petitioners acquired complete dominion and control over the colliery in question for a period of 20 years.
It is common ground that the said agreement was by a registered instrument and even though this perhaps may not amount to a leases there can be no doubt that it was a licence coupled with a grant.
The petitioners were by virtue of cl. 7(a} of the agreement entitled to install at their own cost such additional machinery, tramways, ropeways etc.
, in connection with the transport of coal raised and to bring in chattels for the purpose of discovery and removal of coal.
They were entitled under cl 7(b} to remove such additional machinery that may be installed and such chattels and utensils as may be brought in by them to the said collieries unless of course, the owners exercised their option to purchase the same under cl. 9.
In view of these terms, it is futile to contend that the petitioners were not occupiers of the mines.
They had the actual use and occupation of the coal mine in question.
384 We have carefully gone through the judgment in Lala Karamchand Thapar 's case and, if we may say so, the decision is distinguishable on facts.
There the question was whether the managing agent of a company owning a colliery was an occupier of the colliery, and the Court negatived this observing: "From the very collocation of the words "immediate proprietor, or lessee or occupier of the mine", it is abundantly clear that only a person whose occupation is of the same character, that is, occupation by a proprietor or a lessee by way of possession on his behalf and not on behalf of somebody else is meant by the word "occupier" in the definition.
Thus, a trespasser in wrongful possession to the exclusion of the rightful owner would be an occupier of the mine, and so be an "owner" for the purpose of the Act.
" The Court further observed: "That must be because possession on behalf of somebody else was not in the contemplation of the legislature such "occupation" as to make the person in possession an "occupier" within the meaning of section 2(1)." These observations, if we may say so, with great respect, are rather widely stated.
They are indeed susceptible of a construction that a raising contractor being in possession on behalf of a proprietor or the lessee of a mine in possession is not an 'occupier ' within the meaning of section 3(n) of the Nationalisation Act read with section 2(1) of the .
We are quite sure that was not the intention of the Legislature.
There is no reason why the word 'occupier ' should not be understood to have been used in its usual sense, according to its plain meaning.
In common parlance, an 'occupier ' is one who 'takes ' or (more usually) 'holds ' possession: Shorter oxford Dictionary, 3rd edn., vol. 2, p. 1433.
In the legal sense, an occupier is a person in actual occupation.
The petitioners being raising contractors were, under the terms of the agreement dated February 7, 1969 entitled to, and in fact in actual physical possession and enjoyment of the colliery and were, therefore, an occupier thereof.
That being so, the petitioners being in possession, in their own right, by virtue of the substantial rights acquired by them under the agreement, were not in possession on behalf of somebody else and, therefore, the decision in Lala Karamchand Thapar 's case cannot apply.
It is next urged that the Nationalisation Act itself makes a distinction between an 'owner ' and a 'managing contractor ', there being separate provisions made with regard to both.
It is said that in view of this.
there is no legal justification to read the word 'contractor ' 385 for the word 'owner ' in sub section
(1) of section 4.
The contention is wholly misconceived and cannot be accepted.
The Nationalisation Act no doubt separately defines 'owner ' and 'managing contractor '.
The definition of managing contractor in section 3(i) reads: "3(i) "managing contractor" means the person, or body of persons, who, with the previous consent in writing of the State Government has entered into an arrangement, contract or under standing, with the owner of a coking coal mine or coke oven plant under which the operations of the coking coal mine or coke oven plant are substantially controlled by such person or body of persons ," The words and expressions used and defined in the Act have the meaning, respectively, assigned to them 'unless the context otherwise requires '.
The expression 'managing contractor ' finds place in Chapter VI, which deals with the power, functions and duties of the Commissioner of Payments appointed under sub section
(I) of section 20, for the purpose of disbursing the amounts payable to the owner of each coking coal mine or coke oven plant.
It appears in sub section
(2) of section 26, which provides: "(2) In relation to a coking coal mine or coke oven plant, the operations of which were, immediately before the 17th day of October, 1971 under the control of a managing contractor, the amount specified in the First Schedule against such coking coal mine or in the Second Schedule against such coke oven plant shall be apportioned between the owner of the coking coal mine or coke oven plant and such managing contractor in such proportions as may be agreed upon by or between the owner and such managing contractor, and in the event of there being no such agreement, by such proportions as may be determined by the Court.
" Under cl. 25 of the agreement, it was agreed upon between the parties that (i) in the event the colliery was nationalised, the agreement shall stand determine and all moneys then due and owing by the owners to the petitioners and vice versa shall at once become due and payable, and (ii) in the event of such nationalisation, if the machinery, .
chattels and utensils installed at and/or brought into the colliery by the petitioners or the buildings and structures erected by them are taken over by the authorities, they shall become entitled to compensation payable for or attributable to the said machinery, chattels and utensils and buildings and structures so taken over and the owners shall be entitled to receive compensation for all other properties comprised in the said colliery.
The expression 'managing contractor ' as defined in section 3(i) of the Nationalisation Act comes into play only 386 for the purpose of appointment of compensation under sub section
(2) of section 26.
The submission that the term 'owner ' used in sub section
(1) of section 4 of the Nationalisation Act excludes a 'managing contractor ' is against the scheme of the Act.
The term 'owner ' in sub section
(1) of section 4 of the Act must bear the meaning given in the definition contained in section 3(n).
It was asserted that the petitioners were really not the managing contractors but wrongly described as such in the agreement.
A bare perusal of the agreement would, however, be destructive of the argument.
It is a document drawn consisting of 46 clauses defining the mutual rights and obligations of the parties.
, The petitioners were conferred all the rights to work the mine for winning, getting and raising coal.
The so called 'remuneration ' payable to them was virtually the price of coal supplied leaving to the owners a margin of profit.
Even the liability for payment of rent, royalty, taxes etc.
, in relation to the mine was saddled on the petitioners.
In view of these terms, they cannot be heard to say that they were not the managing contractors though they have been so described in the preamble to the agreement and in each and every clause thereof.
It is, however, asserted that the functions of a managing contractor.
namely, appointment of managers, were not entrusted to the petitioners but were actually assigned to Messrs Madhusudan & Co. under a separate agreement.
The submission is spelled out from the terms of cl. 11 relating to employment of workers of the colliery.
All that was done was that the erstwhile owners had by this clause reserved to them selves the power to appoint managers.
Such reservation does not take the petitioners out of the definition of managing contractor under 6.
3(i) of the Nationalisation Act, as they still had substantial control over the mine.
The plea that not they but someone else was the managing contractor is only an after thought.
The petitioners having bound themselves by the terms of the agreement, cannot be permitted to escape from the provisions of sub section
(1) of section 4.
as they come within the purview of the definition of 'owner ' in section 3(n) of the Nationalisation Act.
It is then argued, in the alternative.
that the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with s: 2(1) of the does not in any event, include a raising contractor.
It is not suggested that a raising contractor does not come within the description of a contractor in section 2(1), but it is urged that the word 'includes ' is not there.
There was no need for Parliament to insert the word 'includes ' because of the words 'as if he were '.
Although the term 'owner ' in common parlance, in its usual sense, connotes ownership of a mine.
the term has to be understood in the legal sense, as defined.
387 Parliament, with due deliberation, in section 3(n) adopted by incorporation the enlarged definition of owner in section 2(1) of the to make the Nationalisation Act all embracing and fully effective.
The definition is wide enough to include three categories of persons: (i) in relation to a mine, the person who is the immediate proprietor or a assesses or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent.
such managing agent.
Each is a separate and distinct category of persons and the concept of ownership does not come in.
Then come the crucial last words: "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability".
The insertion of this clause is to make both the owner as well as the contractor equally liable for the due observance of the Act.
It is needless to stress that the contains various provisions for the safety of the mines and the persons employed therein.
In the case of a mine, the working whereof is being carried on by a raising contractor, he is primarily responsible to comply with the provisions of the Act.
Though a contractor for the working of a mine or any part thereof is not an owner, he shall be subject to the provisions of the Act, in the like manner 'as if he were an owner ' but not so AS to exempt the owner from any liability.
It is now axiomatic that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created.
After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
The Court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction.
The legal effect of the words "as if he were" in the definition of owner in section 3(n} of the Nationalisation Act read with section 2(1) of the is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so.
The oft quoted passage in the judgment of Lord Asquith in East End Dwelling Co. Ltd. Fine bury Borough Council brings out the legal effect of a legal fiction in these words: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have 388 flowed from or accompanied it.
The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
" The whole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein.
It provides by sub section
(1) of section 4 that on the appointed day, the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in the Central Government, free from all incumbrances.
Now unless the term 'owner ' in sub section
(1) of section 4 is given an extended meaning so as to include a contractor for the working of a mine or any part thereof, the very object of the legislation would be frustrated.
It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, i.e., by employment of raising contractors.
Any other construction would lead to a manifest absurdity and attribute to Parliament a result which it never intended.
It would result in the contractors escaping from the consequences of vesting under sub section
(1) of section 4 of the Act and permit them to dismantle and remove the additional machinery, plants and equipment which were being utilised for the working of mines.
This brings us to the next question, namely whether the amount of Rs. 4,50,000 receivable by the petitioners from the erstwhile Coal Board, was an amount impressed with a trust, being advanced for a specific purpose, i.e., for the purpose of stowing and other safety operations and conservation of coal mines, and could not be regarded as "any money due to the coking coal mines" within sub section
(3) of section 22 of the Act and the Central Government, therefore, could not appropriate the amount of subsidy and utilize it under sub section
(4) thereof for meeting the liabilities of the coking coal mines.
The conclusion of the High Court upon this point is contained in the following passage: "The amount of subsidy due could not be current assets of the coking coal mine because it had to be utilised for a certain definite specified purpose.
In the instant case cost of stowing and other safety operations had already been incurred and the subsidy was by way of reimbursement.
The amount was already identified as belonging to the petitioner and is on the analogy or in the nature of trust money impressed with a specific purpose." 389 In reaching that conclusion, it relied upon the decisions in Barclays Bank Ltd. vs Quistclose Investments Ltd. and Coal Products Private Ltd. vs I.T.O., which are both distinguishable.
They enunciate the principle that when property is entrusted for specific purpose, it is clothed with a trust.
It seems somewhat illogical that the equitable doctrine of resulting trust should be brought into play in the construction of the provisions of a legislation dealing with nationalisation like the .
In Barclays Bank Ltd. vs Quistclose Investments Ltd., the House of Lords dealt with a question as to rights of set off following the liquidation of a company.
The principle was applied to a sum of money lent to a company (later wound up) for a specific purpose, viz., payment of dividend, which was not implemented; the money, being still identifiable, was held to be impressed with a trust, and accordingly did not enure to the benefit of the general body of creditors, but was recoverable by the lender.
In Coal Products Private Ltd. vs I.T.O. there was an extension of this principle by a Single Judge of the Calcutta High Court to "assistance" which was payable to the assessee and was sought to be 1 attached by the Income tax Department by way of garnishee proceedings under section 226(3)(i) of the Income tax Act, 1961.
There was an application made for grant of assistance under r. 49 of the Coal Mines (Conservation and Safety Rules, 1952.
There were conditions attached to the grant under r. 54.
There was an affidavit filed before the Calcutta High Court showing that the grant was subject to the condition that it would be utilised for the purpose of stowing and other connected operations in the coal mine.
The High Court quashed the garnishee notice on the ground that the Income tax Department was not entitled to any part of the money for the payment of income tax liabilities of the assessee, as it could only be utilized for the purpose of stowing and other safety operations and conservation of coal mines.
F Two questions arise, both of which must be answered in favour of the Union of India.
The first is whether the payment of Rs. 4,50,000 was advanced for a special purpose, i.e., as 'assistance ' under r. 49 and not 'by way of reimbursement '.
The second is whether, in that event, the money having been advanced for a special purpose, and that being so clothed with a specific trust, it could not be adjusted by the Central Government under sub section
(4) of section 22 of the Nationalisation Act towards the liabilities of the coking coal mines.
It is not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board.
On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H 390 cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out.
If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub section
(3) of section 22.
The payment in question was not by way of 'assistance ' receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines.
In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement.
The payment of Rs. 4,50,000 was, therefore, one to reimburse for the expenditure already undertaken.
Indubitably, the amount in dispute was payable 'by way of reimbursement '.
The petitioners were, therefore, free to utilise the money in any manner they liked.
In other words, the grant was not impressed with any particular purpose or purposes.
Even if the subsidy receivable from the erstwhile Coal Board was by way of 'assistance ', the amount of Rs. 4,50,000 was recoverable by the Central Government in whom the coking coal mines have vested under sub section
(1) of section 4 of the Nationalisation Act and not by the petitioners.
It is, however, needless to stress that if the grant were by way of 'assistance ' under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event.
be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines.
For these reasons, the judgment of the High Court partly allowing the claim of the petitioners with regard to the subsidy amount of Rs. 4.50,000 is set aside, and the writ petition is dismissed: Accordingly, the appeal of the Union of India is allowed and that of the Industrial Supplies Pvt. Ltd., is dismissed with costs throughout.
Civil Appeal No. 815/78 dismissed, and Civil Appeal No. 1284/78 S.R. allowed.
| IN-Abs | The appellants by virtue of two agreements with M/s. Balihari Colliery Co. Pvt. Ltd. and with New Dharamband Colliery Ltd. became the managing contractor for a period of 20 years of the former and the raising contractor of the latter.
In terms of the said agreements, they installed from time to time various fixed assets like machinery, plants and equipment and erected structures and raised new roads within the said collieries.
These two collieries were taken over by the Central Government under its management with effect from October 17, 1971, by virtue of the powers vested in it under the .
The appellants aggrieved by the said taking over filed a writ petition in the Delhi High Court seeking a declaration that subs.
(I) of section 4 of the Nationalisation Act does not provide for the acquisition of the right, title and interest inasmuch as being raising contractors they were not covered by the term 'owner ' within the meaning of section 3(n) of the Nationalisation Act and, therefore, they were entitled to dismantle and remove the fixed assets like machinery, plants etc.
They also sought to recover the amount of subsidy of about Rs. 4,50,000 collected by the Central Government from the erstwhile Coal Board.
The High Court substantially disallowed the claim of the appellants holding that they fall within the meaning of term 'owner '.
It, however, held that the amount of subsidy of Rs. 4,50,000 receivable from the Coal Board by way of reimbursement towards the cost of sand stowing and hard mining operations carried on by them could not be treated to be as an amount due to the coking coal mine within the meaning of sub section
(3) of section 22 and, therefore, could not be utilised by the Central Government under sub section
4 of section 22 for discharge of the liabilities of the coking coal mine.
Hence, the two appeals one by the appellants and the other by the Union of India.
Allowing the Union of India 's appeal only and dismissing the Company 's appeal, the Court 376 ^ HELD: (I) The appellants do fall under the purview of the term "owner" in section 3(n) of the Nationalisation Act read with section 2 of the and any other construction as sought to be placed on the definition would frustrate the very object of the legislation and the intention of the Legislature.[387 F] Parliament, with due deliberation.
in section 3(n) adopted by incorporation the enlarged definition of the "owner" in section 2(1) of the to make the Nationalisation Act all embracing and fully effective.
The definition is wide enough to include three categories of persons (i) in relation to a mine.
the person who is the immediate proprietor or a lessee or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent, such managing agent.
Each is a separate and distinct category of persons and the concept of ownership docs not come in.
The insertion of the clause "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability" is to make both the owner as well as the contractor equally liable for the due observance of the Act Tn the case of a mine the working whereof is being carried on by a raising contractor he is primarily responsible to comply with the provisions of the .
Though a contractor for the working of a mine or any part thereof, is not an owner he shall be subject to the provisions of the in the like manner "as if he were a owner" but not so as to exempt the owner from any liability.
[387 A D] The whole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein.
The term 'owner ' in sub section
(l) of section 4 is to be given an extended meaning so as to include a contractor for the working of a mine or any part thereof.
It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, that is, by employment of raising contractors.
Any other consumption would lead to a manifest absurdity and attribute to Parliament a result which it never intended.
It would result in the contractors escaping from the consequences of vesting under sub section
(I) of section 4 of the Act and permit them to dismantle and remove the additional machinery, plants and equipment which are being utilised for the working of mines.
[388 B D] (2) The word 'occupier ' in 5. 3(n) of the Nationalisation Act should be understood to have been used in the usual sense according to its plain meaning.
In the legal sense an occupier is a person in actual occupation.
The appellants being "raising contractors" were under the terms of the agreement dated February 7, 1969 entitled to and were in fact in actual possession and enjoyment of the colliery and were, therefore, an occupier thereof.
That being so, the appellants in possession in their own right by virtue of their substantial right acquired by them under the agreement were not in possession on behalf of somebody else.
[384F G] The Chief Inspector of Mines and Anr.
vs Lala Katarnchand Thaper etc.
; , distinguished.
(3) The Nationalisation Act, no doubt, separately defines 'owner ' and 'managing contractor '.
The words and expressions used and defined in the Act have the meaning respectively assigned to them "unless the context otherwise requires".
Therefore, the expression 'managing contractor ' as defined in section 3(1) of the Nationalisation Act comes into play only for the purpose of apportionment 377 of compensation under sub section
(2) of section 26.
To exclude a "managing contractor" from term 'owner ' used in sub section
(I) of section 4 of the Nationalisation Act would be against the scheme of the Act.
The term 'owner ' in sub section
(I) of section 4 of the Act must bear the meaning given in the definition contained in section 3(n).
Any reservation under any process of any agreement between the parties to reserve the power to appoint managers, does not take the appellants out of the definition of 'managing contractor ' under section 3(1) of the Nationalisation Act since they still had substantial control over the mine.
The plea that not they but someone else was the managing contractor is only an after thought.
The appellants who have bound themselves by the terms of the agreement, cannot be permitted to escape from the provisions of sub section
(I) of section 4 of the Act, as they come within the purview of the definition of 'owner ' in section 3(n) of the Nationalisation Act.
[384 H, 385 C, 385 H 386 A; 386 E F] (4) When a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created.
After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction.
The legal effect of the words "as if he were" in the definition of owner in section 3(n) of the Nationalisation Act read with section 2(1) of the is that although the petitioners were not the owners, they being the contractors for the working of the mines in question, were to be treated as such though, in fact, they were not so.
[388 E G] East End Dwelling Co. Ltd. vs Finebury Borough Council, L.R. [1952].A.C. 109, p. 132; quoted with approval.
(5) The bills for the subsidy were for the cost of stowing and connected safety operation and all hard mining operations which the appellants had already prior to October 17, 1971 at their own cost, carried out.
If that be so, the amount of subsidy in question was like any other amount due to the coking coal mines prior to the appointed day and, therefore, did not fall outside the purview of sub section
(3) of section 22.
[389 H 390 A] The payment in question was not by way of assistance receivable from the erstwhile Coal Board for carrying out the stowing and other safety operations and conservation of the coal mines.
The payment of Rs. 4,50,000 claimed by the appellants was, therefore, one to reimburse for the expenditure already undertaken.
Indubitably, the amount in dispute was payable 'by way of reimbursement".
The appellants were, therefore, free to utilise their money in any manner they liked.
In other words, the grant was not impressed with any particular purpose or purposes.
[390 B C] (6) Even if the subsidy receivable from the erstwhile Coal Board was by way of 'assistance ' the amount of Rs. 4,50,000 was recoverable by the Central 6 Government in whom the coking coal mines have vested under sub section
(1) of section 4 of the Nationalisation Act and not by tho appellants.
If the grant were by way of assistance under rule 49 of the Coal Mines (Conservation and Safety) Rules 1952, the grant being conditional, the Central Government would in that event, be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted namely, for the purposes of stowing or other safety operations and conservation of coal mines.
[390 D E] H Barclays Bank Ltd. vs Quistclose Investments Ltd., L.R. [1970] A.C. 567, Coal Products Private Ltd. vs Income Tax Officer explained and distinguished.
|
Petition Nos. 841 and 728/1980.
(Under Article 32 of the Constitution.) R. section Sharma and section M. Ashri for the Petitioner in WP Nos. 841 and 728/80.
K. Parasaran, So].
B. P. Maheshwari and Suresh Seth for the RR in WP Nos. 841 and 728.
The Judgment of the Court was delivered by KRISHNA IYER, J.
We have disposed of today applications from cycle rickshaw pliers of Amritsar Municipality where a scheme has been worked out to help them become owners of cycle rickshaws.
A 374 similar scheme, says the Solicitor General appearing for the Delhi Administration, will be extended to the Delhi territory.
We, therefore, annex a copy of the judgment in Writ Petitions Nos.
839 of 1979 and 563 of 1979 Azad Rickshaw Pullers Union, Amritsar and others vs State of Punjab & others and Nanak Chand and others vs State of Punjab and others, respectively to this judgment.
There is another problem which arises in these two cases and that is that the Delhi Administration has put a ceiling on the total number of cycle rickshaws permissible to be plied within its territory perhaps we do not know for certain this number may not accommodate all the applicants for cycle rickshaws applying licencees.
We are told that apart from the applicants in this Court under Article 32 of the Constitution, there are numerous petitioners who have approached the High Court of Delhi under Article 226 of the Constitution and yet others who have filed suits in civil courts for the same relief.
All that we can do is to accept the suggestion made by the learned Solicitor General that the Delhi Administration will effectively publicize and notify applications for licencees for plying of cycle rickshaws and all those who apply will be considered on their merits including length of service as cycle rickshaw pliers.
The criteria that the Delhi Administration will adopt must be reasonable and relevant; otherwise it will be open to the aggrieved parties to challenge the selection.
Likewise we do not want to fetter the rights of parties aggrieved if the ceiling upon the total number of rickshaws permissible within the Delhi territory is arbitrary.
On the basis of reasonable criteria the Delhi Administration will direct the concerned Municipal authorities to grant licences for plying rickshaws and if the applicants so chosen are not owners themselves all the facilities we have indicated in the Amritsar order will be extended to such cycle rickshaw pliers fixing reasonable time limits.
With these directions we dispose of the applications.
Until fresh licences are issued by the Delhi Administration and the Municipal authorities the present petitioners will be allowed to ply their cycle rickshaws.
| IN-Abs | The Delhi Municipal Corporation Which framed the Cycle Rickshaw Bye Law of 1960 under section 481 of the Delhi Municipal Corporation Act, 1957 amended Bye law 3 in 1976 to provide that 'no person shall keep or ply for hire a cycle rickshaw in Delhi unless he himself is the owner thereof and holds a licence granted in that behalf '.
In writ petitions challenging the provision: ^ HELD: In Azad Rickshaw Pullers Union Amritsar & others vs State of Punjab & others, [1981] I SCR 366 a scheme had been worked out to help the rickshaw pliers of Amritsar Municipality to become owners of cycle rickshaws.
[374 A B] 2.
The Delhi Administration will effectively publicize and notify applications for licences for plying of cycle rickshaws and all those who apply will be considered on their merits including length of service as cycle rickshaw pliers.
The criteria that the Delhi Administration will adopt must be reasonable and relevant.
[374 D] 3.
On the basis of reasonable criteria the Delhi Administration will direct the concerned Municipal authorities to grant licences for plying rickshaws and the applicants so chosen are not owners themselves all the facilities indicated in the Amritsar order will be extended to such cycle rickshaw pliers fixing reasonable time limits.
[374F]
|
ition No. 449 of 1980.
(Under Article 32 of the Constitution) Soli J. Sorabjee, M.G. Karmali, Vineet Kumar and Mukul Mudgal for the Petitioner.
J.L. Nain and M.N. Shroff for the Respondent.
The Judgment of the Court Was delivered by, SARKARIA, J.
This is a petition under Article 32 of the Constitution for the issuance of a writ of habeas corpus.
On January, 31, 1980, an order of detention, dated January 30, 1980 under Section 3 (1) of the (for short, called the COFEPOSA), issued by the second respondent, Shri P.M. Shah, Deputy Secretary to the Government of Gujarat, Home Department, was served on Lallu Jogi Patel (hereinafter referred to as the 'detenu ').
The Order was expressed in the name of the Governor of Gujarat.
On the same date (January 31, 1980), the grounds of detention were served on the detenu.
356 The grounds of detention served on the detenu are very elaborate and detailed.
They also contain the introductory background including the history of the detenu.
It is stated herein that the detenu was previously detained by an order, dated September 1974 of the Government of India, under Section 3 of the Maintenance of Internal Security Act (MISA).
On the repeal of MISA and the commencement of COFEPOSA, a fresh order, dated December 19, 1974, under the COFEPOSA, was served on the detenu.
The detenu 's writ petition for a writ of habeas corpus was dismissed by the High Court of Gujarat on May 6, 1976 in view of the Presidential Order, dated June 27, 1975, made under Article 359(1) of the Constitution which had suspended the rights under Articles 14, 21 and 22 of the Constitution.
The detenu was, however, released on March 21, 1977.
As stated in the 'grounds ', his activities were kept under surveillance by the Customs Department.
In or about July 1979, the detenu attempted to smuggle gold, but he was not successful.
Calls booked by the detenu to various telephone numbers of other suspected smugglers were, however, detected.
On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist watches and silver out of the country to Dubai: In pursuance of that conspiracy, on October 9, 1979, the detenu and the said Umar Bakshi smuggled about 45 slabs of silver in the vessel "Saraswati Prasad" registered in the name of Ravia Kalan of Daman.
On November 30, 1979, 23 slabs of silver weighing, in aggregate, 692.527 kgs.
valued at Rs. 15,65,111, were seized by the officers of the Collectorate of Central Excise and Customs from a truck which was intercepted near village Pipodara.
The occupants of the motor truck disclosed their identities as (1) Kailashchandra Shantilal Jain.
(2) Mohmed Hussain Hanif Mohmed Pathan, the driver and (3) Babukhan Istiyarkhan Ahmed Pathan, the cleaner.
all of Udaipur.
The statements of these persons recorded under Section 108 of the Customs Act and the other circumstantial evidence collected, revealed that the detenu was engineering the whole process of attempting to smuggle the silver out of India in conspiracy with Umar Bakshi and others.
In para 35 of the 'grounds ', it is mentioned: "The detaining authority, viz., the State Government considered it against the public interest to disclose the sources of the intelligence referred in paragraphs 3. 4. 6 and 30 and 357 further considered it against public interest to disclose further facts contained in various intelligence reports referred to in the aforesaid paragraphs 3, 4, 6 and 30.
" On February 15, 1980, the detenu sent a letter.
through the Superintendent Jail, requesting for the supply of copies of statements and documents relied upon in the grounds of detention.
According to the counter filed by Shri Shah, Deputy Secretary to Government of Gujarat, this letter was received by the State Government on February 18, 1980.
The State Government then on February 22, addressed a letter to the Sponsoring Authority (Collector of Customs.
Ahmedabad, enquiring whether furnishing copies of documents would not prejudice public interest.
On February 25, 1980, the Collector wrote back to the State Government that it was not necessary to supply the copies of the statements and documents asked for by the detenu, "as the grounds of detention served on him were quite elaborate to enable the detenu to make effective representation".
The Collector sent copies of the required statements to the State Government and the latter received the same on February 29, 1980.
On March 4, 1980, the second respondent (Deputy Secretary, Home Department) arranged personal discussion with the Collector to solicit his considered view.
As a result, on March 5, 1980, the Collector sent a letter to the State Government, stating that he had no objection to furnish the detenu with relevant documents.
As per letter, dated March 7, 1980, the Section Officer of the Home Department sent the relevant documents running into 461 pages, to the detenu through the Superintendent, District Prison, Rajkot, by registered acknowledgement due.
The said documents were received by the detenu on March 11, 1980 at Rajkot.
Thus, after excluding the time taken in transit, there was a delay of 17 days in furnishing copies to the detenu.
Earlier, on February 1, 1980, Shri P.K. Nair, Advocate had addressed a letter to the Chief Minister of Gujarat asking for permission for an interview with the detenu to seek instructions from him for drafting his representation.
On February 12, 1980, the Secretary to Chief Minister wrote in reply to the Advocate, that his request for having an interview with the detenu was being looked into by Government with the Home Department.
This letter of the Advocate, according to the counter affidavit filed by Shri Shah, was received by him on February 30, 1980 through the Chief Minister 's 358 Secretariat.
On February 20, 1980, the State Government informed the Advocate that his request for interview with the detenu had been granted.
Mr. Soli Sorabji, appearing for the petitioner, challenges the validity of the detention of these grounds: (1) There has been impermissible delay in furnishing copies of the documents and statements relied upon in the grounds of detention.
(2) There was unreasonable delay of about 20 days in granting interview to the detenu with his lawyer, as a result of which the statutory right of the detenu under rule 14 (xii) of the Gujarat Condition of Detention (COFEPOSA) Order 1975 has been rendered meaningless.
The combined effect of these undue delays (Nos. 1 and 2) is that the detenu has been denied his constitutional right to be afforded the earliest opportunity of making an effective representation against his detention, and thus there has been a violation of Articles 21 and 22 (5) of the Constitution.
In support of Nos.
(1) and (2), the learned counsel has referred to Khudi Ram Das; Jayanarayan Sukul vs State of West Bengal; Madhav Hayawadanrao Hoskot vs State of Maharashtra and Ramchandra A. Kamat vs Union of India & Ors.
(3) The counter affidavit filed in response to the rule nisi issued by this Court, has not been affirmed by the detaining authority, but by another officer, on the basis of information derived from the record, only.
(4) Irrelevant matter has been taken into consideration.
In reply to these contentions, Mr. Nain, appearing for the respondent State has urged these points: (a) (i) The 'grounds of detention ' which were served on the detenu simultaneously with the order of detention, were elaborate and full and had apprised the detenu of all the information necessary for making an effective representation against his detention. "Grounds of detention", as held by this Court in State of Bombay vs Atma Ram Sridhar Vaidya, in Article 22 (5) means only 'conclusions of facts ' and not all the evidence or factual details considered by the 359 detaining authority in passing the impugned order.
What Article 22 (5) obligates is that the 'grounds of detention ' should be communicated to the detenu at the earliest.
This constitutional obligation was fully discharged when the elaborate grounds of detention containing the substance of all the material facts, were served on the detenu.
(ii) In these circumstances, the detenu had no further constitutional right to be supplied with the details and sources of the information on which the order of detention was passed.
Reference has also been made to Vakil Singh vs State of Jammu & Kashmir.
(b) The detenu as is apparent from the grounds of detention is engaged in smuggling activity in a big way, having international ramifications.
Investigations were going on to unravel the entire gang of international smugglers in league with the detenu.
The detaining authority had, therefore, to consider as to whether the disclosure of this information asked for by the detenu, at that stage, would not be detrimental to public interest, and if so, whether it would be in the public interest to invoke Article 22 (6) of the Constitution to withhold the copies asked for by the detenu, for some time.
For this important purpose consultation with the Collector who was supervising the investigations, was necessary.
The documents of which the copies were asked for, also run into several hundred pages.
If these inter departmental consultations, preparation and despatch of the copies took 17 days, in a case where the detenu has been indulging in smuggling activity of this magnitude, the delay in supplying the copies was neither inordinate, nor unreasonable.
Reference has been made to the counter affidavit filed on behalf of respondents 1 and 2.
(c) The period of delay in allowing the detenu to interview his lawyer, was of no consequence.
First, Article 22 in terms, denies to the detenu the right to consult a lawyer or to be defended by a counsel of his choice.
This concession, has, however, been conceded by the State Government under rule 14 (xii), and there also, it is not an indefeasible right as it is contingent upon the grant of permission by the State Government.
There is a distinction between a constitutional right and a defeasible statutory right.
Delay in grant of the interview with the lawyer in no way affects the constitutional right of the detenu to make a representation.
Secondly, no written request for supply of copies of the documents, prior to February 18, 1980 had been received from the detenu and the lawyer 's request for interview with the detenu was granted on 360 February 20, 1980.
The time taken for considering the lawyer 's request for interview cannot be combined with or added to the period taken for supply of the copies.
(d) Lastly, the delay in supply of copies or in granting the interview with the lawyer did not in any way prejudice the detenu.
The copies were demanded and the interview with the lawyer were sought, professing that these were required for the purpose of making an effective representation.
But this professed purpose was merely a pretence because the copies were neither necessary, nor intended to be used for any such purpose.
Despite the grant of these twin requests and the despatch of the copies on March 7 and their receipt on March 17, the detenu never filed any representation, although the Advisory Board was to meet shortly thereafter on March 24, 1980.
Instead, he rushed to this Court and filed the writ petition on March 17, 1980.
This conduct of the detenu is not making any representation, despite opportunity, shows that no prejudice has been caused to him merely by the fact that the copies were despatched to him after 17 days of receiving his request.
(e) Under the statute even "grounds" of detention can be communicated to the detenu, in exceptional cases within 15 days of the detention.
If the "grounds" communicated within the prescribed period are elaborate then supply of further particular is only two days after the expiry of the fifteen days period prescribed for communicating the "grounds" in exceptional cases.
cannot be said to be unreasonably belated.
Contentions 3 and 4 canvassed by Shri Sorabji need not detain us.
Shri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister.
It was authenticated and issued under the Rules of Business by Shri P.M. Shah, Deputy Secretary.
Home Department (Special) who has sworn the counter affidavit in this case.
No personal mala fides are alleged against the Minister.
It was, therefore.
not necessary for the Minister to file the counter himself.
Contention 3 is, therefore, overruled.
What the learned counsel characterises as "irrelevant" matter incorporated in the grounds of detention are really introductory facts or history of the case.
We, therefore, negative contention 4, also.
Indeed, the main arguments of the learned counsel are Nos.
(1) and (2) that there has been unreasonable delay in supplying the 361 copies of the material documents and statements relied upon or referred to in the grounds of detention.
To appreciate these contentions, it is necessary to have a clear idea of the import and scope of the expression 'grounds ' used in the context of 'detention ' in Article 22 (5) of the Constitution and in sub section (3) of Section 3 of COFEPOSA.
A democratic constitution is not to be interpreted merely from a lexicographer 's angle but with the realisation that it is an embodiment of the living thoughts and aspirations of a free people.
"A constitution" said Benjamin Cardozo, "states or ought to state not rules for the passing hour, but principles for an expanding future".
The concept of "grounds", therefore, has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of liberty and fundamental freedom guaranteed in Articles 19 (1), 21 and 22 of the Constitution.
It is not necessary to notice all the numerous cases in which this expression in the context of Article 22 (5) has come up for consideration.
It will suffice to make a brief reference to a few of them which are in point.
In Golam vs The State of West Bengal, this Court held that in the context of Article 22 (5) 'grounds ' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact.
It means something more.
That 'something ' is the factual constituent of the 'grounds ' on which the subjective satisfaction of the authority is based.
This decision was approved by a larger Bench in Khudaram Das vs West Bengal, ibid, wherein Bhagwati, J. speaking for the Court, said: "The constitutional imperatives enacted in Article 22 (5) are two fold: (i) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; and (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order.
These are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person".
It was explained that 'grounds ' under Article 22 (S) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention, must be communicated to the detenu.
It was further clarified that such "basic facts and materials" would be different from "other particulars" spoken of in sub section (3) of Section 3 of M.I.S.A. 362 Earlier, in Prabhu Dayal Deorah etc.
vs District Magistrate, Kamrup & Ors., Mathew, J., speaking for the majority, elucidated the position, thus: "The detenu has a right under Article 22 (5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention.
That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of detention order.
" From these decisions it is clear that while the expression "grounds" in Article 22 (IS), and for that matter, in Section 3 (3) of the COFEPOSA, includes not only conclusions of fact but also all tho 'basic facts ' on which those conclusions are founded, they are different from subsidiary facts or further particulars of the basic facts.
The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important.
While the "basic facts" being integral part of the "grounds" must, according to Section 3 (3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22 (S) in Khudi Ram 's case, are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition.
It follows, that if in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenu within the period specified in Section 3 (3), the omission will be fatal to the validity of the detention.
however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars, also must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time.
What is ' 'reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case.
In the circumstances of a given case, if the time taken for supply of suck additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds 363 it may still be regarded "reasonable".
while in the Pacts of another A case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case (Supra).
In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein.
There was thus no breach of the first constitutional imperative embodied in Article 22 (5).
The short question, therefore, for consideration is: Was the period of 17 days (exclusive of the time taken for communication in transit) for the supply of the further, particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay".
Firstly, this is a case in which the detenu was, according to the allegations in the grounds of detention and the averments in the counter affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way.
This silver which was the subject of this illegal activity, was of huge value.
The smuggling activity attributed to the detenu had international ramifications.
The Collector of Customs was supervising the investigations that were going on at several places, in several countries, to unearth and detect all the persons who were involved in this large scale organised smuggling of international dimensions.
It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on.
Such a query from or consultations with the Collector was necessary, to enable the detaining authority to make up its mind as to whether or not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu or any part thereof under Article 22 (6).
Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants.
The Government, therefore, summoned the Collector and discussed the matter at a high level meeting and then directed the Collector to supply the copies.
Secondly, the documents or statements of which copies were sought covered more than 461 pages.
Preparation of such a bulky record could be time consuming, if the aid of some appliance like the ZEROX machine were not available to prepare the copies by mechanical process.
364 The third reason for delay which is in the nature of and explanation given by the respondent is that it has not caused any prejudice to the right of the detenu 'to make an effective representation, since the grounds of detention communicated to him were elaborate and full.
Indeed, in the counter affidavit an alter native stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate.
Shri Nain has also tried to support this reasoning.
In view of the law enunciated in Khudi Ram 's case, ibid, this stand taken by the respondent is utterly unsustainable.
Be that as it may, in the totality of the circumstances of this present case we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation.
In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicated to the detenu were very elaborate and full is not altogether irrelevant.
The copies were despatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot.
The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980.
The detenu was also allowed by an order, dated February 20, 1980, to be interviewed by his lawyer.
Although the Government took more than two weeks to consider the lawyer 's request to interview the detenu, the fact remains that this permission was granted only two days after the despatch of the detenu 's application for obtaining copies of the additional documents or materials.
In spite of the grant of the detenu 's lawyer 's request for interview with his client and the supply of the copies, the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board.
This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenu 's right to make a speedy and effective representation.
According to the petitioner his lawyer by a letter, dated February 1, 1980, sought an interview to enable him to draft his representation.
But no application for obtaining copies of the material documents had been made by the detenu till February 15118, 1980, when it was put in a course of communication to the 365 Government, while permission for interview with the lawyer was granted on the 20th February.
In short, on a consideration of all the circumstance of this particulars case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22 (5) of the Constitution.
These, then, are the reasons in support of our order, dated May 9, 1980 by which we dismissed the writ petition.
S.R. Petition dismissed.
| IN-Abs | Lallu Jogi Patel was detained on January 31, 1980 by an order of detention dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat State under Section 3(1) of the and issued by the second respondent a Deputy Secretary of Government of Gujarat, Home Department.
The order was expressed in the name of the Governor of Gujarat.
On the same date, the grounds of detention were served on the detenu.
The detenu prayed for copies of the statements and documents relied upon in the grounds of detention on February 15, 1980.
On February 1, 1980 the detenu 's Advocate sought permission for an interview with the detenu to seek instructions from him for drafting his representation.
On February 20, 1980 the State Government informed the Advocate that his request for interview with the detenu had been granted.
After consulting the Collector of Customs, the Home Department also, supplied to the detenu the documents running into 461 pages on March 7, 1980 which were actually received by the detenu on March 11, 1980.
that is after a delay of 17 days, excluding the time taken in transit etc.
Dismissing the petition, the Court ^ HELD: (1) In view of the fact that the original detention order was, in fact, passed by the Home Minister against whom no personal mala fides are alleged and the said order was authenticated and issued under the Rules of Business by the Deputy Secretary, Home Department (Special), the latter 's swearing the counter affidavit in the case is valid.
[360 F G] (2) The introductory facts or history of the case incorporated in the grounds of detention cannot be considered as irrelevant matters which went into the consideration of the detention order.
[360G H] (3) A democratic Constitution is not to be interpreted merely from a lexicographer 's angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people.
The concept of "grounds" used in the context of detention in Article 22(5) of the Constitution and in sub 354 section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions of liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of the Constitution.
[361 A C] (4) In Khudiram Das vs West Bengal the Supreme Court held that the constitutional imperatives enacted in Article 22(5) are two fold: (i) The detaining authority must, as soon as may be, that is, as soon as practicable after.
the detention, communicate to the detenu the grounds on which the order has been made; (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order and that these two are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person; the grounds under Article 22(5) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue.
[361 D G] (5) While the expression "grounds" in Article 22(5), and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the "basic facts" on which those conclusions are founded, they are different from subsidiary facts or further particulars or the basic facts.
The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important.
While the "basic facts" being integral part of the "grounds" must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22(5) in Khudi Ram 's case, are required to be communicated to the detenu.
as soon as may be practicable, with reasonable expedition.
It follows, that it in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenue within the period specified in Section 3(3), the omission will be fatal to the validity of the detention.
If, however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time.
What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case.
In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the tacts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case.
[362 C H, 363 A] In the instant case there is no breach of the first constitutional imperative embodied in Article 22(5).
The grounds supplied to the detenu were elaborate and full and contained all the "basic facts" although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein.
[363 A B] 355 (6) In the totality of the circumstances of the present case, the period of 17 days taken in considering the supply of the copies was not an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation and, therefore, infraction of the constitutional imperatives in Article 22(5) of the Constitution.
Firstly, the detenu was indulging in smuggling out silver from India and exporting it to the Gulf countries in a big way and the smuggling activity attributed to the detenu had international ramifications resulting in consultation with several authorities supervising the Customs.
The Government had to consult the Collector of Customs and even summon and discuss in a high level meeting before ordering the supply of the copies.
Secondly, the documents and statements of which the copies were sought covered more than 461 pages.
Preparation of such a bulky record could be time consuming if the aid of some appliance like the Zerox machine were not available to prepare the copies by mechanical process.
Thirdly, in spite of the grant of the request of the detenu 's lawyer to interview the former and the supply of the copies the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board which is a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has, in fact, prejudiced the detenu 's right to make a speedy and effective representation.
[363 C E, H, 364 A D G] Khudi Ram vs State of West Bengal, ; , Golam vs The State of West Bengal, W.P. 270 of 1974 dated 12 9 74; Prabhu Dayal Deorah etc.
vs District Magistrate.
Kamrup & Ors., ; referred to.
|
ition Nos. 839 and 563 / 79.
(Under Article 32 of the Constitution) V. M. Tarkunde and E. C. Agarwala for the Petitioner in W. P. No. 839/79.
R. section Sharma and section M. Ashri for the Petitioner in W.P. No. 563/ 79.
O. P. Sharma and R. C. Bhatia for the RR.
No. 1 in WP Nos. 839 and 563.
Naunit Lal for RR 2 in WP Nos. 839 and 563.
The following Judgments were delivered: KRISHNA IYER, J.
The challenge in these writ petitions compel s to remind ourselves that under our constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental right.
No higher duty or more solemn responsibility rests upon this court than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution.
We might have been called upon to examine from this angle of constitutionalised humanism, the vires of the Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975) (the Act for short), designed to deliver the tragic tribe of rickshaw pullers, whose lot is sweat, toil, blood and tears, from the exploitative clutches of cycle rickshaw owners by a statutory ban on non owner rickshaw drivers.
But negative bans, without supportive schemes, can be a remedy aggravating the malady.
For, the hungry human animal, euphemistically called rickshaw puller, loses, in the name of mercy, even the opportunity to slave and live.
So, the success of such well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and 368 self ownership substituted.
Judicial engineering towards this goal is better social justice than dehumanised adjudication on the vires of legislation.
Court and counsel agreed on this constructive approach and strove through several adjournments, to mould a scheme of acquisition of cycle rickshaws by licensed rickshaw pullers without financial hurdles, suretyship problems and, more than all, that heartless enemy, at the implementation level of all progressive projects best left unmentioned.
Several adjournments, several formulae and several modi fictions resulted in reaching a hopefully workable proposal.
In fairness to the State, we must mention that when the impugned legislation was enacted Government had such a supportive financial arrangement and many rickshaw pullers had been baled out of their economic bondage.
Some hitch somewhere prevented several desperate rickshaw drivers getting the benefit, which drove them to this Court.
Anyway, all is well that ends well and judicial activism gets its highest bonus when its order wipes some tears from some eyes.
Here, the bench and the bar have that reward.
These prefatory observations explain why a pronouncement of the validity of the Act is not called for, although prima facie, we see no constitutional sin in the statute as now framed.
We now proceed to set out in our judgment the terms and conditions which will carry with them the implications and obligations of undertakings to the court so far as the parties to the case are concerned.
Counsel for the Slate assures us that the Credit Guarantee Corporation of India (Small Loans) will also abide by the court 's direction although not a party formally.
So also, the Punjab National Bank which is the financing agency parties have agreed upon.
There is no dispute.
that the purpose of the statute is obviously benign as is manifest from the Statement of objects and Reason which runs thus: In order to eliminate the exploitation of rickshaw pullers by the middlemen and for giving a fillip to the scheme of the State Government for arranging interest free loans for the actual pullers to enable them to purchase their own rickshaws, it is considered necessary to regulate the issue of licences in favour of the actual drivers of cycle rickshaws, plying within the municipal areas of the State.
Section 3 which clamps down the impugned ban read thus: 3(1) Notwithstanding anything contained to the contrary in the Punjab Municipal Act, 1911, or any rule or order or bye law made thereunder or any other law for the time being in force, no 369 Owner of a cycle rickshaw shall be granted any licence in respect of his cycle rickshaw nor his licence shall be renewed by any municipal authority after the commencement of this Act unless the cycle rickshaw is to be plied by such owner himself; (2) Every licence in respect of a cycle rickshaw granted or renewed prior to the commencement of this Act shall stand revoked, on the expiry of a period of thirty days after such commencement if it does not conform to the provisions of this Act.
The State was alive to the need for positive rescue measures beyond blanket ban on licensing and so decided to provide interest free loans to actual rickshaw pliers so that they could acquire their own rickshaws and free themselves from the coils of middlemen who preyed upon the little earnings from the toils of the pullers.
Luckily, the nationalised banks collaborated in this socially oriented Scheme called the Credit Guarantee Corporation of India (Small Loans) Guarantee Scheme, 1971.
And the Credit Corporation agreed to stand surety for the amounts to be advanced by banks to rickshaw pliers.
Certainly, the Union of Rickshaw Pliers the petitioner readily accepted the conditions designed for their deliverance since they had nothing to lose except their chains.
Thus, we have all the factors ready to cooperate in effectuating the purpose of saving the rickshaw pullers and making them owners.
All that we have to do is to set out a self working, specific scheme which makes the statutory ban not a negative, self defeating interdict, but a positive economic manumission.
All the counsel have played a role in the dynamic process which has resulted in the judicial project we are giving effect to.
Every rickshaw plier, including every petitioner, who has been a licensee in the Amritsar or other municipality within one year of the coming into force of the Act will be entitled to apply to the Municipal Commissioner within one month from today for a certificate or other document to the effect that he has been a licensee for rickshaw pulling within the aforesaid period.
The Municipal Commissioner will verify the records on receipt of such application and will grant the necessary certificate or other document within one month from the date of application.
He shall not delay the issuance of the certificate.
He shall not be over strict, but shall be liberal in the exercise of the certificate issuing power.
(Punctiliousness, especially with the weaker sections, is the path to harassment, corruption, dilatoriness and exasperation.
Welfare measures often breed de moralisation through heartless legalism and this very case is, to some extent, an illustration).
On receipt of the municipal certificate, the rickshaw puller concerned 370 will apply to the Credit Guarantee Corporation of India (Small Loans), under the Guarantee Scheme of 1971, praying to the said Corporation that it stand guarantee to the Punjab National Bank (or other schedule bank mutually agreed upon) for advance of a loan upto Rs. 900 (and in special cases for a larger sum if satisfied that the price of a cycle rickshaw is more than Rs. 900).
The Punjab National Bank (or other scheduled bank mutually chosen) will receive a sum of Rs. SO by way of deposit towards the loan to be advanced to the applicant.
The rickshaw pliers shall make this initial deposit to be eligible for the bank loan.
The balance of the loan shall be guaranteed by the Credit Guarantee Corporation of India (Small Loans) whereupon the concerned bank will advance the sum needed for the purchase of a cycle rickshaw to the manufacturer or vendor indicated by the applicant.
Thereupon, the applicant (rickshaw puller) will take delivery of the cycle rickshaw and produce the voucher evidencing purchase and delivery of the rickshaw and, if needed, produce the rickshaw for physical verification by the bank 's officials within one week of taking such delivery.
and thereafter whenever directed.
He will also sign the necessary forms and undertakings required by the bank so as to hypothecate the cycle rickshaw in favour of the bank.
So far as the payment of interest to the bank is concerned, both sides agree that it will be governed by the Scheme for advance to the cycle rickshaw pullers framed by the State Government.
The bank shall advance 95% by way of loan towards the purchase of the cycle rickshaw.
The sum of Rs. 50 to be deposited initially by the rickshaw puller is expected to cover the remaining 5 % .
The loan amount shall be repaid by the rickshaw puller concerned in 15 monthly instalments or in weekly or daily instalments so that by the end of each month 1/15th of the amount is cleared).
If there are delayed payments of instalments of loans, higher rates of interest will be recoverable from the loanee (the rickshaw pliers) as per the 1971 scheme.
The amount of interest, in case instalments are paid duly, will be met by the Government as an act of relief for the rickshaw pliers.
The rickshaw pliers shall, or purchase, hypothecate the vehicles to the bank which advances the loan and this will be an undertaking to the court.
The petitioner union will be permitted by the Municipality to set up and run a workshop for repair and allied types of work and a service station for the cycle rickshaws.
Sufficient space will be allowed in suitable places for rickshaw stands and safe keeping of rickshaw within the limitations of availability and subject to moderate charges.
A realistic understanding of the life style of rickshaw pliers in Amritsar indicates that during the agricultural season many of them 371 go to work nominating other rickshaw pliers without employment to A ply the rickshaws during that season.
The Municipal Commissioner.
if satisfied that the nomination made is bona fide, will issue licences to such surrogates or nominees of the licensed rickshaw pliers for the agricultural season.
The bank which advances the loan and the Credit Guarantee Corporation which guarantees the repayment will.
at all reasonable times, be entitled to have physical verification of the vehicles.
without interference with the occupation of the rickshaw pliers.
If group insurance of rickshaws and of the life of the rickshaw pliers is feasible, the Municipal Commissioner will work out a scheme in this behalf in consultation with the unions in the field.
Likewise.
any project whereby cycle rickshaws can be replaced by scooters by stages, will also be considered so that the rickshaw pullers of today may become scooter drivers of tomorrow owning the vehicles themselves.
It is a notorious fact that rickshaw pullers have an occupational hazard and suffer from pulmonary tuberculosis and so, the State must be deeply concerned progressively to replace rickshaw pulling with mechanical propulsion.
It would appear that short of scooters there are mechanised cycle rickshaws which are fairly inexpensive and which are being experimented with.
Such vehicles may be a boot to the miserable who now torture themselves to keep body and soul together.
After all, the quality of life of the weakest in society is the true measure of social justice.
The conditions and directions we have incorporated in this judgment shall be implemented in its true spirit and import by the State, the Municipal Corporation, the Credit Guarantee Corporation, the nationalised banks and the Union and its members.
We are happy to record our appreciation of the role of counsel and of the parties in bringing about this solution.
The State by exercising its legislative power alone, could not produce justice until this formula was hammered out.
The Court with its process of justice alone could not produce a viable project.
But now, justice and power have come together and, hopefully.
we have fulfilled the words of Blaise Pascal, "Justice without power is inefficient; power without justice is tyranny.
Justice and power must, therefore, be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.
" 372 Until fresh licences are granted to the cycle rickshaw pliers under the scheme we have incorporated in the order the present petitioners will be allowed to ply their cycle rickshaws.
The writ petitions are disposed of on the above lines.
PATHAK, J. I agree with the entire scheme of directions framed by my learned brother for the purpose of enabling the rickshaw pliers to acquire and own cycle rickshaws including the financial arrangements envisaged in the scheme, and also the making of provision for the repairs and maintenance of the cycle rickshaws.
I need add nothing more.
| IN-Abs | The Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975), was designed to regulate the issue of licenses to actual drivers of cycle rickshaws, plying within the municipal areas of the State.
The petitioners in their Writ Petitions challenged the Act. ^ HELD: (Per Krishna Iyer & Chinnappa Reddy, JJ.
Pathak J. agreeing with the scheme of directions framed).
The Court framed the following scheme: (a) Every rickshaw puller including every petitioner, who has been a licensee within one year of the coming into force of the Act shall be entitled to apply to the Municipal Commissioner for a certificate or other document to the effect that he has been a licensee for rickshaw pulling.
[369 F] (b) The Municipal Commissioner will verify the records and will grant the necessary certificate or other document within one month from the date of the application.
[369 G] (c) on receipt of the municipal certificate the rickshaw puller will apply to the Credit Guarantee Corporation of India (Small Loans) under the Guarantee Scheme of 1971 for advance of a loan upto Rs. 900.
[369 H 370 A] (d) The loan amount shall be repaid by the rickshaw puller in 15 monthly instalments.
If there are delayed payments of instalments of loan, higher rate of interest will be recoverable.
[370 F] (e) When the rickshaw pullers during the agricultural season go to work in their fields, they shall nominate other rickshaw pullers without employment to ply the rickshaws during that season.
The Municipal Commissioner, if satisfied that the nomination made is bona fide will issue licence to such pullers or nominees of the licensed rickshaw pullers, in the agricultural season.
[370 H 371 A] B. (I) Under the Constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental rights.
[367 E] 367 (2) No higher duty or more solemn responsibility rests upon this Court A than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution.
[F] (3) The success of well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and self ownership substituted.
Judicial engineering to wards this goal is better social justice than dehumanised adjudication on the vires of legislation.
[H 368 A]
|
Civil Appeal No. 1743 of 1980.
Appeal by Special Leave from the Judgment and Order dated 24 4 1979 of the Madras High Court in W.P. No. 886/77.
K. Parasarans, Solicitor General and A.V. Rangam for the Appellant.
V. Srinivasan, Chandrasekaran and A.T.M. Sampath for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
Special leave to appeal granted.
The respondent herein, M. N. Sundarajan was recruited as a Clerk in the Indian Army in the year 1943.
Sometime after the regiment was demobilised, he was appointed in the Revenue Secretariat of the State Government from March, 1948 in a vacancy reserved for war service candidates.
He was promoted as Section Officer in April, 1969 and he continued in the post till March 2, 1976, when he was compulsorily retired from service by the appellant State in exercise of its power under Fundamental Rule 56(d).
473 The respondent challenged the validity of the order of his compulsory retirement by a writ petition under Article 226 of the Constitution in the High Court of Madras.
One of the grounds of challenge was that as per procedure set out in G.O. No. 761.
dated March 19, 1973, the Review Committee has to consider the cases of Gazetted Government Officers in the Secretariat headed by the Chief Secretary and not by the Departmental Secretary, and that, therefore, the order passed by the appellant State based on the review made by a Committee which had no jurisdiction, cannot be sustained in law.
Following a previous decision in W.P. 1547 of 1977 (The Jawahar Mills ' case), the High Court held that since the Committee which reviewed the respondent 's case was not a Committee duly constituted under G.O. No. 761, dated March 19, 1973, and had not been presided over by the Chief Secretary, there was a violation of the procedure laid down by the Government in G.O. No. 761, dated March 19, 1973, and, this violation had vitiated the impugned order passed by the Government.
In the result, the writ petition was allowed and the impugned order was quashed.
Hence, this appeal by special leave.
The main contention of the learned Solicitor General who has appeared on behalf of the appellant State, is that the High Court has not correctly appreciated the import of the relevant Government orders.
It is submitted that under Government order No. 1782.
Public (Services J), dated June 27, 1973, all Superintendents or Section officers were given the status of Gazetted officers with effect from June 13, 1973, "but, in all matters relating to appointments, transfers, postings, punishments and drawl of pay," they continued to be treated as non Gazetted Government servants "until further orders.
" That was why the case of the respondent pursuant to the aforesaid Government order of June 27, 1973, for compulsory retirement under Fundamental Rule 56(d), was considered by the appropriate Committee constituted for non Gazetted Government servants in the Secretariat.
In the aforesaid Government order, dated June 27, 1973, the word 'appointments ', according to the learned Solicitor General includes compulsory 'retirements ', also.
In support of his contention, he has referred to the decisions of this Court in Manager Govt.
Branch Press & Anr.
vs D. B. Belliappa, and State of Uttar Pradesh vs Chandra Mohan Nigam & Ors.
On the other hand.
Shri Srinivasan, appearing for the respondent, submits that the word 'appointments ' in the G.O. No. 1782, dated June 474 27, 1973, cannot be construed to include 'retirements ' from or 'terminations ' of service.
If that had been the intention, it is argued, there was no difficulty in adding the word 'retirements ' or 'terminations ' along with the words "appointments, transfers, postings and punishments" in that Government Order.
It is urged that a restricted interpretation should be placed on this expression Thus, the short question that falls to be considered is: Was the High Court right in quashing the order of the respondent 's compulsory retirement, who was a Gazetted Officer at the material time, merely on the ground that it was considered by a Review Committee other than the one constituted for Gazetted Officers ? For the sake of perspective, it is necessary to recall that before June 27, 1973, a Section Officer in the Tamil Nadu Secretariat used to be a non Gazetted officer.
In 1972 and earlier, several representations were made by the Tamil Nadu Secretariat Associations and others that the Superintendents of the Secretariat should be accorded Gazetted status.
Ultimately, the Government by order, G.O. Ms. No. 1616, Public (Services J), dated June 13, 1973, made the post of a Superintendent of the Secretariat a Gazetted post with effect from the date of that order.
Such Superintendents were re designated as Section Officers.
In the aforesaid G.O., it was stated that the amendment to the said Rule should be issued shortly.
Since the framing of the Rules involved lot of administrative complications and unavoidable delay, the Government took a policy decision that in regard to various procedures concerning such newly designated Section Officers, the Rules under which they were functioning earlier, namely, Rules applicable to non Gazetted Government servants should continue to apply till such time as Service Rules are made with a view to avoid administrative dislocation.
This decision was the subject of Government order No. 1782, Public (Services J), dated June 27, 1973.
The net effect of this order was that although the Superintendents were given a Gazetted status and their designations were changed into Section Officers with effect from June 13, 1973: but in all matters relating lo appointments, transfers.
postings, punishments and drawl of pay, they continued to be treated as non Gazetted Government servant until further orders.
The question is, whether the expression "appointments" used in this Government order, dated June 13, 1973, will include 'termination ' of service or 'compulsory retirement ' from service, also.
It is a fundamental principle of interpretation that unless a contrary intention appears from the context, a power to appoint should include a power to terminate the appointment, including termination of the person 475 appointed by his compulsorily retirement in accordance with the terms and conditions of his service.
This fundamental principle underlies Section 16 of the General Clauses Act.
In other words, the power to terminate the appointment by compulsory retirement or otherwise is a necessary adjunct of the power of appointment and is exercised as an incident to or consequences of the power.
There is nothing in the Government order No. 1782, dated June 27, 1973, which militates against this rule of construction.
The above being the true construction of the word 'appointments ' in the aforesaid Government order of June 27, 1973, notwithstanding the conferment of Gazetted status, the respondent continued to be governed, inter alia, in the matter of 'appointment ', which would include compulsory retirement or termination of service also, by the Rules and Government orders applicable to non Gazetted Officers of the Secretariat, and therefore, the Review Committee presided over by a Departmental Secretary, set up for reviewing the cases of non Gazetted officers of the Secretariat, was fully competent to consider the case of the respondent and recommend his retirement.
Assuming that there was some irregularity in the constitution of the Review Committee, which dealt with the case of the respondent, that could not affect the validity of the impunged orders.
The "decisions" of the Review Committee had no force proprio vigore.
At best, the 'decisions ' were mere recommendations which did not, and could not, have a peremptory effect.
The ultimate power to accept or not to accept the recommendations of the Review Committee and to take an effective and definitive decision in the matter, vested in the Government.
Thus, even if there was some irregularity in the constitution of the Review Committee.
the functions of which were purely advisory, that could not by itself have the effect of vitiating the order of the respondent 's compulsory retirement, passed by the Government in the exercise of the power vested in it.
Furthermore, it was not the respondent alone (from the category of Section Officers) whose case was reviewed by the Review Committee in question.
The cases of all the Section Officers of the Secretariat, were reviewed by the same Committee.
It could not, therefore, be contended that the respondent had been singled out for a differential treatment.
Article 14 of the Constitution was not attracted and the respondent could not have any grievance on that score.
For the foregoing reasons, we allow this appeal, set aside the order of the High Court, and uphold the order of the respondent 's compulsory retirement.
The parties shall pay and bear their own costs.
N.V.K. Appeal allowed.
| IN-Abs | Before June 27, 1973, a Section Officer in the Tamil Nadu Secretariat used to be a non Gazetted officer.
The Government by order G.O. Ms. No. 1616, Public (Services J) dated June 13, 1973 made the post of a Superintendent of the Secretariat a Gazetted post and re designated it as Section Officer, and by Government order No. 1782, Public (Services J.), dated June 27, 1973, provided that in all matters relating to appointments, transfers, postings punishments and drawl of pay, they continued to be treated as non gazetted Government servants until further orders The respondent was recruited as a Clerk in the Indian Army in the year 1943 and after demobilization was appointed in the Revenue Secretariat of the State Government (Appellant) from March 1948.
He was promoted as Section Officer in April 1969 and he continued in the post till March 2, 1976 when he was compulsorily retired from service under Fundamental Rule 56(d).
The respondent challenged his compulsory retirement in the High Court contending that the procedure set out in G.O. No. 761 dated March 19, 1973, envisaged that the Review Committee that had to consider the cases of Gazetted Government officers in the Secretariat should be headed by the Chief Secretary and not by the Departmental Secretary and since the Committee which reviewed his case was headed by a Departmental Secretary, the violation had vitiated the retirement order.
The High Court accepted this contention and quashed the retirement order In the appeal to this Court it was contended on behalf of the appellant that though under G. O. No. 1782 Public (Service J) dated June 27, 1973, all Superintendents or Section officers were given the status of Gazetted Officers in matters like appointments, transfer and posting they continued to be treated as non gazetted officers and that the constitution of the Review Committee headed by a Departmental Secretary was valid.
It was also contended that in the aforesaid order, the word 'appointments ' includes compulsory 'retirements ', also.
On the respondent 's behalf it was submitted that the word 'appointments ' in the order dated June 27, 1973 cannot be construed to include 'retirements ' from or 'terminations ' of service, for if that had been the intention there would not have been no difficulty in adding the word 'retirements ' or terminations ' along 472 with the words 'appointments, transfers, postings and punishments ' in the Government order and consequently a restricted interpretation should be placed on this expression.
Allowing the appeal, ^ HELD: 1.
The order of the High Court is set aside and the order or the respondent 's compulsory retirement upheld.
[475 H] 2.
Unless a contrary intention appears from the context, a power to appoint should include a power to terminate the appointment including termination by compulsory retirement in accordance with the terms and conditions of service.
This fundamental principle underlies Section 16 of the General Clauses Act.
[474 H 475 A] 3.
The power to terminate the appointment by compulsory retirement or otherwise is a necessary adjunct of the power of appointment and is exercised as an incident to or consequences of that power.
Nothing in the Government Order No. 1782, dated June 27, 1973, militates against this rule of construction.
[475 B] 4.
The "decision ' of the Review Committee had no force proprio vigore.
The 'decisions ' were mere recommendations which did not, and could not, have a peremptory effect.
The ultimate power to accept or not to accept the recommendations of the Review Committee and to take an effective and definitive decision vests in the Government.
Even if there was some irregularity in the constitution of the Review Committee, that could not by itself, have the effect of vitiating the order of the respondent 's compulsory retirement.
[475E F] In the instant case it was not the respondent alone (from the category of Section Officers) whose case was reviewed by the Review Committee in question.
The cases of all the Section officers of the Secretariat, were reviewed by the same committee.
The respondent had therefore not been singled out for a differential treatment.
[475G]
|
TITION Nos.
356 361 OF 1977.
(Under Article 32 of the Constitution) N. A. Palkhiwala, J. B. Dadachanji, Ravinder Narain, O. C. Mathur, H. P. Raina, section Swarup, K. 1.
John, Talat Ansari, Mrs. A. K. Verma, section Thakora, Shri Narain, Robinson, F. section Nariman, A. N. Haksar, J. section Singh and Manzal Kumar for the Petitioners L. N. Sinha, Att.
Genl., K. K. Venugopal, Addl.
Genl., R. N. Sachthey, Grish Chandra, section Markendaya, Miss A. Subhashini and P. P. Singh for RR.
1 & 4.
T.V.S. Narasimhachari, M. section Ganesh and Kailash Vasudeva for RR 2 & 3.
L. N. Sinha, Att.
Genl., Miss A. Subhashini for Attorney General of India.
M. N. Shroff for the Advocates General for State of Maharashtra M. M. Ahdul Khader and K. R. Nambiar for the Advocate General for Kerala State.
N. Nettar for the Advocates General for state of Karnataka State.
Pranat Kumar Chatterjee, G. section Chatterjee and P. K. Chatterjee for State of West Bengal.
B. M. Patnaik Advt.
and R. K. Mehta for State of Orissa.
section L. Garg, Adv.
Genl and section K. Gambhir for State of Madhya Pradesh.
R. K. Rastogi, Adv.
Genl, Badridas Sharma and Aruneshwar Gupta for State of Rajasthan.
M. V. Goswami and O. P. Rana for State of U.P. P. H. Parekh for the interveners, M/s, Domestic Cast Pvt. Ltd. and ors.
Gocul Gas Pvt.
Ltd. and ors.
and Parel Investment Pvt. Ltd. and Ors.
M. N. Phadke and N. M. Ghatate for the Applicant interveners M/s. Waman Rao and Ors.
R. K. Garg and V. 1.
Francis for The Applicant Intervener Shyam Narain Tewari.
Chinta Subba Rao Applicant intervener in person.
M. C. Bhandare and M. N. Shroff applicant intervener for State of Maharashtra.
235 Capt.
Virendra Kumar applicant intervener in person.
A N. section Grewal, B. P. Maheshwari and Suresh Sethi for G. section Grewal applicant intervener.
H. K. Puri.
for the intervener M/s Shree Sitaram Sugar Co. Ltd. The following Judgments were delivered: B CHANDRACHUD, C. J.
In Keshavananda Bharati this Court held by a majority that though by Article 368 Parliament is given the power to amend the Constitution.
that power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure.
The question for consideration in this group of petitions under article 32 is whether sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 transgress that limitation, on the amending power.
Petitioner No. 1 which is a limited company owned a textile undertaking called Minerva Mills situated in the State of Karnataka.
This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974.
Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors.
Respondent 1 is the Union of India.
Respondent 2 is the National Textile Corporation Limited in which the textile undertaking of Minerva Mills comes to be vested under section 3(2) of the Nationalisation Act of 1974.
Respondent 3 is a subsidiary of the 2nd respondent.
On August 20, 1970, the Central Government appointed a Committee under section 15 of the Industries (Development and Regulation Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd., as it was of the opinion that there had been or was likely to be substantial fall in the volume of production.
The said Committee submitted its report to the Central Government in January 1971, on the basis of which the Central Government passed an order dated October 19, 1971 under section 18A of the Act of 1951, authorising Respondent 2 to take over the management of the Minerva Mills Ltd. On the ground that its affairs were being managed in a manner highly detrimental to public interest.
236 By these petitions, the petitioners challenge the constitutional validity of certain provisions of the Sick Textile Undertakings (NationaLisation) Act and of the order dated October 19, 1971.
We are not concerned with the merits of that challenge at this stage the petitioners further challenge the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 is the 9th Schedule to the Constitution.
That raises a question regarding the validity of article 31B of the Constitution with which we propose to deal in another batch of petitions.
Finally, the petitioners challenge the constitutionality Of sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976, and it is this contention alone with which we propose to deal in these petitions.
The challenge to the validity of section 4 and SS of the 42nd Amendment rests on the ratio of the majority judgment in Kesavanand Bharati (Supra).
The several opinions rendered in that case have been discussed and analysed threadbare in texts and judgments too numerous to mention.
All the same, we cannot avoid making a brief resume of the majority judgments since the petitioners must stand or fall by them.
Those judgments, on the point now in issue, were delivered by Sikri, CJ., Shelat and Grover JJ., Hegde and Mukherjea JJ., Jaganmohan Reddy J. and Khanna J. Sikri, CJ., held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest.
There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution" in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution.
Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution.
According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles 237 have to be balanced and harmonised.
This balance and harmony A between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered.
The word 'amendment ' occurring in Article 368 must therefore be construed in such a manner as to reserve the power of the Parliament to amend the constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution.
There was thus an implied limitation in the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.
Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features: basic and circumstantial.
The! basic constituent remained constant, the circumstantial was subject to change.
According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements or fundamental features.
The building of a welfare State, the learned Judges said, is the ultimate goal of every Government but that does not mean that in order to build a welfare state, human freedoms have to suffer a total destruction.
Applying these tests, the learned Judges invalidated Article 31C even in its unamended form.
Jaganmohan Reddy, J., held that the word 'amendment ' was used in the sense of permitting a change, in contra distinction, to destruction, which the repeal or abrogation brings about.
Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself.
The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity.
The word 'amendment ' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed.
According to the learned Judge, the provisions of Article 31C. as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional.
In conclusion, the learned Judge held that though the power of amendment was wide.
it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements on the basic structure of the Constitution or to 238 destroy the identity of the Constitution.
Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment ' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution.
According to the learned Judge.
although it was permissible to the Parliament.
in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions it was not permissible to touch the foundation or to alter the basic institutional pattern.
Therefore, the words "amendment of the Constitution", in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
The summary of the various judgments in Kesavananda Bharati (Supra) was signed by nine out of the thirteen Judges.
Paragraph 2 of the summary reads to say that according to the majority, "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution".
Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.
The question which we have to determine on the basis of the majority view in Keshavaananda Bharati (Supra) is whether the amendments introduced by sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.
Section 4 of the 42nd Amendment, which was brought into force with effect from January 3, 1977 amended Article 31C of the Constitution by substituting the words and figures "all or any of the principles laid down in Part IV" for the Words and figures "the principles specified in clause (b) or clause (c) of Article 39".
Article 31C. as amended by the 42nd Amendment Act reads thus: "31C. Notwithstanding anything contained in article 13.
no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes 239 away or abridges any of the rights conferred by article 14, A article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is 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.
" Section 55 of the Constitution (Forty second Amendment) Act, 1976, which was also brought into force with effect from January 3, 1977 inserted sub sections (4) and (5) in Article 368 which read thus: "(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement of section 55 of the Constitution (Forty second Amendment) Act, 1976) shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article".
We will first take up for consideration the comparatively easier question as regards the validity of the amendments made by section 55 of the 42nd Amendment.
It introduces two new clauses in Article 368, namely, clauses 4 and section Clause S speaks for itself and is self explanatory.
Its avowed purpose is the "removal of doubts" but after the decision of this Court in Kesavananda Bharati (Supra), there could be no doubt as regards the existence of limitations on the Parliament 's power to amend the Constitution.
In the context of the constitutional history of Article 368, the true object of the declaration contained in Article 368 is the removal of those limitations.
Clause S confers upon the Parliament a vast and undefined power to amend the Constitution, even, so as to distort it out of recognition.
The theme song of the majority decision in Keshvanand Bharati (Supra) is: 'Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation.
But, the Constitution is a precious heritage; therefore, you cannot destroy its identity '.
The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework.
And 240 what fears can that judgment raise or misgivings generate if it only means this and no more: The Preamble assures to the people of India a polity whose basic structure is described therein as a Sovereign Democratic Republic; Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India 's sovereignty and its democratic, republican character.
Democracy is not an empty dream.
It is a meaningful concept whose essential attributes are recited in the preamble itself: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship, and Equality of status and opportunity.
Its aim, again as set out in the preamble, is to promote among the people an abiding sense of 'Fraternity assuring the dignity of the individual and the unity of the Nation '.
The newly introduced clause S of Article 368 demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any "limitation whatever".
No constituent power can conceivably go higher than the sky high power conferred by clause (S), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government.
That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals.
The power to destroy is not a power to amend.
Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed.
In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.
The very 42nd Amendment which introduced clauses 4 and 5 in Article 368 made amendments to the preamble to which no exception can be taken.
Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy they afford strength and succor to its foundation.
By the aforesaid amendments, what was originally described as a 'Sovereign Democratic Republic ' became a "Sovereign Socialist Secular 241 Democratic Republic" and the resolution to promote the `unity of the Nation ' was elevated into a promise to promote the "unity and integrity of the Nation".
These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution.
They offer promise of more, they do not scuttle a precious heritage.
In Smt.
Indira Nehru Gandhi vs Raj Narain, Khanna, J. struck down clause 4 of Article 329A of the Constitution which abolished the forum for adjucating upon a dispute relating to the validity of an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, in its turn, is a part of the basic structure of the Constitution.
Mathew, J. also struck down the Article on the ground that it damaged the essential feature of democracy.
One of us.
Chandrachud.
J. reached the same conclusion by holding that the provisions of the Article were an outright negation of the right of equality conferred by Article 14, a right which, more than any other, is a basic postulate of the Constitution.
Thus whereas amendments made to the preamble by the 42nd Amendment itself afford an illustration of the scope of the amending power, the case last referred to affords an illustration of the limitations on the amending power.
Since, for the reasons above mentioned, clause 5 of Article 368 , transgresses the limitations on the amending power, it must be held to be unconstitutional.
The newly introduced clause 4 of Article 368 must suffer the same fate as clause 5 because the two clauses are inter linked.
Clause 5 purports to remove all limitations on the amending power while clause 4 deprives the courts of their power to call in question any amendment of the Constitution.
Our Constitution is founded on a nice balance of power among the three wings of the State, namely the Executive, the Legislature and the Judiciary.
It is the function of the Judges, nay their duty, to pronounce upon the validity of laws.
If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water.
A controlled Constitution will then become uncontrolled.
Clause (4) of Article 368 totally deprives the citizens of one of the most valuable modes of redress which is guaranteed by Article 32.
The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law 242 shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power.
If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts will be powerless to strike down.
Article 13 of the Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge.
Clause 4 of Article 368 is in one sense an appendage of Clause 5, though we do not like to describe it as a logical consequence of Clause 5.
If it be true, as stated in clause 5, that the Parliament has unlimited power to amend the Constitution, courts can have no jurisdiction to strike down any constitutional amendment as unconstitutional.
Clause 4, therefore, says nothing more or less than what clause 5 postulates.
If clause 5 is beyond the amending power of the Parliament, clause 4 must be equally beyond that power and must be struck down as such.
The next question which we have to consider is whether the amendment made by section 4 of the 42nd Amendment to Article 31C of the Constitution is valid.
Mr. Palkhiwala did not challenge the validity of the unamended Article 31C, and indeed that would not be done.
The unamended Article 31C forms the subject matter of separate proceeding and we have indicated therein that it is constitutionally valid to the extent to which it was upheld in Keshvananda Bharati (Supra).
By the amendment introduced by section 4 of the 42nd Amendment, provision is made in Article 31C saying that no law giving effect to the policy of the State towards securing "all or any of the principles laid down in Part IV" shall be deemed to be void on the ground that it is inconsistent with or takes away or a bridges any of the rights conferred by Article 14, Article 19 or Article 31.
It is manifest that the scope of laws which fall within Article 31C has been expanded vastly by the amendment.
Whereas under the original Article 31C, the challenge was excluded only in respect of laws giving effect to the policy of the State towards securing "the principles specified in clause (b) or clause (c) of Article 39" under the amendment.
243 all laws giving effect to the policy of the State towards securing "all or any of the principles laid down in Part IV" are saved from a constitutional challenge under Articles 14 and 19.
(The reference to Article 31 was deleted by the 44th Amendment as a consequence of the abolition of the right to property as a fundamental right).
The question for consideration in the light of this position is whether section 4 of the 42nd Amendment has brought about a result which is basically and fundamentally different from the one arising under the unamended article.
If the amendment does not bring about any such result, its validity shall have to be upheld for the same reasons for which the validity of the unamended article was upheld.
The argument of Mr. Palkhivala, who appears on behalf of the petitioners, runs thus : The amendment introduced by section 4 of the 42nd Amendment destroys the harmony between Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution.
The Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other.
The basic structure of the Constitution tests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the constitution.
In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III.
If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States.
to destroy democracy and establish an authoritarian regime.
All legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy.
The protection of the amended article will therefore be available to every legislative action under the sun.
Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.
The learned counsel further argues that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayat, providing living wages for workers and just and humane conditions of work.
free and compulsory education for 244 children, organisation of agriculture and animal husbandry, an protection of environment and wild life.
What the Constituent Assembly had rejected by creating a harmonious balance between Parts III and IV is brought back by the 42nd Amendment.
Finally, it is urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President.
Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation.
Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation.
While Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times.
Thus, apart from destroying one, of the basic features of the Constitution, namely, the harmony between Parts III and IV, section 4 of the 42nd Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.
These contentions were stoutly resisted by the learned Attorney General thus: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution.
Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far as clauses (d) and (e) of Article 19(1) are concerned.
They would therefore be several in any case.
The history of the Constitution.
particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by Articles 31A, 31B and the unamended Article 31C, which were all upheld by this Court, establish the width OB the amending power under Article 368.
The impugned amendment therefore manifestly falls within the sweep of the amending Power.
The learned Attorney general further argues: A law which fulfils the directive of Article 38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the Constitution in as much as that structure itself is founded on the principle of justice, social, economic and political.
Article 38, which contains a directive principle, provides that the State shall 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 political shall inform all the institutions of the national life.
A law which complies 245 with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimising inequalities.
A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice.
It will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article.
19 does not damage the basic structure of the Constitution.
The learned Additional Solicitor General has submitted a carefully prepared chart of 11 decisions of this Court ranging from Anvar Ali Sarkar to Haji Kader Kutty in order to show the possible impact of amended Article 31C on cases where this Court had held provisions of certain statutes to be violative of Article 14.
He urged on the basis of his tabulated analysis that there can be many cases which are not relatable to directive principles and will not therefore be saved by the amended article.
Those cases are reported in Anwar Ali Sarkar (Supra), Lachmandas Ahuja, Habib Muhammad, Moopil Nair, Jialal, Hazi Abdul Shakur, Devi Das, Osmania University, New Manek Chowk, Anandji Haridas and Haji Kader Kutty (Supra).
He has also submitted a chart of 13 cases involving laws relatable to directive principle in which the fundamental rights were abridged but not abrogated.
Since abridgement of fundamental rights in public interest is permissible as it does not damage the basic structure, laws similar to those involved in the 13 cases will not have to seek the protection of the amended article.
These illustrative cases are: Ram Prasad Sahi, Rao Manohar Singhji, Kunhikaman.
246 Orissa Cement, Krishnaswami Naidu, Mukanchand, Nallaraja Reddy, Jallan Trading Co., Kamrup, Mizo District Council, Balammal, Rashbehari Pande and R. C. Cooper.
The argument of the learned Additional Solicitor General proceeds thus: For extracting the ratio of Keshvananda Bharati (Supra).
One must proceed on the basis that there were as many cases as there were declarations sought for by the petitioners therein.
The majority in regard to Article 368 is different from the majority in regard to the decision in respect of Article 31C.
The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of the Article 31C will both sustain the validity of section 4 of the 42nd Amendment.
In regard to fundamental rights, the ratio of the judgments of 12 out of 13 Judges, i.e., all excepting Jagamohan Reddy J., will empower amendment of each one of the articles in part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution.
Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential features is within the permissible limits of amendment.
The unamended Article 31C having been upheld by the majority in Kesavanada Bharti both on the ground of stare decisis and on the ground of 'contemporaneous practical exposition ' the amended Article 31C must be held to be valid, especially since it is not brought about a qualitative change in comparison with the provisions of the unamended article.
A harmonious and orderly development of constitutional law would require that the phrases 'inconsistent with ' or 'take away ' which occur in Articles 31A, 31B and 31C should be read down to mean 'restrict ' or 'abridge ' and not 'abrogate '.
If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.
247 The learned counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution.
Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution.
If the unamended Article 31C is valid in reference to laws relatable to Articles 39(b) and (c), no dichotomy can be made between laws relatable to those provisions on the one hand and laws relatable to other directive principles.
A value judgment is not permissible to the Court in this area.
It is finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider: (i) whether the impugned law has 'direct and reasonable nexus ' with any of the directive principles.
(ii) whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto; (iii) whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and (iv) if so, whether the encroachment, in effect, abrogates that fundamental right.
Besides these contentions Mr. R. K. Garg has filed a written brief on behalf of the Indian Federation of Working Journalists, opposing the contentions of Mr. Palkhivala.
So have the learned Advocates General of the State of Karnataka and Uttar Pradesh.
Mr. Aruneshwar Gupta has filed a brief on behalf of the State of Rajasthan supporting the submissions of Mr. Palkhivala.
So has the State of Rajasthan.
The Advocates General of Maharashtra, Kerala, West Bengal and Orissa appeared through their respective advocates.
Both the Attorney General and the Additional Solicitor General have raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment.
It is contended by them that the issue formulated for consideration of the court; "whether the provisions of the Forty Second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are 248 ultra vires the amending power of Parliament?" is too wide and academic.
It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.
In support of this submission reliance is placed by the learned counsel on the decisions of the American Supreme Court in Commonwealth of Massachussetts vs Andrew W. Mellon.
George Ashwander vs Tennesee Valley Authority, and on Weaver 's Constitutional Law, 1946 Edition and American Jurisprudence.
Reliance is also placed on certain decisions of this court to which it is unnecessary to refer because the Attorney General and the Additional Solicitor General are right that it is the settled practice of this Court not to decide academic questions.
The American authorities on which the learned counsel rely take the view that the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in the manner of an academic discussion.
In other words, the courts do not anticipate constitutional issues so as to assume in advance that a certain law may be passed in pursuance of a certain constitutional amendment which may offend against the provisions of the Constitution.
Similarly, our Court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
It is only when the rights of persons are directly involved that relief is granted by this Court.
But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards the constitutionality of sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question.
The 42nd Amendment is there for any one to see and by its sections 4 and 55 amendments have been made to Articles 31C and 368 of the Constitution.
An order has been passed against the petitioners under section 18A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved.
Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection.
There is no constitutional or statutory inhibition against the decision 249 of questions before they actually arise for consideration.
In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position.
Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners.
We are dealing with a constitutional amendment which has been brought into operation and which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes.
We, therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.
The main controversy in these petitions centres round the question whether the directive principles of State policy contained in Art IV can have primacy over the fundamental rights conferred by Part III of the Constitution.
That is the heart of the matter.
Every other consideration and all other contentions are in the nature of by products of that central theme of the case.
The competing claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article 19.
The 42nd Amendment by its section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles.
The question of questions is whether in view of the majority decision in Kesavananda Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights.
The answer to this question must necessarily depend upon whether Articles 14 and 19 which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of directive Policy are essential features of the basic structure of the Constitution.
It is only if the rights conferred by these two articles are not a part of the basic structure.
Of the Constitution that they can be allowed to be abrogated by a constitutional amendment.
If they are a part of the basic structure they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever.
This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament.
250 There is no doubt that though the courts have always attached very great importance to the preservation of human liberties, no less importance has been attached to some of the Directive Principles of State Policy enunciated in Part IV.
In the words of Granville Austin,.
(The Indian Constitution: Corner Stone of a Nation, p. 50) the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goals of social revolution by establishing the conditions necessary for its achievement.
Therefore the importance of Directive Principles in the scheme of our Constitution cannot ever be over emphasized.
Those principles project the high ideal which the Constitution aims to achieve.
In fact Directive Principles of State policy are fundamental in the governance of the country and the Attorney General is right that there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations.
The promise of a better to morrow must be fulfilled to day; day after to morrow it runs the risk of being conveniently forgotten.
Indeed so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the compelled cult of their own "dirty hands".
Words bandied about in marbled halls say much but fail to achieve as much.
But there is another competing constitutional interest which occupies an equally important place in that scheme.
That interest is reflected in the provisions of Part III which confer fundamental rights some on citizens as Articles 15, 16 and 19 do and some on.
all persons alike as Articles 14, 20, 21 and 22 do.
As Granville Austin says: "The core of the commitment to the social revolution lies in Parts III and IV.
These are the conscience of the Constitution.
It is needless to cite decisions which have extolled and upheld the personal freedoms their majesty, and in certain circumstances, their inviolability.
It may however be profitable to see how the American Supreme Court, dealing with a broadly comparable Constitution, has approached the claim for those freedoms.
In Barbara Elfbrandt vs Imogene Russell the U. section Supreme Court was considering the constitutionality of an Arizona Statute requiring State employees to take a loyalty oath.
Justice Douglas speaking for the majority, observed while striking down the provision that: "Legitimate Legislative goals 'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can 251 be more narrowly achieved '. "The objectionable quality of. . overbreadth" depends upon the existence of a statute "susceptible of sweeping and improper application.
These freedoms are delicate and vulnerable as well as supremely precious in our society.
The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions".
In United States vs Herbet Guest, though the right to travel freely throughout the territory of the United States of America does not find an explicit mention in the American Constitution, it was held that the right to travel from one State to another occupied a position fundamental to the concept of the Federal Union and the reason why the right was not expressly mentioned in the American Constitution though it was mentioned in the Articles of Confideration, was that "a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created".
This position was reiterated in Winfield Dunn vs James F. Blumstein.
It was held therein that freedom to travel throughout the United States was a basic right under the Constitution and that the right was an unconditional personal right whose exercise may not be conditioned.
Therefore, any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, was unconstitutional.
In New York Times Company vs United States the United States Government sought an injunction against the publication, by the New York Times, of the classified study entitled "History of U. section Decision Making Process on Viet Nam Policy".
It was held by a majority of six Judges that any system of prior restraints of expression comes to the United States Supreme Court bearing a heavy presumption against its constitutional validity, and a party.
who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint.
In National Association for the Advancement of Coloured People vs State of Alabama, a unanimous court while dealing with an attempt to oust the National Association of Coloured People from the State of Alabama held: "In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognise that abridgement of such rights, even though unintended, may 252 inevitably follow from varied forms of governmental action".
In Frank Palko vs State of Connecticut.
Justice Cardozo delivering the opinion of the Court in regard to the right to freedom of thought and speech observed "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom".
In Jesse Cantwell vs State of Connecticut, Justice Roberts who delivered the opinion of the Court observed: "In the realm of religious faith, and in that of political belief, sharp differences arise.
In both fields the tenets of one man may seem the rankest error to his neighbour.
To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been or are, prominent in church or state, and even to false statement.
But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed, Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds.
There are limits to the exercise of these liberties.
The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all.
These and other transgressions of those limits the states appropriately may punish".
In Arthur Terminiello vs City of Chicago, Justice Douglas delivering the majority opinion of the Court, while dealing with the importance of the right to free speech, observed: "The vitality of civil and political institutions in our society depends on free discussion.
As Chief Justice Hughes wrote in De Jonge vs Oregon, it is only through free debate and free 253 exchange of ideas that government remains responsive to the will of the people and peaceful change is effected, The right to speak freely and to promote diversity of ideas and programmes is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
Accordingly a function of free speech under our system of government is to invite dispute.
It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
Speech is often provocative and challenging.
It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
That is why freedom of speech, though not absolute (Chaplinsky vs New Hampshire), is nevertheless protected against censorship or punishment unless shown likely to, produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
See Bridges vs California; Craig vs Horney.
There is no room under our Constitution for a more restrictive view.
For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.
" The history of India 's struggle for independence and the debates of the Constituent Assembly show how deeply our people value their personal liberties and how those liberties are regarded as an indispensable and integral part of our Constitution.
It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles, the leaders of our independence movement drew no distinction between the two kinds of State 's obligations negative and positive.
"Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian politics itself(4)".
The demand for inalienable rights traces its origin in India to the 19th Century and flowered into the formation of the Indian National Congress in 1885.
Indians demanded equality with their British rulers on the theory that the rights of the subjects cannot in a democracy be inferior to those of the rulers.
Out of that demand grew the plants of equality and free speech.
Those and other basic rights found their expression in Article 16 of The Constitution of 254 India Bill, 1895.
A series of Congress resolutions reiterated that demand between 1917 and 1919.
The emergence of Mahatma Gandhi; on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti British it became a movement for the acquisition of rights of liberty for the Indian Community.
Mrs. Besan 't Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement.
The Motilal Nehru Committee appointed by the.
Madras Congress resolution said at pp.
89 90: "It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances.
Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country.
Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion.
We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution.
" India represents a mosaic of humanity consisting of diverse religious linguistic and caste groups.
The rationale behind the insistence on fundamental rights has not yet lost its relevance, alas or not, The Congress session of Karachi adopted in 1931 the Resolution on Fundamental Rights as well as on Economic and Social change.
The Sapru Report of 1945 said that the fundamental rights should serve as a "standing warning" to all concerned that: "what the Constitution demands and expects is perfect.
equality between one section of the Community and another in the matter of political and civic rights equality of liberty and security in the enjoyment of the freedom of religion, worship and the pursuit of the ordinary applications of life".
(p. 260).
The Indian nation marched to freedom in this background.
The Constituent Assembly resolved to enshrine the fundamental rights in the written text of the Constitution.
The interlinked goals of personal liberty and economic freedom then came to be incorporated in two separate parts, nevertheless parts of an integral, indivisible scheme which was carefully and thoughtfully nursed over half a century.
The seeds sown in the 19th Century saw their fruition in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar.
To destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.
255 Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as "transcendental", "inalienable" and "primordial".
For us, it has been said in Kesavananda Bharti (p. 991), they constitute the ark of the constitution.
The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution.
Granville Austin 's observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other.
You snap one and the other will lose its efficacy.
They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves.
In other words, the Indian Constitution is founded on the bed rock of the balance between Parts III and IV.
To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
This is not mere semantics.
The edifice of our Constitution is built upon the concepts crystallised in the Preamble.
We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice social, economic and political.
We, therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved.
We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved.
We, therefore, put Part, III in our Constitution conferring those rights on the people.
Those rights are not an end in themselves but are the means to an end.
The end is specified in Part IV.
Therefore, the rights conferred by Art III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended.
But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms.
One of the faiths of our founding fathers was the purity of means.
Indeed, under our law, even a dacoit who has committed a murder cannot be put to death 256 in the exercise of right of self defence after he has made good his escape.
So great is the insistence of civilised laws on the purity of means.
The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III.
It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience.
Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.
It is in this light that the validity of the.
amended Article 31C has to be examined.
Article 13(2) says that the State shall not make any law which takes away or abridges the rights conferred by Part Ill and any law made in contravention of that clause shall to the extent of the contravention be void.
Article 31C begins with a non obstante clause by putting Article 13 out of harm 's way.
It provides for a certain consequence notwithstanding anything contained in Article 13.
It then denudes Articles 14 and 19 of their functional utility by providing that the rights conferred by these Articles will be no barrier against passing laws for giving effect to the principles laid down in Part IV.
On any reasonable interpretation, there can be no doubt that by the amendment introduced by section 4 of the 42nd Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law is in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of state Policy.
We are disposed to accept, the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV.
But, that, in our opinion, is beside the point.
A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV.
In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 15 and 19 will stand wholly withdrawn.
It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least.
some laws will fall outside the scope of Article 31C. We have to decide the matter before us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach.
We must not miss the wood for the trees.
A total 257 deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can.
An author, who writes exclusively on foreign matters, shall have been totally deprived of the right of free speech and expression if he is prohibited from writing on foreign matters.
The fact therefore that some laws may fall.
Outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution.
It was repeatedly impressed upon us, especially by the Attorney General, that Article 38 of the Constitution is the king pin of the directive principles and no law passed in order to give effect to the principle contained therein can ever damage or destroy the basic structure of the Constitution.
That Article provides that the State shall 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 political, shall inform all the institutions of the national life.
We are unable to agree that all the directive Principles of State Policy contained in part IV eventually verge upon Article 38.
Article 38 undoubtedly contains a broad guideline, but the other directive principles are not mere illustrations of the principle contained in Article 38.
Secondly, if it be true that no law passed for the purpose of giving effect to the directive principle contained in Article 38 can damage or destroy the basic structure of the Constitution, what was the necessity, and more so the justification.
for providing by a constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14 and 19 ? The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6).
Laws which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that Article 31 was amended to say that the provisions of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C. Articles 14 and 19 do not confer any fanciful rights.
They confer rights which are elementary for the proper and effective functioning of a democracy.
They are universally so regarded, as is evident from the universal Declaration of Human Rights.
Many countries in the civilised world have parted with their sovereignty in the hope and belief 258 that their citizens will enjoy human freedoms.
And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms.
If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life blood.
Article 32(4) provides that the right.
guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution.
Section 4 of the 42nd Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32.
The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification.
By a long series of decisions this Court had held that Article 14 forbids class legislation but it does not forbid classification.
The purpose of withdrawing the protection of Article 14, therefore, can only be to acquire the power to enact class legislation.
Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens.
Already, there are disturbing trends on a part of the Indian horizon.
Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India.
The nature and quality of the amendment introduced by section 4 of the 42nd Amendment is therefore such that it virtually tears away the heart of basic fundamental freedoms.
Article 31C speaks of laws giving effect to the policy of the "State".
Article 12 which governs the interpretation of Article 3 LC provides that the word "State" in Part III includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Wide as the language of Article 31C is, the definition of the word "State" in Article 12 gives to Article 31C an operation of the widest amplitude.
Even if a State Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of Articles 14 and 19.
The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.
The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life.
He says that the deprivation of some of the fundamental rights for the purpose 259 of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution.
We are unable to accept this contention.
The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone.
They are common to all polities, democratic or authoritarian.
Every State is goal oriented and claims to strive for securing the welfare of its people.
The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19.
Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all Costs.
Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government 's purposes are beneficent.
If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment.
The learned Attorney General and the learned Solicitor General strongly impressed upon us that Article 31C should be read down so as to save it from the challenge of unconstitutionality.
It was urged that it would be legitimate to read into that Article the intendment that only such laws would be immunised from the challenge under Articles 14 and 19 as do not damage or destroy the basic structure of the Constitution.
The principle of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is well known.
But we find it impossible to accept the contention of the learned counsel in this behalf because, to do so will involve a gross distortion of the principle of reading down, depriving that doctrine of its only or true rationale when words of width are used inadvertently.
The device of reading down is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one 's liking to have been passed.
One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment.
Mr. Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the amendment to Article 31 C, said that the amendment was being introduced because the government did not want the "let and hindrance" of the fundamental rights.
If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of 260 that power so as to make it limited.
The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature.
We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends.
In fact, to accept the argument that we should read down Article 31C, so as to make it conform to the ratio of the majority decision in Kesavanda Bharti, is to destroy the avowed purposes of Article 31C as indicated by the very heading "Saving of certain laws" under which Articles 31A, 31B and 31C are grouped.
Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.
A part of the same argument was pressed upon us by the learned Additional Solicitor General who contended that it would still be open to the Courts under Article 31C to decide four questions: (1) Does the law secure any of the directive principles of the Stats policy? (ii) Is it necessary to encroach upon fundamental rights in order to secure the object of the directive principles? (iii) what is the extent of such encroachment, if any? and (iv) Does that encroachment violate the basic structure of the Constitution? This argument is open to the same criticism to which the argument of the learned Attorney General is open and which we have just disposed of.
Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that article.
It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violate Article 14 or Article 19.
It would be sheer adventurism of a most extraordinary nature to undertake the kind of judicial enquiry which, according to the learned Additional Solicitor General, the courts are free to undertake.
We must also mention, what is perhaps not fully realised, that Article 31C speaks of laws giving effect to the "Policy of the State", "towards securing all or any of the principles laid down in Part IV." ' In the very nature of things it is difficult for a court to determine whether a particular law gives effect to a particular policy.
Whether a law is adequate enough to give effect to the policy of the State towards securing a directives principle is always a debatable question 261 and the courts cannot set aside the law as invalid merely because, in their opinion, the law is not adequate enough to give effect to a certain policy.
In fact, though the clear intendment of Article 31C is to shut out all judicial review, the argument of the learned Additional Solicitor General calls for a doubly or trebly extensive judicial review than is even normally permissible to the courts.
Be it be remembered that the power to enquire into the question whether there is a direct and B. reasonable nexus between the provisions of a law and a directive principle cannot confer upon the courts the power to sit in judgment over the policy itself of the State.
At the highest, courts can, under Article 31C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a directive principle.
If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow.
Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharati were agreed, it is this: that the only question open to judicial review under the unamended Article 31 was whether there is a direct and reasonable nexus between the impugned law and the provisions of Article 39(b) and (c).
Reasonableness is evidently regarding the nexus and not regarding the law.
It is therefore impossible to accept the contention that it is open to the courts to undertake the kind of enquiry suggested by the Additional Solicitor General.
The attempt therefore to drape Article 31C into a democratic outfit under which an extensive judicial review would be permissible must fail.
We should have mentioned that a similar argument was advanced in regard to the amendment effected by section 55 of the 42nd Amendment to Article 368, by the addition of clauses (4) and (5) therein.
It was urged that we should so construe the word "amendment" in clause (4) and the word "amend" in clause 5 as to comprehend only such amendments as do not destroy the basic structure of thy Constitution.
That argument provides a striking illustration of the limitations of the doctrine of reading down.
The avowed purpose.
Of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any "limitation whatever".
Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content.
The learned Attorney General then contends that Article 31C should be upheld for the same reasons for which Article 31A(1) was upheld.
Article 31A (1) was considered as a contemporaneous practical exposition of the Constitution since it was inserted by the very First Amendment which was passed in 1951 by the same body of persons who were members of the Constituent Assembly.
We can understand: 262 that Article 31A can be looked upon as a contemporaneous Practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C.
Besides, there is a significant qualitative difference between the two Articles.
Article 31A, the validity of which has been recognised over the years excludes the challenge under Articles 14 and 19 in regard to a specified category of laws.
If by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the constitution may remain unimpaired.
But if the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a 'parchment in a glass case ' to be viewed as a matter of historical curiosity.
An attempt was made to equate the provisions of Article 31 with those of Article 31A in order to lend plausibility to the contention that since Article 31A was also upheld on the ground of stare decisis Article 31 can be upheld on the same ground.
We see no merit in this contention.
In the first place, as we have indicated above.
the five matters which are specified in Article 31A are of such quality, nature, content and character that at least a debate can reasonably arise whether abrogation of fundamental rights in respect of those matters will damage or destroy the basic structure of the Constitution.
Article 31C does not deal with specific subjects.
The directive principles are couched in broad and general terms for the simple reason that they specify the goals to be achieved.
Secondly, the principle of stare decisis cannot be treated as a fruitful source of perpetuating curtailment of human freedoms.
No court has upheld the validity of Article 31A on the ground that it does not violate the basic structure of the Constitution.
There is no decision on the validity of Article 31A which can be looked upon as a measuring rod of the extent of the amending power.
To hark back to Article 31A every time that a new constitutional amendment is challenged is the surest means of ensuring a drastic erosion of the fundamental rights conferred by Part III.
Such a process will insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda Bharati regarding the inviolability of the basic structure.
That ratio requires that the validity of each new constitutional amendment must be judged on its own merits.
Nor indeed are we impressed by a limb of the same argument that when Article 31A was upheld on the ground of stare decisis, what was upheld was a constitutional device by which a class of subject oriented laws was considered to be valid.
The simple ground on which Article 31A was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the years and, therefore, it was not permissible 263 to challenge its constitutionality.
The principle of stare decisis does not imply the approval of the device or mechanism which is employed for the purpose of framing a legal or constitutional provision.
It was finally urged by the learned Attorney General that if we uphold the challenge to the validity of Article 31C, the validity or clauses (2) to (6) of Article 19 will be gravely imperilled because those clauses will also then be liable to be struck down as abrogating the rights conferred by Article 19(1) which are an essential feature or the Constitution.
We are unable to accept this contention.
Under clauses (2) to (6) of Article 19, restrictions can be imposed only if they are reasonable and then again, they can be imposed in the interest of a stated class of subjects only.
It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject.
Apart from other basic dissimilarities, Article 31C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses (2) to (6) of Article 19.
Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law.
Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power.
They are Articles 14, 19 and 21.
Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is.
without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.
These then are our reasons for the order which we passed on May 9, 1980 to the following effect: "Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution." "Section 55 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it removes all limitations on the power of the Parliament to 264 amend the Constitution and confers power upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.
" There will be no order as to costs.
BHAGWATI, J. (His Lordship 's Judgment is a common judgment for Waman Rao 's case and Minerva Mill 's case.
The petitioners in Writ Petitions Nos. 656 to 660 of 1977 Wamanrao & others etc, vs The Union of India & ors.
(hereinafter referred to as Wamanrao 's case) and other allied petitions have challenged the constitutional validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961 (herein after referred to as the principal Act) as amended by the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings and (Amendment Act 1972 (hereinafter referred to as Act 21 of 1975) and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act 1975 (hereinafter referred to as Act 47 of 1975) and the Maharashtra Agricultural Lands (Ceiling on Holdings) Amendment Act 1975 (hereinafter referred to as Act 2 of 1976) on the ground that the amended provisions of the Act are violative of Articles 14, 19(1)(f), 31 and 31A of the Constitution.
We shall hereafter for the sake of convenience refer to the principal Act as duly amended by the subsequent Acts 21 of 1975, 47 of 1975 and 2 of 1976 as "the impugned legislation".
It is not necessary for the purpose of this opinion to set out the relevant provisions of the impugned legislation but it is sufficient to state that it imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for 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 subserve the common good of the people.
The impugned legislation recognised two units for the purpose of ceiling on holding of agricultural land.
One was person which by its definition in section 2, sub section (2) included a family and 'family ' by virtue of section 2, sub section (11) included 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 estate or possession or residence and the other was 'family unit ' which according to its definition in section 2(11A) read with section 4, meant a person and his spouse and their minor sons and minor unmarried daughters The impugned legislation created an artificial concept of a 'family unit ' for the purpose of applicability of the ceiling and provided that all lands held by each member of the family unit whether jointly or separately shall be aggregated together and by a fiction of law deemed to be held by the family unit.
There were also certain provisions in the impugned legislation which prohibited transfers and acquisitions 265 of agricultural land with a view to effectuating the social policy and economic mission of the law.
The impugned legislation also contained provisions prescribing the machinery for implementation of its substantive provisions.
Now plainly and unquestionably this was a piece of legislation relating to agrarian reform and was immunised against challenge under Articles 14, 19 and 31 by the protective cloak of Article 31A but even so, by way of abundant caution, it was given additional protection of Article 31B by including the Principal Act and the subsequent amending Acts in the 9th Schedule: vide the Constitution (Seventeenth Amendment) Act 1964 and the Constitution (Fortieth Amendment) Act, 1976.
The drastic effect of the impugned legislation was to deprive many land holders of large areas of agricultural lands held by them.
Some of them, therefore.
preferred writ petitions in the High Court of Bombay at Nagpur challenging the constitutional validity of the impugned legislation and on the challenge being negatived by the High Court, they preferred appeals in this Court.
The only contention advanced on behalf of the land holders in support of the appeals was that the impugned legislation in so far as it introduced an artificial concept of a 'family unit ' and fixed ceiling on holding of land by such family unit was violative of the second proviso to cl.
(1) of Article 31A and was not saved from invalidation by the protective armour of Article 31B.
This contention was negatived by the Constitution Bench and it was held that the impugned legislation did not, by creating an artificial concept of a family unit and fixing ceiling on holding of land by such family unit, conflict with the second proviso to clause (1) of Article 31A and even if it did contravene that proviso, it was protected by Article 31B since the principal Act as well as the subsequent amending Acts were included in the 9th Schedules vide Dattatraya Govind Mahajan vs State of Maharashtra.
Now at the time when this hatch of cases was argued before the Court, the emergency was in operation and hence it was not possible for the land holders to raise many of the contentions which they could otherwise have raised and, therefore, as soon as the emergency was revoked, the landholders filed review petitions in this Court against the decision in Dattatraya Govind Mahajan 's case and also preferred direct writ petitions in this Court challenging once again the constitutional validity of the impugned legislation.
Now, concededly, Article 31A provided complete immunity to the impugned legislation against violation of Articles 14, 19 and 31 and Article 31B read with he 9th Schedule protected the impugned legislation not only against violation of Articles 14, 19 and 31 but 266 also against infraction of the second proviso to Clause (1) of Article 31A.
Moreover, the impugned legislation being manifestly one for giving effect to the Directive Principles contained in Article 39 clauses (b) and (c), it was also protected against invalidation by Article 31C. The petitioners could not therefore successfully assail the constitutional validity of the impugned legislation unless they first pierced the protective armour of Articles 31A, 31B and 31C.
The petitioners sought to get Articles 31A, 31B and 31C out of the way by contending that they offended against the basic structure of the Constitution and were.
therefore, outside the constituent power of Parliament under Article 368 and hence unconstitutional and void.
The argument of the petitioners was that these constitutional amendments in the shape of Articles 31A, 31B and 31C being invalid, the impugned legislation was required to meet the challenge of Articles 14, 19(1)(f), 31 and 31A and tested on the touchstone of these constitutional guarantees.
the impugned legislation was null and void.
The first and principal question which, therefore, arose for consideration in these cases was whether Articles 31A, 31B and 31C are ultra vires and void as damaging or destroying the basic structure of the Constitution.
We may point out here that we were concerned in these cases with the constitutional validity of Article 31C as it stood prior to its amendment by the Constitution (Forty Second Amendment) Act, 1976.
because it was the unamended Article 31C which was in force at the dates when.
the amending Acts were passed by the legislature amending the principal Act.
These cases were heard at great length with arguments ranging over a large areas and lasting for over five weeks and we reserved judgment on 8th March ]979.
Unfortunately.
we could not be ready with our judgment and hence on 9th May 1980 being the last working day of the Court before the summer vacation we made an order expressing our conclusion but stating that we would give our reasons later.
By this order we held that Article 31A does not damage any of the basic or essential features of the Constitution or its basic structure and is therefore valid and constitutional and so is Article 31C as it stood prior to its amendment by the Constitution (Forty Second Amendment) Act, 1976 valid to the extent its constitutionality was upheld in Kesavananda Bharati 's case.
So far as Article 31B is concerned, we said that Article 31 as originally introduced was valid and so also are all subsequent amendments including various Acts and Regulations in the 9th Schedule from time to time upto 24th April, 1973 when Kesavananda Bharati 's case was decided.
We did not express any final opinion on the constitutional validity of the amendments made in the 9th Schedule on or after 24th April 1973 but we made it clear that, these amendments would be open to 267 challenge on the ground that they or any one or more of them damage the basic or essential features of the Constitution or its basic structure.
and are therefore.
Outside the constituent power of Parliament.
This was The order made by us on 9th May. 1980 and for reasons which I shall mention presently.
I propose to set out in this Judgment my reasons for subscribing to this order.
So far as Minerva Mills Case is concerned, the challenge of the petitioners was directed primarily against an order dated 19th October, 1971 by which the Government of India, in exercise of the power conferred under Sec.
18A of the Industries (Development and Regulation) Act, 1951, authorised the taking over of the management of the industrial undertaking of the petitioners by the National Textile Corporation under the Sick Textile Undertakings (Nationalisation) Act 1974 (hereinafter referred to as the Nationalisation Act) by which the entire Industrial undertaking and the right, title and interest of the petitioners in it stood transferred to and vested in the Central Government on the appointed date.
We are not concerned for the purpose of the present opinion with the challenge against the validity of the Order dated 19th October, 1971, for the question which has been argued before us arises only out of the attack against the constitutionality of the Nationalisation Act.
The petitioners challenged the constitutional validity of the Nationalisation Act inter alia on the ground of infraction of Articles 14, 19(1)(f) and (g) and 31 Clause (2), but since the Nationalisation Act has been included in the 9th Schedule by the Constitution (Thirty ninth Amendment) Act, 1975, the petitioners also attacked the constitutionality of the Constitution (Thirty ninth Amendment) Act, 1975, for it is only if they could get the Nationalisation Act out from the protective wing of Article 31B by persuading the Court to strike down the Constitution (Thirty ninth Amendment) Act, 1975, that they could proceed with their challenge against the constitutional validity of the Nationalisation Act Now clauses (4) and (5) which were introduced in Article 368 by section 55 of the Constitution (Forty second Amendment) Act, 1976 and which were in force at the date of the filing of the writ petitions provided that no amendment of the Constitution made or purported to have been made whether before or after the commencement of that section shall be called in question in any Court on any ground and barred judicial review of the validity of a constitutional amendment (obviously, if these two clauses were validly included in Article 368, they would stand in the way of the petitioners challenging the constitutional validity of the Constitution (Thirty ninth Amendment) Act, 1975.
The petitioners were, therefore, compelled to go further and impugn the constitutional validity of section 55 of the Constitution 268 (Forty second Amendment) Act, 1976.
This much challenge, as shall presently point out, would have been sufficient to clear the path for the petitioners in assailing the constitutional validity of the Nationalisation Act, but the petitioners, not resting content with what was strictly necessary, proceeded also to challenge section 4 of the Constitution (Forty second Amendment) Act, 1976 which amended Article 31C.
There were several grounds on which the constitutional validity of the Constitution (Forty second Amendment) Act, 1976 was impugned in the writ petitions and I shall refer to them when I deal with the arguments advanced on behalf of the parties.
Suffice it to state for the present, and this is extremely important to point out.
that when the writ petitions reached hearing before us, Mr. Palkhiwala, learned counsel appearing on behalf of the petitioners requested the Court to examine only one question, namely, whether the amendments made in Article 31C and Article 368 by section 4 and SS of the Constitution (Forty second Amendment) Act, 1976 were constitutional and valid and submitted that if these constitutional amendments were held invalid, then the other contentions might be examined by the Court at a later date.
He conceded before us, in the course of the arguments, that he was accepting the constitutional validity of Articles 31A, 31B and the unamended Article 31C and his only contention vis a vis Article 31C was that it was the amendment made in Article 31C which had the effect of damaging or destroying the basic structure of the Constitution and that amendment was, therefore, beyond the constituent power of Parliament.
The learned Attorney General on behalf of the Union of India opposed this plea of Mr. Palkhiwala and urged by way of preliminary objection that though the question of constitutional validity of clauses (4) and (S) of Article 368 introduced by way of amendment by section SS of the Constitution (Forty second Amendment Act, 1976 undoubtedly arose before the Court and it was necessary for the Court to pronounce upon it, the other question in regard to the constitutional validity of the amendment made in Article 31C did not arise on the writ petitions and the counter affidavits and it was wholly academic and superfluous to decide it.
This preliminary objection raised by the learned Attorney General was in my opinion well founded and deserved to be sustained.
Once Mr. Palkhiwala conceded that he was not challenging the constitutionality of Article 31A, Article 31B and the unamended Article 31C and was prepared to accept them as constitutionally valid, it became wholly unnecessary to rely on the amended Article 31C in support of the validity of the Nationalisation Act, because Article 31B would, in any event, save it from invalidation on the ground of infraction of any of the Fundamental Rights.
In fact, if we look at the counter affidavit filed by Mr. T. section Sahani, Deputy Secretary, Government of 269 India in reply to the writ petitions, we find that no reliance has been placed on behalf of the Government on the amended Article 31C. The case of the Union of India is and that is supported by the legislative declaration contained in section 39 of the Nationalisation Act, that this Act was enacted for giving effect to the policy of the State towards securing the principles specified in clause (b) of Article 39 of the Constitution.
Neither the Union of India in its counter affidavit nor the learned Attorney General in the course of his arguments relied on any other Directive Principle except that contained in Article 39 clause (b).
Mr. Palkhiwala also did not make any attempt to relate the Nationalisation Act to any other Directive Principle of State Policy.
Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principle set out in Article 39 clause (b) as declared in section 39 or it was not such a law and the legislative declaration contained in section 39 was a colourable device.
If it was the former, then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles 14, 19 and 31 and it would be unnecessary o invoke the amended Article 31C and if it was the latter, then neither the unamended nor the amended Article 31C would have any application.
Thus, in either event, the amended Article 31C would have no relevance at all in adjudicating upon the constitutional validity of the Nationalisation Act.
It is difficult to see how, in these circumstances, the Court could be called upon to examine the constitutionality of the amendment made in Article 31C: that question just did not arise for consideration and it was wholly unnecessary to decide it.
Mr. Palkhiwala could reach the battle front for challenging the constitutional validity of the Nationalisation Act as soon as he cleared the road blocks created by the unamended Article 31C and the Constitution (Thirty ninth Amendment) Act, 1975 bringing the Nationalisation Act within the protective wing of Article 31B and it was not necessary for him to put the amendment in Article 31C out of the way as it did not block his challenge against the validity of the Nationalisation Act.
I am, therefore, of the view that the entire argument of Mr. Palkhiwala raising the question of constitutionality of the amendment in Article 31C was academic and the Court could have very well declined to be drawn into it, but since the Court did, at the invitation of Mr. Palkhiwala, embark upon this academic exercise and spent considerable time over it, and the issues raised are also of the gravest significance to the future of the nation, I think, I will be failing in my duty if I do not proceed to examine this question on merits.
I may point out at this stage (that the arguments on this question were spread over a period of about three weeks and considerable 270 learning and scholarship were brought to bear on this question on both sides.
The hearing of the arguments commenced on 22nd October 1979 and it ended on 16th November 1979.
I hoped after the completion of the arguments on questions of such momentous significance, there would be a 'free and frank exchange of thoughts ' in a judicial conference either before or after the draft judgment was circulated by my Lord the Chief Justice and I would either be able to share the views of my colleagues or if that was not possible, atleast try to persuade them to agree with my point of view.
But, I find myself in the same predicament in which the learned Chief Justice found himself in Keshavananda Bharti vs State of Kerala.
The learned Chief Justice started his judgment in that case by observing "I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open.
We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I would be able to share the views of someone or the other of my esteemed brothers, but we were over taken by adventitious circumstances," namely, so much time was taken up by counsel to explain their respective points of view that very little time was left to the Judges "after the conclusion of the arguments, for exchange of draft judgments".
Here also, I am compelled by similar circumstances, though not adventitious, to hand down a separate opinion without having had an opportunity to discuss with my colleagues the reasons which weighed with them in striking down the impugned constitutional amendments.
Some how or other, perhaps owing to extraordinary pressure of work with which this Court is over burdened.
no judicial conference or discussion was held nor was any draft judgment circulated which could form the basis of discussion, though.
as pointed out above, the hearing of the arguments concluded as far back as 16th November, 1979.
It was only on 8th May, 1980, just two days before the closing of the Court for the summer vacation, that I was informed by the learned Chief Justice that he and the other three learned Judges, who had heard this case along with me, had decided.
to pass an order declaring the impugned constitutional amendments ultra vires and void on the ground that they violated the basic features of the Constitution and that the reasons for this order would be given by them later.
I found it difficult to persuade myself to adopt this procedure, because there had been no judicial conference or discussion amongst the Judges where there could be free and frank exchange of views nor was any draft judgment circulated and hence I did not have the benefit of knowing the reasons why the learned Chief Justice and the other three learned judges were 271 inclined to strike down the constitutional amendments.
If there had been a judicial conference or discussion or the draft judgment setting out the reasons for holding the impugned constitutional amendments Ultra vires and void had been circulated, it would have been possible for me, as a result of full and frank discussion or after considering the reasons given in the draft judgment, either to agree with the view taken by my Lord the Chief Justice and the other three learned judges or if I was not inclined so to agree, then persuade them to change their view and agree with mine.
That is the essence of judicial collectivism.
It is, to my mind, essential that a judgment of a Court should be the result of collective deliberation of the judges composing the Court and it would, in my humble opinion, not be in consequence with collective decision making, if one or more of the judges constituting the Bench proceed to say that they will express their individual opinion, ignoring their colleagues and without discussing the reasons with them and even without circulating their draft judgment so that the colleagues have no opportunity of participating in the collective decision making process.
This would introduce a chaotic situation in the judicial process and it would be an unhealthy precedent which this Court as the highest Court in the land as a model judicial institution which is expected to set the tone for the entire judiciary in the country should not encourage Moreover, I felt that it was not right to pronounce an order striking down a constitutional amendment without giving a reasoned judgment.
Ordinarily, a case can be disposed of only by a reasoned judgment and the order must follow upon the judgment.
lt is true that sometimes where the case involves the liberty of the citizen or the execution of a death sentence or where the time taken in preparing a reasoned judgment might pre judicially affect the winning party, this Court, does, in the larger interests of justice, pronounce an order and give reasons later, but these are exceptional cases where the requirements of justice induces the Court to depart from the legally sanctioned course.
But, there the court had in fact waited for about 5 1/2 months after the conclusion of the arguments and there was clearly no urgency which required that an order should be made though reasons were not ready, the delay of about 22 months in making the order was not going to injure the interests of any party, since the order was not going to dispose of the writ petition and many issues would still remain to be decided which could be dealt only after the summer vacation.
Thus there would have been no prejudice to the interests of justice if the order had been made on he re opening of the Court after the summer vacation supported by a reasoned judgment.
These were the reasons which compelled me to make my order dated 9th May, 1980 declining to pass an unreasoned order pronouncing on the validity of the impugned constitutional 272 amendments and stating that I would "prefer to pass a final order in this case when I deliver my reasoned judgment".
This order unfortunately led to considerable misunderstanding of my position and that is the reason why I have thought it necessary to explain briefly why I acted in the manner I did.
There is also one other predicament from which I suffer in the preparation of this opinion.
It is obvious that the decision of the questions arising in Wamanrao 's case is closely and integrally connected with the decision of the questions in Minerva Mill 's case and therefore, logically as also from the point of view of aesthetics and practical pragmatics, there should be one opinion dealing with the questions in both the cases.
But, unfortunately Minerva Mill 's case was heard by a Bench of five judges different from the Bench which heard Wamanrao 's case.
Wamanrao 's case was heard by a Bench consisting of the learned Chief Justice, myself, Krishna Iyer, J., Tulzapurkar, J. and A. P. Sen, J. while Krishna Iyer, J., Tulzapurkar, J. and A. P. Sen, J. were not members of the Bench which heard the Minerva Mill 's case.
Since two different Benches heard these cases, there would ordinarily have to be two opinions, one in each case.
I. however, propose to write a single opinion dealing with the questions arising in both cases, since that is the only way in which I think I can present an integrated argument in support of my view, without becoming unduly and unnecessarily repetitive.
The principal question that arises for consideration in these two cases is whether Article 31A, Article 31B read with the 9th Schedule as amended from time to time and particularly by the Constitution (Seventeenth Amendment) Act, 1964 and the Constitution (Fortieth Amendment) Act, 1976, Article 31C as it stood prior to its amendment by the Constitution (Forty second Amendment) Act, 1976 and the amended Article 31C are constitutionally valid; do they fall within the scope of the amending power of Parliament under Article 368.
The determination of this question depends on the answer to the larger question as lo whether there are any limits on the amending power of Parliament under Article 368 and if so, what are the limits.
This question came up for consideration before a Bench of 13 Judges of this Court the largest Bench that ever sat and after a hearing which lasted for 68 days the longest hearing that ever took place eleven judgments were delivered which are reported in Keshavananda Bharti vs State of Kerala (supra).
The earlier decision of this Court in l.
C. Golaknath & Ors.
vs State of Punjab where, by a majority of six against five, the fundamental 273 rights were held to be unamendable by Parliament under Article 368, was over ruled as a result of the decision in Keshavananda Bharti 's case.
But, six out of the thirteen learned Judges (Sikri, C. J. Shelat, Grover, Hegde, Reddy and Mukharjea, JJ.
accepted the contention of the petitioners that though Article 368 conferred power to amend the Constitution, there were inherent or implied limitations on the power of amendment and therefore Article 368 did not confer power on Parliament to amend the Constitution so as to destroy or emasculate the essential or basic elements or features of the Constitution.
The fundamental rights, according to the view taken by these six learned Judges, constituted basic or essential features of the Constitution and they could not be, therefore, abrogated or emasculated in the exercise of the amending power conferred by Article 368, though a reasonable abridgment of those rights could be effected in the public interest.
Khanna, J. found it difficult in the face of the clear words of Article 368 to exclude from their operation Articles relating to fundamental rights and he held that "the word 'amendment ' in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging Fundamental rights in Part II of the Constitution or whether it pertains to some other provision outside Part III of the Constitution.
" But proceeding to consider the meaning of the word 'amendment ', the learned Judge held that the power to amend does not include the power to abrogate the Constitution, that the word 'amendment ' postulates that the existing Constitution must survive without loss of identity, that it must be retained though in an amended from.
and therefore.
the power of amendment does not include the power to destroy or abrogate the basic structure or framework of the Constitution.
The remaining six Judges took the view that there were no limitations of any kind on the power of amendment, though three of them seemed willing to foresee the limitation that the entire Constitution could not be abrogated, leaving behind a State without a Constitution.
Now some scholars have expressed the view that from the welter of confusion created by eleven judgments running over a thousand pages, it is not possible to extract any ratio decidendi which could be said to be the law declared by the Supreme Court.
It is no doubt true that the six judges led by Sikri.
C.J., have read a limitation on the amending power of Parliament under Article 368 and so has Khanna, J., have employed the formulations "basic features" and "essential elements" while Khanna.
J. has employed the formulation "basic structure and framework" to indicate what in each view is immune from the amendatory process and it is argued that "basic features" and "essential elements" cannot be regarded as synonymous with "basic structure and framework".
274 These scholars have sought to draw support for their view from the following observation of Khanna, J. at page 706 of the Report: "It is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment.
So far as the expression "essential features" means the basic structure or framework of the Constitution.
I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution.
Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.
" Whatever be the justification for this view on merits, I do not think that this observation can be read as meaning that in the opinion of Khanna, J. "basic structure or frame work" as contemplated by him was different from "basic features" or "essential elements" spoken of by the other six learned judges.
It was in the context of an argument urged on behalf of the petitioners that the "essential features" of the Constitution cannot be changed that this observation was made by Khanna, J. clarifying that if the "essential features" meant the "basic structure or framework" of the Constitution, the argument of the petitioners would be acceptable, but if the "essential features" did not form part of the "basic structure or framework ' ' and went beyond it, then they would not be immune from the amendatory process.
But it does appear from this observation that The six Judges led by Sikri C.J.
On the one hand and Khanna, J. On the other were not completely ad idem as regards the precise scope of the limitation on the amendatory power of Parliament.
This might have raised a serious argument as to whether there, any ratio decidendi at all can be culled out from the judgments in this case in so far as the scope and ambit of the amendatory power of Parliament is concerned.
A debatable question would have arisen whether "basic and essential features" can be equated with "basic structure or framework" of the Constitution and if they cannot be, then can the narrower of these two formulations be taken to represent the common ratio.
But it is not necessary to examine this rather difficult and troublesome question, because l find that in Smt.
Indira Gandhi vs Raj Narain a Bench of five Judges of this Court accepted the majority view in Keshavanand Bharti 's case to be that the amending power conferred under Article 368, though wide in its sweep and reaching every provision of the Constitution, does not enable Parliament to alter the basic structure or framework 275 of the Constitution.
Since this is how the judgments in Keshavananda Bharti 's case have been read and a common ratio extracted by a 'Bench of five Judges of this Court, it is binding upon me and hence I must proceed to decide the questions arising in these cases in the light of the principle emerging from the majority decision that Article 368 does not confer power on Parliament to alter the basic structure or framework of the Constitution.
I may mention in the passing that the summary of the judgments given by nine out of the thirteen Judges after the delivery of the judgments also states the majority view to be that "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
" of course, in my view this summary signed by nine Judges has no legal effect at all and cannot be regarded as law declared by the Supreme Court under Article 141.
It is difficult to appreciate what jurisdiction or power these nine Judges had to give a summary setting out the legal effect of the eleven judgments delivered in the case.
Once the judgments were delivered, these nine Judges as also the remaining four became functus officio and thereafter they had no authority to cull out the ratio of the judgments or to state what, on a proper analysis of the judgments, was the view of the majority.
What was the law laid down was to be found in the judgments and that task would have to be performed by the Court before whom the question would arise as to what is the law laid down in Keshavananda Bharti 's case.
The Court would then hear the arguments and dissect the judgments as was done in Smt.
Indira Gandhi 's case (supra) and then decide as to what is the true ratio emerging from the judgments which is binding upon the Court as law laid down under article 141.
But here it seems that nine judges set out in the summary what according to them was the majority view without hearing any arguments.
This was a rather unusual exercise, though well intentioned.
But quite apart from the validity of this exercise embarked upon by the nine judges, it is a little difficult to understand how a proper and accurate summary could be prepared by these judges when there was not enough time, after the conclusion of the arguments, for an exchange of draft judgments amongst the Judges and many of them did not even have the benefit of knowing fully the views of others.
I may, therefore, make it clear that I am not relying on the statement of the majority view contained in The Summary given at the end of the judgments in Keshavananda Bharti 's case, but I am proceeding on the basis of the view taken in Smt.
Indira Gandhi 's case as regards the ratio of the majority decision in Keshavananda Bharti 's case.
I may also at this stage refer to an argument advanced before its on the basis of certain observations in the judgment of Khanna, J. 276 that he regarded fundamental rights as not forming part of the basic structure of the Constitution and therefore, according to him, they could be abrogated or takes away by Parliament by an amendment made under Article 368.
If this argument were correct, the majority holding in Keshavanda Bharti 's case would have to be taken to be that the fundamental rights could be abrogated or destroyed in exercise of the power of amendment.
because Ray, J., Palekar, J., Mathew, J., Beg, J., Dwivedi, J. and Chandrachud, J. took the view that the power of amendment being unlimited, it was competent to Parliament in exercise of this power to abrogate or emasculate the Fundamental Rights and adding the view of Khanna, J., there would be 7 Judges as against 6 in holding that the Fundamental Rights could be abrogated or taken away by Parliament by a constitutionally amendment.
But we do not think that this submission urged or behalf of the respondents is well founded.
It is undoubtedly true.
that there are certain observations in the judgment of Khanna, J. at the bottom of page 688 of the Report which seem into suggest that according to the learned Judge, the fundamental rights could be abridged or taken away by an amendment under Article 368.
For example, he says: "No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368.
The same approach in my opinion should hold good when we deal with amendment relating to Fundamental Rights contained in Part III of the Constitution.
It would be impermissible to differentiate between the scope and width of the power of amendment when it deals with Fundamental Rights and the scope and width of that power when it deals with provisions not concerned with Fundamental Rights.
" Then again at page 707 of the Report, the learned Judge rejects the argument that the core and essence of a Fundamental Right is immune from the amendatory process.
These observations might at first blush appear to support the view that, according to Khanna, J., the amendatory power under Article 368 was sufficiently wide to comprehend not only addition or alternation but also repeal of a Fundamental Right resulting in its total abrogation.
But if we look art the judgment of Khanna, J. as a whole, we do not think this view can be sustained.
It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 368.
The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part Ill of the Constitution.
but while so holding, he proceeded to make it clear that despite all this width the amendatory power was subject to an overriding limitation.
277 namely, that it could not be exercised so as to alter the basic structure or framework of the Constitution.
The learned Judge stated in so many words at page 688 of the Report that though "the power of amendment is plenary and would include within itself, the power to add, alter or repeal the various articles including those relating lo fundamental rights", it is "subject to the retention, or the basic structure or framework of the Constitution." The same reservation was repeated by the learned Judge in cl.
(vii) of the summary of his conclusions given at the end of his judgment.
It will, therefore, be seen that according to Khanna, J. the power of amendment can be exercised by Parliament so as even to abrogate or take away a fundamental right, so long as it does not alter the basic structure or framework of the Constitution.
But if the effect of abrogating or taking away such fundamental right is to alter or affect the basic structure or framework of the Constitution, the amendment would be void as being outside the amending power of Parliament.
It is precisely for this reason that the learned Judge proceeded to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution.
If the view of Khanna, J. where that no fundamental right forms part of the basic structure or framework of the Constitution and it can therefore be abrogated or taken away in exercise of the amendatory power under Article 368, it was totally unnecessary for the learned Judge to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution.
The very fact that Khanna, J. proceeded to consider this question shows beyond doubt that he did not hold that fundamental rights were not a part of the basic structure.
The only limited conclusion reached by him was that the right to property did not form part of the basic structure, but so far as the other fundamental rights were concerned, he left the question open.
Therefore, it was that he took pains to clarify in his judgment in Smt.
Indira Gandhi 's case (supra) that what he laid down in Keshavananda Bharati 's case was "that no Article of the Constitution is immune from the amendatory process because of the fact that it relates to fundamental right and is contained in Part III of the Constitution", and that he did not hold in That case that "fundamental rights are not a part of the basic structure of the Constitution".
Now if this be so, it is difficult to understand how he could hold the Constitution (Twenty ninth Amendment) Act, 1972 unconditionally valid.
Consistently with his view, he should have held that the Constitution (Twenty ninth Amendment) Act 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or 278 framework of the Constitution.
But merely because the learned Judge wrongly held the Constitution (Twenty ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution.
If the law was correctly laid down by him, it did not become incorrect by being wrongly applied.
It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what I have said above finds support from the comment made by Mr. Seervai in the 3rd Volume of his book on Constitutional Law, where the learned author says: "The conflict between Khanna, J. 's views on the amending power and on the unconditional validity of the Twenty Ninth Amendment is resolved by saying that he laid down the scope of the amending power correctly.
but misapplied that law in holding Article 31B and Schedule 9 unconditionally valid.
" l entirely agree with this perceptive remark of the learned author.
The true ratio emerging from the majority decision in Keshavananda Bharati 's case being that the Parliament cannot in the exercise of its amendatory power under Article 368 alter the basic structure or framework of the Constitution.
I must proceed to consider whether Article 31A, Article 31B read with 9th Schedule, Article 31C as it stood prior to its amendment and the amended Article 31C are violative of the basic structure or framework of the Constitution, for if they are, they would be unconstitutional and void.
Now what are the features or elements which constitute the basic structure of framework of the Constitution or which.
if damaged or destroyed, would rob the Constitution of its identity so that it would cease to be the existing Constitution but would become a different Constitution.
The majority decision in Keshavananda Bharati 's case no doubt evolved the doctrine of basic structure or framework but it did not lay down that any particular named features of the Constitution formed part of its basic structure or framework.
Sikri, C.J. mentioned supremacy of the Constitution, republican and democratic form of government.
secular character of the Constitution, separation of powers among the legislature executive and judiciary, federalism and dignity and freedom of the individual as essential features of the Constitution.
Shelat and Grover, JJ.
added to the list two other features; justice social, economic and political and unity and integrity of the nation.
Hegde and Mukherjee, JJ.
added sovereignty of India as a basic feature of the Constitution.
Reddy, J. thought that sovereign 279 democratic republic, parliamentary form of democracy and the three organs of the State formed the basic structure of the Constitution, Khanna, J. held that basic structure indicated the broad contours and outlines or the Constitution and since the right to property was a matter of detail, it was not a part of that structure.
But he appeared to be of the view that the democratic form of government.
the secular character of the State and judicial review formed part of the basic structure.
It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri.
C.J. thought to be the essential features of the Constitution and they were not intended to be exhaustive.
Shelat and Grover, JJ.
Hegde and Mukherjea JJ.
and Reddy, J. in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete.
This enumeration of the essential features by the six learned Judges had obviously no binding authority: first.
because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141.
Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country 's governance.
Vide the observations of Chandrachud, J. (as he then was) in Smt.
Indira Gandhi 's case at page 658 of the Report.
This exercise of determining whether certain particular features formed part of the basic structure of the Constitution had to be undertaken by this Court in Smt.
Indira Gandhi 's case (supra) which came up for consideration within a short period of four years after the delivery of the Judgments in Keshvananda Bharti 's case.
The constitutional amendment which was challenged in that case was the Constitution (Thirty ninth Amendment) Act.
1975, which introduced Article 329A and the argument was that clause (4) of this newly added article was constitutionally invalid on the ground that it violated the basic structure or framework of the Constitution.
This challenge was unanimously upheld by a Constitution Bench which consisted of 280 the Chief Justice and four senior most Judges of this Court.
It is not necessary for our purpose to analyse the judgments given by the five Judges in this case as they deal with various matters which are not relevant to the questions which arise before us.
But it may be pointed out that two of the learned Judges, namely, Khanna and Mathew, JJ.
held that democracy was an essential feature forming part of the basic structure and struck down clause (4) of Article 329A on the ground that it damaged the democratic structure of the Constitution.
Chandrachud, J. (as he then was) emphatically asserted that, in his opinion, there were four unamendable features which formed part of the basic structure, namely, "(i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to process, practise and propagate religion and (iv) The nation shall be governed by a government of laws, not of men.
" These, according to him, were "the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution." He then proceeded to hold that clause (4) of Article 329A was "an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our Constitution" and on that account declared it to be unconstitutional and void, Mathew, J. however, expressed his dissent from the view taken by Chandrachud, J. as regards the right of equality conferred by Article 14 being an essential feature of the Constitution and stated inter alia the following reason: "The majority in Bharati 's case did not hold that Article 14 pertains to the basic structure of the Constitution.
The Majority upheld the validity of the first part of Article 31C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would not destroy or damage the basic structure.
The only logical basis for supporting the validity of Article 31A, 31B and the first part of 31C is that article 14 is not a basic structure.
" I shall have occasion to discuss later the concept of equality under the Constitution and whether it forms part of the basic structure.
But, one position of a basic and fundamental nature I may make clear at this stage, and there I agree with Mathew, J., that whether a particular feature forms part of the basic structure has necessarily to be determined on the basis of the specific provisions of the Constitution.
To quote the words of Mathew, J. in Smt.
Indira Gandhi 's case (supra) "To be a basic structure it must be a terrestrial concept having its 281 habitat within the four corners of the Constitution.
" What Constitutes basic structure is not like "a twinkling star up above the Constitution." "It does not consist of any abstract ideals to be found outside the provisions of the Constitution.
The, Preamble no doubt enumerates great concepts ' embodying the ideological aspirations of the people but these concepts are particularised and their essential features delineated in the various provisions of the Constitution.
It is these specific provisions in the body of the Constitution which determine the type or democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which they aimed to realise, the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it.
These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution.
These specific provisions, either separately or in combination.
determine the content of the great concepts set out in the Preamble.
It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the Preamble. 'The specific provisions of the constitution are the stuff from which the basic structure has to be woven.
( ')" Now, in Wamanrao 's case the broad argument of Mr. Phadke on behalf of the petitioners founded on the doctrine of basic structure was, and this argument was supported by a large number of other counsel appearing in the allied petitions, that the fundamental rights enshrined in Articles 14 and 19 form part of the basic structure of the Constitution and therefore Article 31A, Article 31B read with 9th Schedule and the unamended Article 31C in so far as they exclude the applicability of Articles 14 and 19 to certain kinds of legislation emasculate those fundamental rights and thereby damage the basic structure of the Constitution and they must accordingly be held to be outside the amending power of Parliament and hence unconstitutional and void.
I have not made any reference here to Article 31 and treated the argument of Mr. Phadke as confined only to Articles 14 and 19, because, though Article 31 was very much in the Constitution when the arguments in Wamanrao 's case were heard, it has subsequently been deleted by the Constitution (Forty Fourth Amendment) Act, 1978 and reference to it has also been omitted in Articles 31A, 31B and 31C and we are therefore concerned with the constitutional validity of these Articles only in so far as they grant immunity against challenge on the ground of infraction of Articles 14 and 19.
Mr. Phadke on behalf of the petitioners also challenged 282 the constitutional validity of the Constitution (Fortieth Amendment).
1976 which included the amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 in the 9th Schedule.
On the ground that the Lok Sabha was not in existence at the date when it was enacted.
But obviously.
in view of clauses (4) and (5) introduced in Article 368 by section 55 , of the Constitution (Forty second Amendment) Act, 1976, it was not possible for Mr. Phadke on behalf of the petitioners to assail the constitutional validity of Article 31A, Article 31B read with the 9th Schedule as amended by the Constitution (Fortieth Amendment) Act.
1976 and the unamended Article 31C. since these two clauses of Article 368 barred challenge to the validity of a constitutional amendment on any ground whatsoever and declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition.
variation or repeal, any provision of the Constitution.
He therefore.
as a preliminary step in his argument challenged the constitutional validity of clauses (4) and (S) of Article 368 on the ground that these clauses damaged the basic structure of the Constitution and were outside the amending power of Parliament.
The argument of Mr. Palkhiwala on behalf of the petitioners in the Minerva Mills ' case was a little different.
He too attacked the vires of clauses (4) and (5) of Article 368 since they barred at the threshold any challenge against the constitutional validity of the amendment made in Article 31C, but so far as Article 31A, Article 31B and the unamended Article 31C were concerned, he did not dispute their validity and, as pointed out by me earlier, he conceded and in fact gave cogent reasons showing that they were constitutionally valid.
His only attack was against the validity of the amendment made in Article 31C by section 4 of the Constitution (Forty second Amendment Act. ]976 and he contended that this amendment, by making the Directive Principles supreme over the fundamental rights.
damaged or destroyed the basic structure of the Constitution.
He urged that the basic structure of the Constitution rests on the foundation that while the Directive Principles are the mandatory ends of government, those ends have to be achieved only through the permissible means set out in the Chapter on fundamental rights and this balance and harmony between the fundamental rights and the directive Principles was destroyed by the amendment in Article 31C by making the fundamental rights subservient to the Directive Principles and in consequence, the basic structure of the Constitution was emasculated.
A passionate plea was made by Mr. Palkhiwala with deep emotion and feeling that if Article 31C as amended was allowed to stand, it would be an open licence to the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian or totalitarian regime, since almost every legislation could be related, 283 directly or indirectly, to some Directive Principle and would thus be able to earn immunity from the challenge of Articles 14 and 19 and the fundamental rights enshrined in these two Articles would be rendered meaningless and futile and would become mere rope of sand.
Mr. Palkhiwala vehemently urged that Justice, liberty and equality were the three pillars of the Constitution and they were embodied in Articles 14 and 19 and therefore if the supremacy of the fundamental rights enshrined in these Articles was destroyed and they were made subservient to the directive Principles, it would result in the personality of the Constitution being changed beyond recognition and such a change in the personality would be outside the amending power of Parliament.
Mr. Palkhiwala likened the situation to a permanent state of emergency and pointed out by way of contrast that whereas under an emergency the people may be precluded from enforcing their fundamental rights under Articles 14 and 19 for the duration of the emergency, here the people were prevented from moving the court for enforcement of these fundamental rights for all time to come even without any emergency where a law was passed purporting to give effect to any of the Directive Principles.
The amendment in Article 31C was thus, according to Mr. Palkhiwala, outside the amending power of Parliament and was liable to be struck down as unconstitutional and void.
Logically I must first consider the challenge against the constitutional validity of clauses (4) and (5) of article 368, because it is only if they can be put out of the way that Mr. Phadke and Mr. Palkhiwala can proceed further with their respective challenges against the validity of the other constitutional provisions impugned by them.
Both these clauses were inserted in Article 368 by section 55 of the Constitution (Forty second Amendment), Act, 1976 with a view to overcoming the effect of the majority decision in Keshavananda Bharati 's case.
Clause (4) enacted that no amendment of the Constitution "made or purporting to have been made under this Article [whether before or after the commencement of section 55 of the Constitution (Forty second Amendment) Act, 1976] shall be called in question in any court on any ground" while clause (5), which begins with the words "For the removal of doubts", declared that "there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article.
" The question is whether these two clauses transgress the limitations on the amending power of Parliament and are therefore void.
I will first take up for consideration clause (4) which seeks to throw a cloak of protection on an amendment made or purporting to have been made in the 284 Constitution and makes it unchallengeable on any ground.
It is rather curious in its wording and betrays lack of proper care and attention in drafting.
It protects every amendment made or purporting to have been made "whether before or after the commencement of section S of the Constitution (Forty second Amendment Act.
" But would an amendment made by any other section of the Constitution (Forty second Amendment) Act, 1976 such as section (4).
which would be neither before nor after the commencement of section 55, but simultaneous with it.
be covered by this protective provision? This is purely a problem of verbal semantics which arises because of slovenliness in drafting that is becoming rather common these days and I need not dwell on it, for there are more important questions which arise out of the challenge to the constitutional validity of clause (4) and they require serious consideration.
I will proceed on the basis that the protection sought to be given by clause (4) extends to every amendment whatsoever and that the parenthetical words "whether before or after the commencement of section SS of the Constitution (Forty second Amendment) Act, 1976" were introduced merely by way of abundant caution with a view to indicating that this protection was intended to cover even amendments made or purporting to have been made before the enactment of the constitution (Forty second Amendment) Act. 1976.
Now even a cursory look at the language of clause (4) is sufficient to demonstrate that this is a case of zeal overrunning discretion.
Clause (4) provides that no amendment to the Constitution made or purporting to have been made under Article 368 shall be called in question in any court on any ground.
The words 'on any ground ' are of the widest amplitude and they would obviously cover even a ground that the procedure prescribed in clause (2) and its proviso has not been followed.
The result is that even if an amendment is purported to have been made without complying with the procedure prescribed in sub clause (2) including its proviso, and is therefore unconstitutional.
it would still be immune from challenge.
It was undisputed common ground both at the Bar and on the Bench, in Keshavananda Bharati 's case that any amendment of the Constitution which did not conform to the procedure prescribed by sub clause (2) and its proviso was no amendment at all and a court would declare it invalid.
Thus if an amendment were passed by a simple majority in the House of the People and the Council of States and the President assented to the amendment, it would in law be no amendment at all because the requirement of clause (2) is that it should be passed by a majority of each of the two Houses separately and by not less than two thirds of the members present and voting.
But if clause (4) were valid, it would become difficult to challenge the validity of such an amendment and it would prevail though made in defiance of a 285 mandatory constitutional requirement.
Clause (2) including its proviso A would be rendered completely superfluous and meaningless and its prescription would become merely a paper requirement.
Moreover, apart from nullifying the requirement of clause (2) and its proviso, clause (4) has also the effect of rendering an amendment immune from challenge even if it damages or destroys the basic structure of the Constitution and is therefore outside the amending power of Parliament.
So long as clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Keshavananda Bharati 's case, would be unchallengeable in a court of law.
The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would from a practical point of view, become non existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged contrary to the decision of this Court in Keshavananda Bharati 's case.
This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers.
I shall immediately proceed to state the reasons why I think that these two features form part of the basic structure of the Constitution.
It is clear from the majority decision in Keshavananda Bharati 's case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers.
The Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution.
The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution.
Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.
Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution.
It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred.
Parliament cannot in exercise of this power so 286 amend the Constitution as to alter its basic structure or to change its identity.
Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity.
It will therefore be seen that the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed.
It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament.
It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution.
derives its power from the Constitution and has to act within the limits of such power.
But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded.
Now there are three main departments of the State amongst which the powers of Government are divided; the Executive, the Legislature and the Judiciary.
Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable.
The reason for this broad separation of powers is that "the concentration of powers in any one organ may" t(t quote the words of Chandrachud, J. (as he then was) in Smt.
Indira Gandhi 's case (supra) "by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which were pledged.
" Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers.
Such a question obviously cannot be left to the executive to decide and for two very good reasons.
First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional 287 and legal protection afforded to the citizen would become illusory.
A if it were left to the executive to determine the legality of its own action.
So also if the legislature makes a law and a dispute arises whether in making the law the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be, left to the determination of the legislature.
The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature.
It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution.
This power of judicial review is conferred on the judiciary by Articles 32 anc! 226 of the Constitution.
Speaking about draft Article 25, corresponding to present Article 32 of the Constitution, Dr. Ambedkar, the principal architect of our Constitution, said in the Constituent Assembly on 9th December, 1948: "If I was asked to name any particular article in this Constitution as the most important an article without which this Constitution would be a nullity I could not refer to any other article except this one.
It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance".
(CAD debates, Vol.
VII, p, 953) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution.
The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.
It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations.
That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law".
The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality.
I am of the view that if there is one feature of our 288 Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution.
Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament.
But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.
If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub version of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.
So also if a. constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure.
and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would.
in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution.
The conclusion must therefore inevitably follow that clause (4) of Article 368 is unconstitutional.
and void as damaging the basic structure of the Constitution.
That takes us to clause (S) of Article 368.
This clause opens with the words "For the removal of doubts" and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368.
It is difficult to appreciate the.
meaning of the opening words "For the removal of doubts" because the majority decision in Keshavananda Bharati 's case clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the mandatory power of Parliament and in Smt.
Indira Gandhi 's case all the Judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329A(4) was to be judged.
Therefore, after the decisions in Keshavananda Bharati 's case and Smt.
Indira Gandhi 's case, there was no doubt at all that the amendatory.
power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution 289 and clause (5) could not remove the doubt which did not exist.
What A clause (S) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one.
This was clearly and indubitably a futile exercise on the part of Parliament.
I fail to see how Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure.
That would clearly be in excess of the limited amending power possessed by Parliament.
The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power.
If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment.
It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power.
Clause (S) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside the amending power of Parliament.
There is also another ground on which the validity of this clause can be successfully assailed.
This clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure would in the circumstances hold clause (5) of Article 368 to be unconstitutional and void.
With clauses (4) and (S) of Article 368 out of the way, I must now proceed to examine the challenge against the constitutional validity of Article 31A, Article 31B read with the 9th Schedule and the unamended Article 31C. So far as Article 31A is concerned, Mr. Phadke appearing on behalf of the petitioners contended that, tested by the doctrine of basic structure, article 31A was unconstitutional and void, since it had the effect of abrogating Articles 14 and 19 in reference to legislation falling within the categories specified in the various clauses of that Article.
He argued that the Fundamental Rights enshrined in Articles 14 and 19 were part of the basic structure of the Constitution and any constitutional amendment which had the effect of abrogating or damaging these Fundamental Rights was outside the amendatory power of Parliament.
While considering this 290 argument, I may make it clear that I am concerned here only with constitutional validity of clause (a) of Article 31A since the protection of Article 31A has been claimed in respect of Maharashtra Land Ceiling Acts only under clause (a) of that Article and I need not enter upon a discussion of the constitutional validity of clauses (b) to (e) of Article 31A.
I do not think that the argument of Mr. Phadke challenging the constitutional validity of clause (a) of Article 31A is well founded.
I shall have occasion to point out in a later part of this judgment that where any law is enacted for giving effect to a Directive Principle with a view to furthering the constitutional goal of social and economic justice, there would be no violation of the basic structure, even if it infringes formal equality before the law under article 14 or any Fundamental Right under Article 19.
Here clause (a) of Article 31A protects a law of agrarian reform which is clearly.
in the context of the socio economic conditions prevailing in India, a basic requirement of social and economic justice and is covered by the Directive Principles set out in clauses (b) and (c) of Article 39 and it is difficult to see how it can possibly be regarded 1) as violating the basic structure of the Constitution.
On the contrary, agrarian reform leading to social and economic justice to the rural population is an objective which strengthens the basic structure of the Constitution.
Clause (a) of Article 31A must therefore be held to be constitutionally valid even on the application of the basic structure test.
But, apart from this reasoning on principle which in our opinion clearly sustains the constitutional validity of clause (a) of Article 31A. we think that even on the basis of the doctrine of stare decisions, the whole of Article 31A must be upheld as constitutionally valid.
The question as to the constitutional validity of Article 31 A first came up for consideration before this Court in Shankari Prasad vs Union of India.
There was a direct challenge levelled against the constitutionality of Article 31A in this case on various grounds and this challenge was rejected by a Constitution Bench of this Court.
The principal ground on which the challenge was based was that if a constitutional amendment takes away or abridges any of the Fundamental Rights conferred by Part III of the Constitution it would fall within the prohibition of Article 13(2) and would therefore be void.
Patanjali Shastri, J., speaking on behalf of the Court, did not accept this contention and taking the view that in the context of Article 13, 'law ' must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in exercise of constituent power, be held that 291 Article 13(2) does not affect constitutional amendments.
This view in regard to the interpretation of the word 'law ' in Article 13(2) has now been affirmed by this Court sitting as a full Court of 13 Judges in Keshavananda Bharati 's case and it is no longer possible to argue the contrary proposition.
It is true that in, this case, the constitutional validity of Article 31A was not assailed on the ground of in fraction of the basic feature since that was a doctrine which came to be evolved only in Keshavananda Bharati 's case, but the fact remains that whatever be the arguments advanced or omitted to be advanced.
Article 31A was held to be constitutionally valid by this Court.
Nearly 13 years after this decision was given in Shankari Prasad 's case, a strong plea was made before this Court in Sajjan Singh vs State of Rajasthan that Shankari Prasad 's case should be reconsidered, but after a detailed discussion of the various arguments involved in the case, the Constitution Bench of this Court expressed concurrence with the view expressed in Shankari Prasad 's case and in the result, upheld the constitutional validity of Article 31A, though the question which arose for consideration was a little different and did not directly involve the constitutional validity of Article 31A.
Thereafter, came the famous decision of this Court in Golak Nath 's case where a full Court of 11 Judges.
while holding that the Constitution (First Amendment Act exceeded the constituent power or Parliament, still categorically declared on, the basis of the doctrine prospective overruling that the said amendment, and a few other like amendments subsequently made, should not be disturbed and must be held to be valid.
The result was that even the decision in Golak Nath 's case accepted the constitutional validity of Article 31A.
The view taken in Golak Nath 's case as regards the amending power of Parliament was reversed in Keshavananda Bharati 's case where the entire question as to the nature and extent of the constituent power of Parliament to amend the Constitution was discussed in all its dimensions and aspects uninhibited by any previous decisions, but the only constitutional amendments which were directly challenged in that case were the Twenty fourth and Twenty fifth and Twenty ninth Amendments.
The constitutional validity of article 31A was not put in issue in Keshavananda Bharati 's case and the learned Judges who decided that case were not called upon to pronounce on it and it cannot therefore be said that this Court uphold the vires of Article 31A in that Case.
It is no doubt true that Khanna, J. held Article 31A to be valid on the principle of stare decisis.
but that was only for the purpose of upholding the validity of Article 31C. 292 because he took the view that Article 31C was merely an extension of the principle accepted in Article 31A and "the ground which sustained the validity of clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C".
So far as the other learned Judges were concerned, they did not express any view specifically on the constitutional validity of Article 31A, since that was not in issue before them.
Ray, J., Palekar, J., Mathew, J., Beg, J., Dwiwedi, J. and Chandrachud, J., held Article 31C to be valid and if that view be correct, Article 31A must fortiorari be held to be valid But it must be said that there is no decision of the Court in Keshavananda Bharati 's case holding article 31A as constitutionally valid, and logically, therefore, it should be open to the petitioners in the present case to contend that.
tested by the basic structure doctrine, Article 31A is constitutional.
We have already pointed out that on merits this argument has no substance and even on an application of the basic structure doctrine.
Article 31A cannot be condemned as invalid.
But in any event, I do not think that it would be proper to reopen the question of constitutional validity of Article 31A which has already been decided and silenced by the decisions of this Court in Shankari Prasad 's case, Sajjan Singh 's case and Golak Nath 's case.
Now for over 28 years, since the decision in Shankari Prasad 's case Article 31A has been recognised as valid and on this view, laws of several States relating to agrarian reform have been held to be valid and as pointed out by Khanna, J. in Keshavananda Bharati 's case "millions of acres of land have changed hands and millions of new titles in agricultural lands have been created".
If the question of validity of Article 31A were reopened and the earlier decisions upholding its validity were reconsidered in the light of the basic structure doctrine, these various agrarian reform laws which have brought about a near socio economic revolution in the agrarian, sector might be exposed .
to jeopardy and that might put the clock back by settling at naught all changes that have been brought about in agrarian relationship during these years and create chaos in the lives of millions of people who have benefitted by these laws.
It is no doubt true that this Court has power to review its earlier decisions or even depart from them and the doctrine of stare decisis cannot be permitted to perpetuate erroneous decisions of this Court to the detriment of the general welfare of the public.
There is indeed a school of thought which believes with Cardozo that "the precedents have turned upon us and they are engulfing and annihilating us, engulfing and annihilating the very devotees that worshipped at their shrine" and that the Court should not be troubled unduly if it has to break away from precedents in order to modify old rules and if need be to fashion new ones to meet the challenges and problems thrown upon 293 by a dynamic society.
But at the same time, it must be borne in A mind that certainty and continuity are essential ingredients of rule of law.
Certainty in applicability of law would be considerably eroded and suffer a serious set back if the highest court in the land were readily to overrule the view expressed by it in earlier decisions even though that view has held the field for a number of years.
It is obvious that when constitutional problems are brought before this Court for its decision, complex and difficult questions are bound to arise and since the decision on many of such questions may depend upon choice between competing values, two views.
may be possible depending upon the value judgment or the choice of values made by the individual Judge.
Therefore, if one view has been taken by the Court after mature deliberation, the fact that another Bench is inclined to take another view would not justify the Court in reconsidering the earlier decision and overruling it.
The law laid down by this Court is binding on all Courts in the country and numerous cases all over the country are decided in accordance with the view taken by this Court.
Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the decision given by this Court.
It would create uncertainty, instability and confusion if the law propounded by this Court on the faith of which numerous cases have been decided and many transactions have taken place is held to be not the correct law after a number of years.
The doctrine of stare decisis has evolved from the maxim "stare decisis et non quita movere" meaning "adhere to the decision and do not unsettle things which are established", and it is a useful doctrine intended to bring about certainty and uniformity in the law.
But when I say this, let me make it clear that I do not regard the doctrine of stare decisis as a rigid and inevitable doctrine which must be applied at the cost of justice.
There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity.
"Stare decisis" as pointed out by Brandeis "is always a desideratum, even in these constitutional cases, but in them, it is never a command".
The Court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons.
The power of review must be exercised with due care and caution and only for advancing the public well being and not 294 merely because it may appear that the previous decision was based on an erroneous view of the law.
It is only where the perpetuation of the earlier decision would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the Constitution makers or to use the words of Krishna Iyer, J. in Ambika Prasad Misra vs State of U.P. & Ors. "where national crisis of great momenta to the life, liberty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake up" that the Court would be justified in reconsidering its earlier decision and departing from it.
It is fundamental that the nation 's Constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues.
The Court should not indulge in judicial stabilisation of State action and a view which has been accepted for a long period of time in a series of decisions and on the faith of which millions of people have acted and a large number of transactions have been effected, should not be disturbed.
Let us not forget the words of Justice Roberts of the United States Supreme Court words which are equally applicable to the decision making process in this Court: "The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same days as a restricted rail road ticket good for this day and train only.
It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of out institutions.
" Here the view that Article 31A is constitutionally valid has been taken in atleast three decisions of this Court, namely, Shankari Prasad 's case, Sajjan Singh 's case and Golak Nath 's case and it has held the field for over 28 years and on the faith of its correctness, millions of acres of agricultural land have changed hands and new agrarian relations have come into being, transforming the entire rural economy.
Even though the constitutional validity of Article 31A was not tested in these decisions by reference to the basic structure doctrine, I do not think the Court would be justified in allowing the earlier decisions to be 295 reconsidered and the question of constitutional validity of Article 31A A re opened.
These decisions have given a quietus to the constitutional challenge against the validity of Article 31A and this quietus should not now be allowed to be disturbed.
I may point that this view which I am taking is supported by the decision of this Court in Ambika Prasad Misra vs State of U.P. and ors.
(supra).
I may now turn to consider the constitutional challenge against the validity of Article 31B read with the 9th Schedule.
This Article was introduced in the Constitution alongwith Article 31A by the Constitution (First Amendment) Act, 1951.
Article 31A as originally introduced was confined only to legislation for acquisition of an estate or extinguishment or modification of any rights in an estate and it saved such legislation from attack under Articles 14, 19 and 31.
Now once legislation falling within this category was protected by article 31A, it was not necessary to enact another saving provision in regard to the same kind of legislation.
But, presumably, having regard to the fact that the constitutional law was still in the stage of evolution and it was not clear whether a law, invalid when enacted, could be revived without being re enacted.
Parliament thought that Article 31A, even if retrospectively enacted.
may not be sufficient to ensure the validity of a legislation which was already declared void by the courts as in Kameshwar Singh 's case, and therefore considered it advisable to have a further provision in Article 31B to specifically by pass judgments striking down such legislation.
That seems to be the reason why Article 31B was enacted and statutes falling within Article 31A were included in the 9th Schedule.
Article 31B was conceived together with Article 31A as part of the same design adopted to give protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an estate.
The 9th Schedule of l? Article 31B was not intended to include laws other than those covered by Article 31A.
That becomes clear from the speeches of the Law Minister and the Prime Minister during the discussion on the Constitution (First Amendment) Act, 1951.
Dr. Ambedkar admitted of the 9th Schedule that prima facie "it is an unusual procedure" but he went on to add that "all the laws that have been saved by this Schedule are laws that fall under Article 31." Jawaharlal Nehru also told Parliament: "It is not with any great satisfaction or pleasure that we have produced this long Schedule.
We do not wish to add to it for two reasons.
One is that the Schedule consists of a particular type of legislation, generally speaking, and another type should not come in. " (emphasis supplied).
Articles 31A and 296 31B were thus intended to serve the same purpose of protecting legislation falling within a certain category.
It was a double barelled protection which was intended to be provided to this category of legislation, since it was designed to carry out agrarian reform which was so essential for bringing about a revolution in the socio economic structure of the country.
This was followed by the Constitution (Fourth Amendment) Act, 1956 by which the categories of legislation covered by Article 31A were sought to be expanded by adding certain new clauses after clause (a).
Originally, in the draft bill in addition to these clauses, there was one more clause, namely, clause (d) which sought to give protection to a law providing for the acquisition or requisitioning of any immovable property for the rehabilitation of displaced persons and, as a corollary to the proposed amendment of article 31A, it was proposed in Clause (S) of the Bill to add in the 9th Schedule two more State Acts and four Central Acts which fell within the scope of clauses (d) and (f) of the revised Article 31A. Vide cl.
(4) of the Statement of objects and Reasons The two State Acts which were proposed to be included in the 9th Schedule were the Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act.
1950 and the United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948.
The West Bengal Land Development and Planning Act, 1948, which was struck down by this Court in State of West Bengal vs Bela Banerjee, and the invalidity of which really started the entire exercise of the Constitution (Fourth Amendment) Act.
1955, was however, left out of the 9th Schedule in the draft Bill because it included certain purposes of acquisition which fell outside the proposed clause (d) of Article 31A.
But, while the Constitution (Fourth Amendment) Act, 1955 was being debated, an ordinance was issued by the Governor of West Bengal omitting with retrospective effect all the items in the definition of "public purpose" except the settlement of displaced persons who had migrated into the State of West Bengal, with the result that the West Bengal Act as amended by the ordinance came within the category of legislation specified in the proposed clause (d) of article 31A.
In view of this amendment, the West Bengal Act was included in the 9th Schedule by way of amendment of the draft Bill.
It is significant to note that similar Orissa Statute which provided for acquisition of land for purposes going beyond the proposed clause (d) of Article 31A and which was not amended in the same manner as the West Bengal Act, was not included in the 9th Schedule.
A Central Act, namely, the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 fell within the proposed clause (d) of article 31A and it was therefore included in the 297 9th Schedule in the draft Bill.
The link between Articles 31A and A 31B was thus maintained in the draft Bill, but when the draft Bill went before the Joint Committee.
the proposed clause (d) of Article 31A was deleted and the Bihar, U.P. and West Bengal Acts as also the above mentioned Central Act which were originally intended to be within the scope and ambit of Article 31A, became unrelated to that Article.
Even so, barring these four Acts, all the other statutes included in the 9th Schedule fell within one or the other clause of the amended article 31A.
Subsequent to this amendment.
several other statutes dealing with agrarian reform were included in the 9th Schedule by the Constitution (Seventeenth Amendment) Act, 1964 and no complaint can be made in regard to such addition, because all these statutes partook of the character of agrarian reform legislation and were covered by clause (a) Of Article 31A in view of the extended definition of "estate" substituted by the same amending Act.
The validity of the Constitution (Seventeenth Amendment) Act, 1964 was challenged before this Court in Golak Nath 's case (supra) and though the Court by a majority of six against five took the view that Parliament has no power to amend any fundamental right, it held that this decision would not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964 and other earlier amendments to the Constitution and thus recognised the validity of the various constitutional amendments which included statutes in the 9th Schedule from time to time upto that date.
Then came the Constitution (Twenty Ninth Amendment) Act, 1972 by which two Kerala agrarian reform statutes were included in the 9th Schedule.
The validity of the Twenty Ninth Amendment Act was challenged in Keshavananda Bharati 's case, but by a majority consisting of Khanna.
J. and the six learned Judges led by Ray.
C.J., it was held to be valid.
Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Shankari Prasad 's case and Sajjan Singh 's case and were accepted as valid in Golak Nath 's case and the Twenty Ninth Amendment Act was also held valid in Keshavananda Bharati 's case.
though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re opening the question of validity of these constitutional amendments and hence we hold them to be valid.
But, all constitutional amendments made after the decision in Keshavananda Bharati 's case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation 298 on its amending power.
It may be pointed out that quite a large number of statutes have been included in the 9th Schedule by the subsequent constitutional amendments and strangely enough, we find for the first time that statutes have been included which have no connection at all with Article 31A or 31C and this device of Article 3113 which was originally adopted only as a means of giving a more definite and assured protection to legislation already protected under Article 31A, has been utilised for the totally different purpose of excluding the applicability of Fundamental Rights to all kinds of statute which have nothing to do with agrarian reform or Directive Principles.
This is rather a disturbing phenomenon.
Now out of the statutes which are or may in future be included in the 9th Schedule by subsequent constitutional amendments.
if there are any which fall within a category covered by Article 31A or 31C, they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion in the 9th Schedule J ' is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other fundamental] rights.
This question would primarily arise only in regard to statutes not covered by Article 31A or 31C and in case of such statutes the Court would have to consider whether the constitutional amendments including such statutes in the 9th Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights.
It is possible that in a given case, even an abridgement of a fundamental right may involve violation of the basic structure.
It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution.
Take for example, right to life and personal liberty enshrined in Article 21.
This stands on an altogether different footing from other fundamental rights.
I do not wish to express any definite opinion, but I may point out that if this fundamental right is violated by any legislation.
it may be difficult to sustain a constitutional amendment which seeks to protect such legislation against challenge under article 21.
So also where a legislation which has nothing to do with agrarian reform or any Directive Principles infringes the equality clause contained in Article 14 and such legislation is sought to be protected by a constitutional amendment by including it in the 9th Schedule, it may be possible to contend that such constitutional amendment is violative of the egalitarian principle which forms par of the basic structure.
But these are only examples which I am giving by way of illustration.
for other situations may arise where infraction.
299 of a fundamental right by a statute, if sought to be constitutionally A protected, might affect the basic structure of the Constitution.
In every case, therefore, where a constitutional amendment includes a statute or statutes in the 9th Schedule, its constitutional validity would have to be considered by reference to the basic structure doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right.
I will now turn to consider the challenge against the constitutional validity of the unamended article 31C.
This article was introduced in the Constitution by the Constitution (Twenty fifth Amendment) Act, 1971 and it provided in its first part that "Notwithstanding anything contained in article 13, no law giving effect to the policy of the state towards securing the principles specified in Cl.
(b) or (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14, article 19 or article 31".
It is not necessary to reproduce here the second part of the unamended article 31C because that was declared unconstitutional by the majority decision in Keshavananda Bharti 's case and must consequently be treated as non est.
The argument of Mr. Phadke against the constitutional validity of the unamended article 31C was the same as in case of article 31A, namely, that it emasculated the fundamental rights in Articles 14 and 19 and was, therefore, destructive of the basic structure of the Constitution.
I shall presently examine this argument on merits and demonstrate that it is unsustainable, but before I do so, I may point out at the outset that it is wholly unnecessary to embark upon a discussion of the merits of this argument, because the first part of the unamended article 31C was held to be constitutionally valid by the majority decision in Keshavananda Bharti 's case and that decision being binding upon as, it is not open to Mr. Phadke to reagitate this question.
Out of the thirteen Judges who sat on the Bench in Keshavananda Bharti 's case, Ray, J., as he then was, Palekar, J., Dwivedi, J., Khanna, J., Mathew.
J., Beg, J., and Chandrachud, J., (as he then was took the view that the first part of the unamended article 31C was constitutionally valid, because the amending power of parliament was absolute and unlimited.
Khanna, J. did not subscribe to the theory that Parliament had an absolute and unlimited right to amend the Constitution and his view was that the power of amendment conferred on Parliament was a limited power restricting Parliament from so amending the Constitution as to alter its basic structure, but even on the basis of this limited power, he upheld the constitutional validity of the first part of the unamended Article 31C. There were thus seven 300 out of thirteen Judges who held that the first part of the unamended article 31C was constitutionally valid, though the reasons which prevailed with Khanna, J. for taking this view were different from those which prevailed with the other six learned Judges.
The issue as regards the constitutional validity of the first part of the unamended article 31C which directly arose for consideration before the Court was accordingly answered in favour of the Government and the law laid down by the majority decision was that the first part of the unamended article 31C was constitutional and valid and this declaration of the law must be regarded as binding on the court in the present writ petitions.
Mr. Phadke, however, disputed the correctness of this proposition and contended that what was binding on the court was merely the ratio decidendi of Keshavananda Bharati 's case and not the conclusion that the first part of the unamended Article 31C was valid.
The ratio decidendi of Keshavananda Bharti 's case, according to Mr. Phadke, was that the amendatory power of Parliament is limited and.
it cannot be exercised so as to alter the basic structure of the Constitution and it was this ratio decidendi which was binding upon us and which we must apply for the purpose of determining whether the first part of the unamended Article 31C was constitutionally valid.
It is no doubt true, conceded Mr. Phadke that the six learned Judges headed by Ray, J. (as he then was) held the first part of the unamended Article 31C to be constitutionally valid but that was on the basis that Parliament had absolute and unrestricted power to amend the Constitution, which basis was, according to the majority decision, incorrect.
lt was impossible to say, argued Mr. Phadke, what would have been the decision of the six learned Judges headed by Ray, J. (as he then was if they had applied the correct test and examined the constitutional validity of the first part of the unamended Article 31C by reference to the yardstick of the limited power of amendment, and their conclusion upholding the validity of the first part of the unamended Article 31C by applying the wrong test could not therefore be said to be binding .
On the Court in the present writ petitions.
This argument of Mr. Phadke is, in my opinion, not well founded and cannot be accepted.
I agree with Mr. Phadke that the ratio decidendi of Keshavananda Bharati 's case was that the amending power of Parliament is limited and, Parliament cannot in exercise of the power of amendment alter the basic structure of the Constitution and the validity of every constitutional amendment has therefore to be judged by applying the test whether or not it alters the basic structure of the constitution and this test was not applied by the six learned Judges headed by Ray, J. (as he 301 then was), but there my agreement ends and I cannot accept further argument of Mr. Phadke that for this reason, the conclusion reached by the six learned Judges and Khanna, J., as regards the constitutionality of the first part of the unamended Article 31C has no validity.
The issue before the court in Keshavananda Bharti 's case was whether the first part of the unamended Article 31C was constitutionally valid and this issue was answered in favour of the Government by a majority of seven against six.
It is not material as to what were the reasons which weighed with each one of the Judges who upheld the validity of the first part of the unamended Article 31C. The reasons for reaching this conclusion would certainly have a bearing on the determination of the ratio decidendi of the case and the ratio decidendi would certainly be important for the decision of future cases where the validity of some other constitutional amendment may come to be challenged, but so far as the question of validity of the first part of the unamended Article 31C is concerned, it was in so many terms determined by the majority decision in Keshavananda Bharati 's case and that decision must be held binding upon us.
Mr. Phadke cannot therefore be allowed to reopen this question and I must refuse to entertain the challenge against the Constitutional validity of the unamended article 31C preferred by Mr. Phadke.
But even if it were open to Mr. Phadke to dispute the decision in Keshavananda Bharti 's case and to raise a challenge against the constitutional validity of the first part of the unamended Article 31C, I do not think the challenge can succeed.
What the first pari of the unamended Article 31C does is merely to abridge the Fundamental Rights in Articles 14 and 19 by excluding their applicability to legislation giving effect to the policy towards securing the principles specified in clauses (b) and (c) of Article 39.
The first part of the unamended Article 31C is basically of the same genre as Article 31A with only this difference that whereas Article 31A protects laws relating to certain subjects, the first part of the unamended Article 31C deals with laws having certain objectives.
There is no qualitative difference between Article 31A and the first part of the unamended Article 31C in so far as the exclusion of Articles 14 and 19 is concerned.
The fact that the provisions to the first part of the unamended Article 31C are more comprehensive and have greater width compared to those of Article 31A does not make any difference in principle.
If Article 31A is constitutionally valid, it is indeed difficult to see how the first part of the unamended Article 31C can be held to be unconstitutional.
It may be pointed out that the first part of the unamended Article 31C in fact stands on a more secure footing because it accords protection against infraction of Articles 14 and 19 to legislation enacted for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39.
302 The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws.
lt is for the purpose of giving effect to the Directive Principles set out in clause (b) and (c) of article 39 in discharge of the constitutional obligation laid upon the State under Article 37 that Fundamental Rights, in Articles 14 and 19 are allowed to be abridged and I fail to see how a constitutional amendment making such a provision can be condemned as violative of the basic structure of the Constitution.
Therefore even on first principle, I would be inclined to hold that the first part of the unamended Article 31C is constitutionally valid.
That takes us to the next ground of challenge against the constitutional validity of the Constitution (Fortieth Amendment) Act, 1956 in so far as it included the amending Acts 21 of 1975, 47 of 1975 and 2 of 1976 in the 9th Schedule and the Constitution (Forty second Amendment) Act, 1976 in so far as it introduced cls.
(4) and (5) in article 368.
The petitioners contended under this head of challenge that the Constitution (Fortieth Amendment) Act, 1976 was passed by the Lok Sabha on 2nd April, 1976 and the Constitution Forty Second Amendment) Act, 1976 sometime in November, 1976, but on these dates the Lok Sabha was not validly in existence because it automatically dissolved on 18th March, 1976 on the expiration of its term of 5 years.
It is no doubt true that the House of People (Extension of Duration) Act, 1976 was enacted by Parliament under the Proviso to article 83(2) extending the duration of the Lok Sabha for a period of one year, but the argument of the petitioners was that this Act was ultra vires and void, because the duration of, the Lok Sabha could be extended under the proviso to article 83(2) only during the operation of a Proclamation of an Emergency and, in the submission of the petitioners, there was no Proclamation of Emergency in operation at the time when the House of People (Extension of Duration) Act, 1976 was passed.
It may be conceded straight away that, strictly speaking, it is superfluous and unnecessary to consider this argument because, even if the Constitution (Fortieth Amendment) Act, 1976 is unconstitutional and void and the Amending Acts 21 of 1975, 47 of 1975 and 2 of 1976 have not been validly included in the 9th Schedule so as to earn the protection of article 318, they are still as pointed out earlier, saved from invalidation by article 31A and so far as the Constitution Forty second Amendment) Act, 1976 is concerned, I have already held that it is outside the constituent power of Parliament in so far as it seeks to include clauses (4) and (5) in article 368.
But since a 303 long argument was addressed to us seriously pressing this ground of challenge, I do not think I would be unjustified in dealing briefly with it.
It is clear on a plain natural construction of its language that under the Proviso to article 83(2), the duration of the Lok Sabha could be extended only during the operation of a Proclamation of Emergency and if, therefore, no Proclamation of Emergency was in operation at the relevant time, the House of People (Extension of Duration) Act, 1976 would be outside the competence of Parliament under the Proviso to article 83(2).
The question which thus requires to be considered is whether there was a Proclamation of Emergency was in operation at the date when the House of People (Extension of Duration Act, 1976 was enacted.
The learned Solicitor General appearing on behalf of the Union of India contended that not one but two Proclamations of Emergency were in operation at the material date.
One Proclamation issued by the President on 3rd December, 1971 and the other Proclamation issued on 25th June, 1976.
By the first Proclamation, the President in exercise of the powers conferred under cl.
(1) of article 352 declared that a grave emergency existed whereby the security of India was threatened by external aggression.
This Proclamation was approved by Resolutions of both the Houses of Parliament of 4th December, 1971 as contemplated under cl. 2(c) of article 352 and it continued in operation until 21st March, 1977 when it was revoked by a Proclamation issued by the President under clause 2(a) of article 352.
The first Proclamation of Emergency was thus in operation at the date when the House of People Extension of Duration) Act, 1976 was enacted by Parliament.
The second Proclamation of Emergency was issued by the President under article 352 cl.
(1) and by this Proclamation, the President declared that a grave emergency existed whereby the security of India was threatened by internal disturbance.
This Proclamation was also in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976 since it was not revoked by another Proclamation issued under cl. 2(a) of article 35 until 21st March, 1977.
The argument of the petitioners however, was that, though the first Proclamation of Emergency was validly issued by the President on account of external aggression committed by Pakistan against India, the circumstances changed soon thereafter and the emergency which justified the issue of the Proclamation ceased to exist and consequently the continuance of the Proclamation was malafide and colourable and hence the Proclamation, though not revoked until 21st March, 1972, ceased in law to continue in force and could not be said to be in operation at the material date, namely, 16th February, 1976.
So far as the second Proclamation of Emergency is concerned, the petitioners contended that it was illegal and void on 304 three grounds, namely; whilst the first Proclamation of Emergency was in operation, it was not competent to the President under article 352.
clause (1) to issue another Proclamation of Emergency; (2) the second Proclamation of Emergency was issued by the President on the advice of the Prime Minister and since this advice was given by the Prime Minister without consulting the Council of Ministers, which alone was competent under the Government of India (Transaction of Business Rules, 1961 to deal with the question of issue of a Proclamation of Emergency, the second Proclamation of Emergency could not be said to have been validly issued by the President; and (3) there was not threat to the security of India on account of internal disturbance, which could justify the issue of a Proclamation of Emergency and the second Proclamation was issued, not for a legitimate purpose sanctioned by clause (1) of article 352 but with a view to perpetuating the Prime Minister in power and it was clearly malafide and for collateral purpose and hence outside the power of the President under article 352 cl.(1).
The petitioners had to attack the validity of both the Proclamations of Emergency, the continuance of one and the issuance of another, because even if one Proclamation of Emergency was in operation at the relevant time, it would be sufficient to invest Parliament with power to enact the House of People (Extension of Duration) Act, 1976.
Obviously, therefore, if the first Proclamation of Emergency was found to continue in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976, it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President.
I will accordingly first proceed to examine whether the first Proclamation of Emergency which was validly issued by the President ceased to be in force by reason of the alleged change in circumstances and was not operative at the relevant time.
It is only if this question is answered in favour of the petitioners that it would become necessary to consider the question of validity of the second proclamation of Emergency.
I think it is necessary to emphasize even at the cost of repetition that it was not the case of the petitioners that the first Proclamation of emergency when issued, was invalid.
It is a historical fact which cannot be disputed that Pakistan committed aggression against India on 3rd December, 1971 and a grave threat to the security of India arose on account of this external aggression.
The President was, therefore, clearly justified in issuing the first Proclamation of Emergency under cl.
(1) of article 352.
The petitioners, however, contended that the circumstances which warranted the issue of the first Proclamation of Emergency ceased to exist and put forward various facts such as the termination of hostilities with Pakistan on 16th December, 1971, the signing of the Simla Pact on 2nd June, 1972, the resumption of postal and 305 telecommunication links on 4th November, 1974 and the conclusion of trade agreement between India and Pakistan on 24th November, 1974 as also several statements made by the Prime Minister and other Ministers from time to time to show that the threat to the security of India on account of external aggression ceased long before 1975 and there was absolutely no justification whatsoever to continue the Proclamation and hence the continuance of the Proclamation was mala fide and in colourable exercise of power and it was liable to be declared as unconstitutional and void.
I do not think this contention of the petitioners can be sustained on a proper interpretation of the provisions of article 352.
This Article originally consisted of three clauses, but by section 5 of the Constitution (Thirty eighth Amendment) Act, 1975.
clauses (4) and (5) were added in this Article and thereafter, by a further amendment made by sec.
48 of the Constitution Forty second Amendments Act, 1976, another clause (2A) was introduced after cl.
The whole of this Article is not relevant for our purpose but I shall set out only the material provisions thereof which have a bearing on the controversy between the parties; 352(1): "If the President is satisfied that a grave emergency exists hereby the Security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect (in respect of the whole of India or cf such part of the territory thereof as may be specified in the Proclamation; (2) A Proclamation issued under cl.
(1) (a) may be revoked (or varied) by a subsequent Proclamation; (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.
. . . . . . . . . . . . . . . . . . (2A). . . . . . . . . . . . . . . . . . (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied the there is 306 imminent danger thereof.
(4) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under cl.
(1) and such Proclamation is in operation.
(5) Notwithstanding anything in this Constitution: (a) the satisfaction of the President mentioned in clauses (1) and (3) shall be final and conclusive and shall not be questioned in any Court on any ground; (b) subject to the provisions of cl.
(2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of (i) a declaration made by Proclamation by the President to the effect stated in clause (1); or (ii) the continued operation of such Proclamation.
" Now it is obvious on a plain natural construction of the language of cl.
(1) of article 352 that the President can take action under this clause only if he is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.
The satisfaction of the President "that a grave emergency exists whereby the security of India. is threatened whether by war or external aggression or internal disturbance" is a condition precedent which must be fulfilled before the President can issue a Proclamation under article 352 cl.
When this condition precedent is satisfied, the President may exercise the power under cl.
(1) of article 352 and issue a Proclamation of Emergency.
The constitutional implications of a declaration of emergency under article 352 cl.
(1) are vast and they are provided in Articles 83(2), 250, 353, 354, 358 and 359.
The emergency being an exceptional situation arising out of a national crisis certain wide and sweeping powers have been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions.
One such power is that given by article 83 (2), which provides that while a Proclamation of Emergency is in operation, Parliament may by law extend its duration for a period not exceeding, one year at a time.
Then another power conferred is that under article 250 which says that, while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the 307 whole or any part of the territory of India with respect to any of the matters enumerated in the State List.
The effect of this provision is that the federal structure based on separation of powers is put out of action for the time being.
Another power of a similar kind is given by article 353 which provides that during the time when a Proclamation of Emergency is in force, the executive powers of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised.
This provision also derogates from the federal principle which forms the basis of the Constitution.
Then we come to article 354 which confers power on the President, during the operation of a Proclamation of Emergency, to direct that provisions relating to distribution of revenues under articles 268 to 270 shall have effect subject to such modifications or exceptions as he thinks fit.
Another drastic consequence of the Proclamation of Emergency is that provided in Article 358 which suspends the operation of the Fundamental Rights guaranteed under article 19 while a Proclamation of Emergency is in operation.
article 359 cl (1) em powers the President during the operation of a Proclamation of Emergency to make an order suspending the enforcement of any of the Fundamental Rights conferred by Part III and cl.
(A) introduced by the Constitution (Thirty Eighth Amendment) Act, 1975 suspends the operation of those Fundamental Rights of which the enforcement has been suspended by the President by an order made under clause (1).
These are the drastic consequences which ensue upon the making of a declaration of emergency.
The issue of a Proclamation of Emergency makes serious inroads into the principle of federalism and emasculates the operation and efficacy of the Fundamental Rights.
The power of declaring an emergency is therefore a power fraught with grave consequences and it has the effect of disturbing the entire power structure under the Constitution.
But it is a necessary power given to the Central Government with a view to arming it adequately to meet an exceptional situation arising out of threat to the security of the country on account of war or external aggression or internal disturbance or imminent danger of any such calamity.
It is therefore a power which has to be exercised with the greatest care and caution and utmost responsibility.
It will be convenient at this stage to consider the question as to whether and if so to what extent, the Court can review the constitutionality of a Proclamation of Emergency issued under Article 352 cl.
There were two objections put forward on behalf of the respondents against the competence of the Court to examine the question of validity of a Proclamation of Emergency.
One objection was that the question whether a grave emergency exists whereby the security of India or any part thereof is threatened by war or external aggression 308 or internal disturbance is essentially a political question entrusted by the Constitution to the Union Executive and on that account, it is not justiciable before the court.
It was urged that having regard to the political nature of the problem, it was not amenable to judicial determination and hence the court must refrain from inquiring into it.
The other objection was that in any event by reason of clauses (4 and 5) of Article 352, the Court had no jurisdiction to question the satisfaction of the President leading to the issue of a Proclamation of Emergency or to entertain any question regarding the validity of the Proclamation of Emergency or its continued operation.
Both these objections are in my view unfounded and they do not bar judicial review of the validity of a Proclamation of Emergency issued by the President under Article 352 cl.
My reasons for saying so are as follows: It is axiomatic that if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities.
But merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination.
There are a large number of decisions in the United States where the Supreme Court has entertained actions having a political complexion because they raised constitutional issue.
Vide Gomallion vs Lightfoot and Baker vs Carr.
The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it.
This is also the view taken by Gupta, J. and myself in State of Rajasthan vs Union of India.
I pointed out in my judgment in that case and I still stand by it, that merely because a question has a political colour, the court cannot fold its hands in despair and declare "Judicial hands off".
So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court.
Indeed it would be its constitutional obligation to do so.
I have said before I repeat again that the Constitution is suprema lex the paramount law of the land, and there is no department or branch of government above or beyond it.
Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority and whether it has done so or not is for the Court to decide.
The Court is H 309 the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene.
Let it not be forgotten, that to this Court as much as to other branches of government, is committed the conservation and furtherance of constitutional values. 'the Court 's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the court.
"Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too.
" The Court cannot and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this country.
It would not therefore, be right for the Court to decline to examine whether in a given case there is any constitutional violation involved in the President issuing a Proclamation of Emergency under cl.
( I) of Article 352.
But when I say this, I must make It clear that the constitutional jurisdiction of this Court does not extend further than saying whether the limits on the power conferred by the Constitution on the President have been observed or there is transgression of such limits.
Here the only limit on the power of the President under Article 35 cl.
(1) is that the President should be satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war or external aggression or internal disturbance.
The satisfaction of the President is a subjective, one and cannot be decided by reference to any objective tests.
It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive branch of Government.
There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether there is a situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance.
It is not a decision which can be based on what the Supreme Court of the United States has described as "judiciably discoverable and manageable standards".
It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations.
potential consequences and a host of other imponderables.
It cannot therefore, by its very nature, be a fit subject matter for adjudication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it.
The court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based.
That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the court would thereby usurp 310 the function of the executive and in doing so, enter the "political thicket" which it must avoid, if it is to retain its legitimacy with the people.
But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied.
The satisfaction of the President is a condition precedent to the exercise of power under article 352 cl.
(1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid.
It is true that by reason of clause (5)(a) of Article 352, the satisfaction of the President is made final and conclusive, arid cannot be assailed on any ground, but, as I shall presently point out, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would be open to attack on the ground that it is unconstitutional and void as damaging or destroying the basic structure.
This attack against constitutionality can, however, be averted by reading the provision to mean and that is how I think it must be read that the immunity from challenge granted by it does not apply where the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all.
In such a case, it is not the satisfaction arrived at by the President which is challenged but the existence of the satisfaction itself.
Where therefore the satisfaction is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground, it would be no satisfaction at all and it would be liable to be challenged before a court, notwithstanding clause (5)(a) of Article 352.
It must, of course, be conceded that in most cases it would be difficult if not impossible, to challenge the exercise of power under Article 352 clause (1) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence cf the satisfaction can always be challenged on the ground that it is mala fide or based on a wholly extraneous or irrelevant ground.
It is true that so far there is no decision of this court taking the view that the validity of a Proclamation of Emergency can be examined by the court though within these narrow limits.
But merely because there has been no occasion for this Court to pronounce on the question of justiciability of a Proclamation of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial scrutiny.
The question whether or not a Proclamation of Emergency can be judicially reviewed on the ground that it is mala fide or an abuse of power of the President did arise before this Court in Gulam Sarwai vs Union of India.
but the court declined to 311 express any opinion on this question since no material was placed before the Court making out a case of mala fides or abuse of power.
Undoubtedly, in the subsequent decision of this Court in Bhutnath Mato vs State of West Bengal there are one or two observations which might seem to suggest at first blush that a Proclamation of Emergency being a political matter is "de hors our ken", but if one looks closely at the judgment of Krishna Iyer, J. in that case, it will be apparent that he does not lay down that a Proclamation of Emergency cannot be reviewed by the judiciary even on a limited ground and leaves that question open and rejects the contention of the petitioner challenging the continuance of Emergency only on the ground that "the onus of establishing the continuation of Emergency and absence of any ground whatever for the subjective satisfaction of the President, heavy as it is, has hardly been discharged, "and consequently it would be an academic exercise in constitutional law to pronounce on the question of judicial reviewability of a Proclamation of Emergency.
There is thus no decision of this court holding that a Proclamation of Emergency is beyond the judicial ken and I am not fettered by any such decision compelling me to take a view different from the one which I have expounded in the preceding paragraph of this opinion.
In fact, the judgment of Gupta, J. and myself in State of Rajasthan vs Union of India (supra) completely supports me in the view I am taking.
A Proclamation of Emergency is undoubtedly amenable to judicial review though on the limited ground that no satisfaction as required by Article 352 was arrived at by the President in law or that the satisfaction was absurd or perverse or mala fide or based on an extraneous or irrelevant ground.
Now the question arises whether the continuance of a Proclamation of Emergency valid when issued can be challenged before the court on the ground that the circumstances which necessitated or justified its issuance have ceased to exist.
Can the court be asked to declare that the Proclamation of Emergency has ceased to exist and is no longer in force or does the Proclamation continue to be in force until it is revoked by another Proclamation under clause 2(a) of Article 352.
The answer to this question depends on the interpretation of clause (2) of Article 352.
That clause says in sub clause (a) that a Proclamation of Emergency issued under clause (1) may be revoked by a subsequent Proclamation.
Sub clause (b) of that clause requires that a Proclamation issued under clause (1) shall be laid before each House of Parliament and under sub clause (c) such a Proclamation ceases to operate at the expiration of two months, unless it has been approved by both Houses of Parliament before the expiration of two 312 months.
It is clear from this provision that a Proclamation of Emergency validly issued under clause (1) would continue to operate at least for a period of two months and if before the expiration of that period, it has been approved by resolutions of both Houses of Parliament, it would continue to operate further even beyond the period of two months, and the only way in which it can be brought to an end is by revoking it by another Proclamation issued under clause 2(a).
There is no other way in which it can cease to operate.
Neither Article 352 nor any other Article of the Constitution contains any provision saying that a Proclamation of Emergency validly issued under clause (1) shall cease to operate as soon as the circumstances warranting its issuance have ceased to exist.
It is, therefore, clear on a plain natural interpretation of the language of sub clauses (a) to (c) of clause (2 that so long as the Proclamation of Emergency is not revoked by another Proclamation under sub clause (2) (a), it would continue to be in operation irrespective of change of circumstances.
It may be pointed out that this interpretation of the provision of clause (2) of Article 352 is supported by the decision of this Court in Lakhan Pal vs Union of India where dealing with a similar contention urged on behalf of the petitioner that the continuance of the emergency which was declared on 26th October, 1962 was a fraud on the Constitution.
this Court speaking through Sarkar, C. J. pointed out that "the only way a proclamation ceases to have effect is by one of the events mentioned in this clause" and since neither had happened, the Proclamation must be held to have continued in operation.
The petitioner urged in that case that armed aggression which justified the issue of the Proclamation of Emergency had come to an end and the continuance of the Proclamation was therefore unjustified.
But this contention was negatived on the ground that the Proclamation having been approved by the two Houses of Parliament within a period of two months of its issuance, it could cease to have effect only if revoked by another Proclamation and that not having happened, the Proclamation continued to be in force.
It is true that the power to revoke a Proclamation of Emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong baselessly the state of emergency obliterating the Fundamental Rights and this may encourage a totalitarian trend.
But the Primary and real safeguard of the citizen against such abuse of power lies in "the good sense of the people and in the system of representative and responsible Government" which is provided in the Constitution.
Additionally, it may be possible for the citizen in a given case to move 313 the court for issuing a writ of mandamus for revoking the Proclamation of Emergency if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency.
But this would be a very heavy onus because it would be entirely for the executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked.
There would be so many facts and circumstances and such diverse considerations to be taken into account by the executive Government before it can be satisfied that there is no longer any grave emergency whereby the security of India is threatened by war or external aggression or internal disturbance. 'this is not a matter which is a fit subject matter for judicial determination and the court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose.
The court may in such a case, if satisfied beyond doubt, grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency.
But until that is done, the Proclamation of Emergency would continue in operation and it cannot be said that, though not revoked by another Proclamation, it has still ceased to be in force.
Here, in the present case it was common ground that the first Proclamation of Emergency issued on 3rd December 1971 was not revoked by another Proclamation under clause 2(a) of Article 352 until 21st March 1977 and hence at the material time when the House of People (Extension of Duration) Act, 1976 was passed, the first Proclamation of Emergency was in operation.
Now if the first Proclamation of Emergency was in operation at the relevant time, it would be sufficient compliance with the requirement of the proviso to clause (2) of Article 83 and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President.
But, contended the petitioners, the House of People (Extension of Duration) Act, 1976 on a proper interpretation of section 2 postulated the operational existence of both the Proclamations of Emergency and if either of them was not in existence at the material date, the Act would be inoperative and would not have the effect of extending the duration of the Lok Sabha.
It was therefore not enough for the respondents to establish that the first Proclamation of Emergency was in operation at the relevant date, but it was further necessary to show that the second Proclamation of Emergency was also in operation and hence it was necessary to consider whether the second Proclamation of Emergency was validly issued by the President.
The respondents sought to answer this contention 314 of the petitioners by saying that on a proper construction of the language of section 2, it was not a condition precedent to the operation.
of the House of People (Extension of Duration Act, 1976 that both the Proclamations of Emergency should be in operation at the date when the Act was enacted.
The House of People (Extension of Duration) Act, 1976 no doubt referred to both the Proclamations of Emergency being in operation but that was merely, said the respondents, by way of recital and it was immaterial whether this recital was correct or in correct, because so long as it could be objectively established that on Proclamation of Emergency at least was in operation, the requirement of the proviso to Article 83 clause (2) would be satisfied and the Act would be within the competence of Parliament to enact.
These rival contentions raised a question of construction of section 2 of the House of People (Extension of Duration) Act, 1976.
It is a simple question which does not admit of much doubt or debate and a plain grammatical reading of section 2 is sufficient to answer it.
It would be convenient to reproduce section 2 which co incidentally happens to be the only operative section of the Act: "Sec. 2: The period of five years (being the period for which the House of the People may, under clause (2) of Article 83 of the Constitution, continue from the date appointed for its first meeting) in relation to the present House of the People shall, while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in, operation, be extended for a period of one year: Provided that if both or either of the said Proclamations cease or ceases to operate before the expiration of the said period of one year, the present House of the People shall, unless previously dissolved under clause (2) of Article 83 of the Constitution,.
continue until six months after the cesser of operation OF the said Proclamations or Proclamation but not beyond the said period of one year.
" While interpreting the language of this section, it is necessary to bear in mind that the House of People (Extension of Duration) Act, 1976 was enacted under the proviso to clause (2) of Article 83 for the purpose of extending the duration of the Lok Sabha and it was a condition precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency in operation at the date when the Act was enacted.
Now according to Parliament there were two Proclamations of Emergency which were in operation at the material date, one issued on 3rd December 1971 and the other on 25th June 1975 and the condition precedent for the exercise of the power under the proviso to cl.
(2) of Article 83 to enact the House of People (Extension 315 of Duration) Act, 1976 was satisfied.
It was, from the point of view of legislative drafting, not necessary to recite the fulfillment of this condition precedent, but the draftsman of the Act, it seems, thought it advisable to insert a recital that this condition precedent was satisfied and he, therefore, introduced the words "while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975 are both in operation" before the operative part in sec.
2 of the Act.
These words were introduced merely by way of recital of the satisfaction of the condition precedent for justifying the exercise of the power under the proviso to clause (2) of Article 83 and they were not intended to lay down a condition for the operation of sec.
2 of the Act.
Section 2 clearly and in so many terms extended the duration of the Lok Sabha for a period of one year and this extension was not made dependent on both the Proclamations of Emergency being in operation at the date of the enactment of the Act.
It was for a definite period of one year that the extension was effected and it was not co extensive with the operation of both the Proclamations of Emergency.
The extension for a period of one year was made once and for all by the enactment of section 2 and the reference to both the Proclamations of Emergency being in operation was merely for the purpose of indicating that both the Proclamations of Emergency being in operation.
Parliament had competence to make the extension.
It was therefore not at all necessary for the efficacy of the extension that both the Proclamations of Emergency should be in operation at the date of enactment of the Act.
Even if one Proclamation of Emergency was in operation at the material date, it would be sufficient to attract the power of Parliament under the proviso to article 83 clause (2) to enact the Act extending the duration of the Lok Sabha.
Of course, it must be concerned that Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act, but even if this legislative assumption were unfounded, it would not make any difference to the validity of the exercise of the power, so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha wader the proviso to clause (2) of Article 83.
It is true that the proviso to sec.
2 enacted that if both or either of the Proclamations of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the cesser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application only in relation to a Proclamation of Emergency which was in operation at the date of enactment of the Act.
If such a Proclamation of Emergency which was in operation at the 316 material date ceased to operate before the expiration of the extended period of one year, then the term of the Lok Sabha would not immediately come to an end, but it would continue for a further period of six months but not so to exceed the extended period of one year.
This provision obviously could have no application in relation to the second Proclamation of emergency if it was void when issued.
In such a case, the second Proclamation not being valid at all at the date of issue would not be in operation at all and it could not cease to operate after the date of enactment of the Act.
The proviso would in that event have to be read as relating only to the first Proclamation of Emergency, and since that Proclamation of Emergency continued until it was revoked on 21st March, 1977, the duration of the Lok Sabha was validly extended for a period of one year from 18th March, 1976 and hence there was a validly constituted Lok Sabha on the dates when the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty second Amendment) Act, 1976 were passed by Parliament.
On this view it is not at all necessary to consider whether the second Proclamation of Emergency was validly issued by the President.
It is the settled practice of this Court not to say more than is necessary to get a safe resting place for the decision and I do not think that any useful purpose will be served by examining the various grounds of challenge urged against the validity of the second Proclamation of Emergency, particularly since clause (3) has been introduced in article 352 by the Constitution (Forty Fourth Amendment) Act, 1978 requiring that a Proclamation of Emergency shall not be issued by the President unless the decision of the Union Cabinet recommending the issue of such Proclamation has been communicated to him in writing and clause (9) of Article 352 introduced by the Constitution (Thirty eighth Amendment) Act.
1975 and renumbered by the Constitution (Forty Fourth Amendment) Act, 1978 empowers the President to issue different Proclamations on different grounds.
I would, therefore.
reject the challenge against the validity of the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty second Amendment) Act, 1976 based on the ground that on the dates when these Constitution Amending Acts were enacted, the Lok Sabha was not validly in existence.
That takes me to the challenge against the constitutional validity of the amendment made in Article 31.
by section 4 of the Constitution (Forty second Amendment) Act, 1976.
This amendment substitutes the words "all or any of the principles laid down in Part IV" for the words "the principles specified in clause (b) or clause (c) of Article 39" and so amended; Article 31C provides that "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid dow. in Part IV shall 317 be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19".
The amended Article 31C gives primacy to Directive Principles over Fundamental Rights in case of conflict between them and the question is whether this amendment is in any way destructive of the basic structure of the Constitution.
To answer this question satisfactorily, it is necessary to appreciate the inter relationship between Fundamental Rights and Directive Principles and for this purpose it would be useful to trace briefly the history of their enactment in the Constitution.
The genesis of Fundamental Rights and Directive Principles is to be found in the freedom struggle which the people of India waged against the British rule under the aegis of the Indian National Congress led by Mahatma Gandhi, Jawaharlal Nehru and other national leaders.
These great leaders realised the supreme importance of the political and civil rights of the individual.
because they knew from their experience of the repression under the British rule as also from the recent events of history including the two World Wars that these rights are absolutely essential for the dignity of man and development of his full personality.
But, at the same time, they were painfully conscious that in the socio economic conditions that prevailed in the country.
only an infinitesimal fraction of the people would be able to enjoy these civil and political rights.
There were millions of people in the country who were steeped in poverty and destitution and for them, these civil and political rights had no meaning.
It was realised that to the large majority of people who are living an almost sub human existence in conditions of object poverty and for whom life is one long unbroken story of want and destitution, notions of individual freedom and liberty, though representing some of the most cherished values of free society, would sound as empty words bandied about only in the drawing rooms of the rich and well to do and the only solution for making these rights meaningful to them was to re make the material conditions and usher in a new social order where socio economic justice will inform all institutions of public life so that the pre conditions of fundamental liberties for all may be secured.
It was necessary to create socio economic conditions in which every citizen of the country would be able to exercise civil and politically rights and they will not remain the preserve of only a fortunate few.
The national leaders, therefore, laid the greatest stress on the necessity of bringing about socio economic regeneration and ensuring social and economic justice.
Mahatma Gandhi, the father of the nation, said in his inimitable style in words, full of poignancy: "Economic equality is the master key to non violent independence.
A non violent system of Government is an impossibility so long as the wide gulf between the rich and the hungry 318 millions persists.
The contrast between the palaces of New Delhi and the miserable hovels of the poor labouring class cannot last one day in a free India in which the poor will enjoy the same power as the rich in the land.
A violent and bloody revolution is a certainty one day, unless there is voluntary abdication of riches and the power that riches give and sharing them for common good".
Jawaharlal Nehru also said in the course of his presidential address to the Lahore Congress Session of 1929: "The philosophy of socialism has gradually permeated the entire structure of the society, the world over and almost the only point in dispute is the phase and methods of advance to its full realisation.
India will have to go that way too if she seeks to end her poverty and inequality, though she may evolve her own methods and may adapt the ideal to the genius of her race.
Then again, emphasizing the intimate and inseverable connection between political independence and social and economic freedom, he said: "If an indigenous Government took the place of the foreign Government and kept all the vested interests intact, this would not be even the shadow of freedom . . . . . . . . . . . . .
India 's immediate goal can only be considered in terms of the ending of the exploitation of her people.
Politically, it must mean independence and cession of the British connection, economically and socially, it must mean the ending of all special class privileges and vested interests.
" The Congress Resolution of 1929 also emphasized the same theme of socio economic reconstruction when it declared: "The great poverty and misery of the Indian people are due, not only to foreign exploitation in India, but also to the economic structure of society, which the alien rulers support so that their exploitation may continue.
In order therefore to remove this poverty and misery and to ameliorate the condition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities.
" The Resolution passed by the Congress in 1931 proceeded to declare that in order to end the exploitation of masses, political freedom must include social and economic freedom of the starving mil lions.
The Congress Election Manifesto of 1945 also reiterated the same thesis when it said that "the most vital and urgent of India 's 319 problems is how to remove the curse of poverty and raise the standard of masses" and for that purpose it is "necessary. . . . . to prevent the concentration of wealth and power in the hands of individuals and groups and to prevent vested interests inimical to society from "growing".
This was the socio economic philosophy which inspired the framers of the Constitution to believe that the guarantee of individual freedom was no doubt necessary to be included in the Constitution, but it was also essential to make provisions for restructuring the socio economic order and ensuring social and economic justice to the people.
This was emphasized by Jawaharlal Nehru when, speaking on the resolution regarding the aims and objectives before the Constituent Assembly, he said: "The first task of this Assembly is to free India through a new Constitution, to feed the starving people and clothe the naked masses and give every Indian fullest opportunity to develop himself according to his capacity.
In fact, as pointed out by K. Santhanan, a prominent southern member of the Constituent Assembly, there were three revolutions running parallel in India since the end of the first World War.
The political revolution came to an end on 15th August, 1947 when India became independent but clearly political freedom cannot be an end in itself.
it can only be a means to an end, "that end being" as eloquently ex pressed by Jawaharlal Nehru "the raising of the people,. . . . to higher levels and hence the general advancement of humanity.
" It was therefore necessary to carry forward and accomplish the social and economic revolutions.
The social revolution was meant to get India "out of the mediavalism based on birth, religion, custom and community and reconstruct her social structure on modern foundations of law, individual merit and secular education," while the economic revolution was intended to bring about "transition from primitive rural economy to scientific and planned agriculture and industry.
" Dr. Radhakrishnan who was a member of the Constituent Assembly and who later became the President of India also emphasised that India must have a socio economic revolution designed not only to bring about the real satisfaction of the fundamental needs of the common man hut to go much deeper and bring about "a fundamental change in the structure of Indian society.
" It was clearly realised by the framers of the Constitution that on the achievement of this great social and economic change depended the survival of India.
"If we cannot solve this problem soon", Jawaharlal Nehru warned the Constituent Assembly "all our paper Constitutions will become useless and purposeless." The objectives Resolution which set out the and 320 objectives before the Constituent Assembly in framing the Constitution and which was passed by the Constituent Assembly in January 1947 before embarking upon the actual task of Constitution making, therefore, expressed the resolve of the Constituent Assembly to frame a constitution "wherein shall be guaranteed and secured to all the people of India justice, social, economic and political, equality of status and of opportunity before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality and wherein adequate safeguards shall be provided for minority, backward and trial areas and depressed and other backward classes." These objectives were incorporated by the Constitution makers in the Preamble of the Constitution and they were a sought to be secured by enacting Fundamental Rights in Part III and Directive Principles in Part IV.
It is not possible to fit Fundamental Rights and Directive Principles in two distinct and strictly defined categories, but it may be stated broadly that Fundamental Rights represent civil and political rights while Directive Principles embody social and economic rights.
Both are clearly part of the broad spectrum of human rights.
If we look at the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 18th December 1948.
we find that it contains not only rights protecting individual freedom (See Articles 1 to 21) but also social and economic rights intended to ensure socio economic justice to every one (See Articles 22 to 29).
There are also two International Covenants adopted by the General Assembly for securing human rights, one is the International Covenant on Civil and Political Rights and the other is the International Covenant on Economic, Social and Cultural Rights.
Both are international instruments relating to human rights.
It is therefore not correct to t say that Fundamental Rights alone are based on human rights while Directive Principles fall in some category other than human rights.
The socio economic rights embodied in the Directive Principles are as much a part of human rights as the Fundamental Rights.
Hegde and Mukherjea, JJ. were.
to my mind, right in saying in Keshavananda Bharati 's case at page 312 of the Report that "the Directive Principles and the Fundamental Rights mainly proceed on the basis of human Rights.
" Together, they are intended to carry out the objectives set out in the Preamble of the Constitution and to establish an egalitarian social order informed with political, social and economic justice and II ensuring dignity of the individual not only to a few privileged persons but to the entire people of the country including the have nots and the handicapped, the lowliest and the lost, 321 Now it is interesting to note that although Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, there was no such demarcation made between them during the period prior to the framing of the Constitution.
If we may quote the words of Granville Austin in his book; "Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining.
and of the character of Indian politics itself".
They were both placed on the same pedestal and treated as falling within the same category compendiously described as "Fundamental Rights".
The Sapru Committee in its Constitutional Proposals made in 1945, recommended that the declaration of Fundamental Rights in its wider sense was absolutely necessary and envisaged these rights as falling in two classes; one justiciable and the other non justiciable the former being enforceable in Courts of law and the latter, not.
The Committee however, felt difficulty in dividing the Fundamental Rights into these two classes and.
left the whole issue to be settled by the Constitution making body with the observation that though the task was difficult, it was by no means impossible.
This suggestion of the Sapru Committee perhaps drew its inspiration from the Irish Constitution of 1937, which made a distinction between justiciable and non justiciable rights and designated the former as Fundamental Rights and the latter as Directive Principles of Social Policy.
Dr. Lauter pacht also made a similar distinction between justiciable and non justiciable rights in his "International Bill of the Rights of Men".
The substantial provisions of this Bill were in two parts; Part I dealt with personal or individual rights enforceable in Courts of Law while Part II set out social and economic rights incapable of or unsuitable for such enforcement.
Sir B. N. Rau, who was the Constitutional Adviser to the Government of India, was considerably impressed by these ideas and he suggested that the best way of giving effect to the objectives set out in the objectives Resolution was to split up the objectives into Fundamental Rights and Fundamental Principles of State Policy, the former relating to personal and political rights enforceable in Courts of Law and the latter relating to social and economic rights and other matters, not so enforceable and proposed that the Chapter on Fundamental Rights may be split up into two parts; Part A dealing with the latter kind of rights under the heading "Fundamental Principles of Social Policy" and Part dealing with the former under the heading "Fundamental Rights".
The Fundamental Rights Sub Committee also recommended that "the list of fundamental rights should be prepared in two parts, the first part consisting of rights enforceable by appropriate legal process and the second consisting of Directive Principles of Social Policy".
A week later, while moving for consideration, the Interim Report of Fundamental Rights, Sardar Vallabhbhai Patel said: 322 "This is a preliminary report or an interim report because the Committee when it sat down to consider the question of fixing the fundamental rights and its incorporation into the Constitution.
came to the conclusion that the Fundamental Rights should be divided into two parts the first part justiciable and the other non justiciable.
" This position was reiterated by Sardar Vallabhbhai Patel when he said while presenting the Supplementary Report: "There were two parts of the Report; one contained Fundamental Rights which were justiciable and the other part of the Report referred to Fundamental Rights which were not justiciable but were directives. " It will, therefore, be seen that from the point of view of importance and significance no distinction was drawn between justiciable and non justiciable rights and both were treated as forming part of the rubric of Fundamental Rights, the only difference being that whereas the former were to be enforceable in Courts of Law, the latter were not to be so enforceable.
This proposal of dividing the fundamental rights into two parts, one part justiciable and the other non justiciable, was however not easy of adoption, because it was a difficult task to decide in which category a particular fundamental right should be included.
The difficulty may be illustrated by pointing out that at one time the right to primary education was included in the draft list of Fundamental Rights, while the equality clause figured in the draft list of Fundamental Principles of Social Policy.
But ultimately a division of the Fundamental Rights into justiciable and non justiciable rights was agreed upon by the Constituent Assembly and the former were designated as "Fundamental Rights" and the latter as "Directive Principles of State Policy".
It has sometimes been said that the Fundamental Rights deal with negative obligations of the State not to encroach on individual freedom, while the Directive Principles impose positive obligations on the State to take certain kind of action.
But, I find it difficult to subscribe to this proposition because, though the latter part may be true that the Directive Principles require positive action to be taken by the State, it is not wholly correct to say that the Fundamental Rights impose only negative obligations on the State.
There are a few fundamental rights which have also a positive content and that has been.
to some extent, unfolded by the recent decisions of this Court in Hussainara Khatton vs State of Bihar, Madhav Hayawadanrao Hoskot vs State of Maharashtra and Sunil Batra etc.
vs Delhi Administration & Ors.
There are new dimensions of 323 the Fundamental Rights which are being opened up by this Court and the entire jurisprudence of Fundamental Rights is in a stage of resurgent evolution.
Moreover, there are three Articles, namely, article 15(2), article 17 and article 23 within the category of Fundamental Rights which are designed to protect the individual against the action of other private citizens and seem to impose positive obligations on the State to ensure this protection to the individual.
I would not, therefore, limit the potential of the Fundamental Rights by subscribing to the theory that they are merely negative obligations requiring the State to abstain as distinct from taking positive action.
The only distinguishing feature, to my mind, between Fundamental Rights and Directive Principles is that whereas the former are enforceable in a Court of Law, the latter, are not.
And the reason for this is obvious; it has been expressed succinctly by the Planning Commission in the following words: "The non justiciability clause only provides that the infant State shall not be immediately called upon to account for not fulfilling the new obligations laid upon it.
A State just awakened to freedom with its many pre occupations might be crushed under the burden unless it was free to decide the order, the time, the place and the mode of fulfilling them.
" The social and economic rights and other matters dealt with in the Directive Principles are by their very nature incapable of judicial enforcement and moreover, the implementation of many of those rights would depend on the state of economic development in the country, the availability of necessary finances and the Government 's assessment of priority of objectives and values and that is why they are made non justiciable.
But merely because the Directive Principles are non justiciable, it does not follow that they are in any way subservient or inferior to the Fundamental Rights.
The Indian Constitution is first and foremost a social document.
The majority of its provisions are either directly aimed at furthering the goals of the socio economic revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement.
Yet despite the permeation of the entire Constitution by the aim of national renascence, says Granville Austin, "the core of the commitment to the social revolution lies . . . in the Fundamental Rights and the Directive Principles of State Policy.
" These are the conscience of the Constitution and, according to Granville Austin, "they are designed to be the Chief instruments in bringing 324 about the great reforms of the socio economic revolution and realising the constitutional goals of social, economic and political justice for all.
The Fundamental Rights undoubtedly provide for political justice by conferring various freedoms on the individual, and also make a significant contribution to the fostering of the social revolution by aiming at a society which will be egalitarian in texture and where the rights of minority groups will be protected.
But it is in the Directive Principles that we find the clearest statement of the socioeconomic revolution.
The Directive Principles aim at making the Indian masses free in the positive sense, free from the passivity engendered by centuries of coercion by society and by nature, free from the object physical conditions that had prevented them from fulfilling their best salves.
The Fundamental Rights are no doubt important and valuable in a democracy.
but there can be no real democracy without social and economic justice to the common man and to create socio economic conditions in which there can be social and economic justice to every one, is the theme of the Directive Principles.
It is the Directive Principles which nourish the roots of our democracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not remain merely a political democracy but also becomes social and economic democracy with Fundamental Rights available to all irrespective of their power, position or wealth.
The dynamic provisions of the Directive Principles fertilise the static provisions of the Fundamental Rights.
The object of the Fundamental Rights is to protect individual liberty, but can individual liberty be considered in isolation from the socio economic structure in which it is to operate.
There is a real connection between individual liberty and the shape and form of the social and economic structure of the society.
Can there be any individual liberty at all for the large masses of people who are suffering from want and privation and who are cheated out of their individual rights by the exploitative economic system ? Would their individual liberty not come in conflict with the liberty of the socially and economically more powerful class and in the process, get mutilated or destroyed ? It is axiomatic that the real controversies in the present day society are not between power and freedom but between one form of liberty and another.
Under the present socio economic system, it is the liberty of the few which is in conflict with the liberty of the many.
The Directive Principles therefore, impose an obligation on the State to take positive action 325 for creating socio economic conditions in which there will be an egalitarian social order with social and economic justice to all, so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the country.
It will thus be seen that the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the framework of the socio economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people who do not have even the bare necessities of life and who are living below the poverty level.
The Directive Principles are set out in Part IV of the Constitution and this Part starts with Article 37 which, to my mind, is an Article of crucial importance.
It says: "The provisions contained in this Part shall not be enforceable in any court but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
" It is necessary, in order to appreciate the full implications of this Article, to compare it with the corresponding provision in the Irish Constitution which, as pointed out above, provided to some extent the inspiration for introducing Directive Principles in the Constitution.
Article 45 of the Irish Constitution provides: "The principles of social policy set forth in this Article are E intended for the general guidance of the Directives.
The application of those principles in the making of laws shall be the care of the Direchtas exclusively and shall not be cognizable for any court under any of the provisions of this Constitution.
" It is interesting to note that our Article 37 makes three significant departures from the language of Article 45; first whereas Articles 4.
provides that the application of the principles of social policy shall not be cognizable by any court, Article 37 says that the Directive Principles shall not be enforceable by any court: secondly whereas Article 45 provides that the principles of social policy are intended for the general guidance of the Direchtas, Article 37 makes the Directive Principles fundamental in the governance of this country; and lastly, whereas Article 45 declares that the application of principles of social policy in the making of laws shall be the care of the Direchtas exclusively, Article 37 enacts that it shall be the duty of the State to apply the Directive Principles in making laws.
The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis o f this provision, fundamentally altering its significance and efficacy, 326 It will be noticed that the Directive Principles are not excluded from the cognizance of the court, as under the Irish Constitution: they are merely made non enforceable by a court of law for reasons already discussed But merely because they are not enforceable by the judicial process does not mean that they are of subordinate importance to any other part of the Constitution.
I have already said this before, but I am emphasizing it again, even at the cost of repetition, because at one time a view was taken by this Court in State of Madras vs Champkan Dorairajan that because Fundamental Rights are made enforceable in a court of law and Directive Principles are not. "the Directive Principles have to conform to and run as subsidiary to the Chapter on Fundamental Rights.
" This view was patently wrong and within a few years, an opportunity was found by this Court in the Kerala Education Bill, 1959 SCR 995 to introduce a qualification by stating that: "Nevertheless in determining the scope and ambit of the Fundamental Rights relied on by or on behalf of any person or body, the court may not entirely ignore these Directive Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible." But even this observation seemed to give greater importance to Fundamental Rights as against Directive Principles and that was primarily because the Fundamental Rights are enforceable by the Judicial process while the Directive Principles are expressly made non enforceable I am however, of the opinion, and on this point I agree entirely with the observation of Hegde, J. in his highly illuminating Lectures on the "Directive Principles of State Policy" that: "Whether or not a particular mandate of the Constitution is enforceable by court, has no bearing on the importance of that mandate.
The Constitution contains many important mandates which may not be enforceable by the courts of law.
That does not mean that those Articles must render subsidiary to the Chapter on Fundamental Rights . it would be wrong to say that those positive mandates", that is the positive mandates contained in the Directive Principles, "are of lesser significance than the mandates under Part III.
" Hegde, J. in fact pointed out at another place in his Lectures that: "Unfortunately an impression has gained ground in the organs of the State not excluding judiciary that because the Directive Principles set out in Part IV are expressly made by Article 37 non enforceable by courts, these directives are mere pious hopes 327 not deserving immediate attention.
I emphasize again that no Part of the Constitution is more important that Part IV To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built up." (Emphasis supplied).
I wholly endorse this view set forth by Hegde, J and express my full concurrence with it.
I may also point out that simply because the Directive Principles do not create rights enforceable in a court of law, it does not follow that they do not create any obligations on the State.
We are so much Obsessed by the Hohfeldian Classification that we tend to think of rights, Liberties, powers and privileges as being invariably linked with the corresponding concept of duty, no right, liability and immunity.
We find it difficult to conceive of obligations or duties which do not create corresponding rights in others.
But the Hohfeldian concept does not provide a satisfactory analysis in all kinds of jural relation ships and breaks down in some cases where it is not possible to say that the duty in one creates an enforceable right in another.
There may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding enforceable right in another person.
But it would still be a legal rule because it prescribes a norm or con duct to be followed by such individual or authority.
The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism.
The obligation exists prior to and independent of the mechanism of enforcement.
A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi judicial machinery to enforce its command.
Such a rule would exist despite of any problem relating to its enforcement.
Otherwise the conventions of the Constitution and even rules of International Law would no longer be liable to be regarded as rules of law.
This view is clearly supported by the opinion of Professor A. L. Goodhart who, while commenting upon this point, says: "I have always argued that if a principle is recognised as, binding on the legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it.
Thus most of Dicey 's book on the British Constitution is concerned with certain general principles which Parliament recognises as binding on it.
" It is therefore.
to my mind, clear beyond doubt that merely because the Directive Principles are not enforceable in a court of law, it does not mean that they cannot create obligations or duties binding on the 328 State.
The crucial test which has to be applied is whether the Directive Principles impose any obligations or duties on the State; if they do, the State would be bound by a constitutional mandate to carryout such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law.
Now on this question Article 37 is emphatic and makes the point in no uncertain terms.
It says that the Directive Principles are "nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
" There could not have been more explicit language used by the Constitution makers to make the Directive Principles binding on the State and there can be no doubt that the State is under a constitutional obligation to carry out this mandate contained in Article 37.
In fact, non compliance with the Directive Principles would be unconstitutional on the part of the State and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile.
Now it is significant to note that for the purpose of the Directive Principles, the "State" has the same meaning as given to it under Article 13 for the purpose of the Fundamental Rights.
This would mean that the same State which is injuncted from taking any action in infringement of the Fundamental Rights is told in no uncertain terms that it must regard the Directive Principles as fundamental in the governance of the country and is positively mandated to apply them in making laws.
This gives rise to a paradoxical situation and its implications are for reaching.
The State is on the one hand, prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any Fundamental Right and at the same time it is directed by the constitutional mandate in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving effect to the Directive Principles.
Both are constitutional obligations of the State and the question is, as to which must prevail when there is a conflict between the two.
When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a higher pedestal and have precedence over Directive Principles.
But, as we have pointed out above, it is not correct to say that under our constitutional scheme, Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights.
Both are in fact equally fundamental and the courts have therefore in recent times tried to 329 harmonise them by importing the Directive Principles in the construction of the Fundamental Rights.
It has been laid down in recent decisions of this Court that for the purpose of determining the reasonableness of the restriction imposed on Fundamental Rights, the Court may legitimately take into account the Directive Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the restriction imposed by it on a Fundamental Right may be presumed to be reasonable.
I do not propose to burden this opinion with reference to all the decided cases where this principles has been followed by the Court, but I may refer only to one decision which, I believe, is the latest on the point, namely, Pathumma vs State of Kerala, where Fazal Ali, J. summarised the law in the following words: "one of the tests laid down by this Court is that in judging the reasonableness of the restrictions imposed by clause (5) of article 19, the Court has to bear in mind the Directive Principles of State Policy".
So also in the State of Bihar vs Kameshwar Singh, this Court relied upon the Directive Principle contained in article 39 in arriving at its decision that the purpose for which the Bihar Zamindary Abolition legislation had been passed was a public purpose.
The principle accepted by this Court was that if a purpose is one falling within the Directive Principles, it would definitely be a public purpose.
It may also be pointed out that in a recent decision given by this Court in M/s Kasturi Lal Lakshmi Reddy etc.
vs The State of Jammu & Kashmir & Anr, has been held that every executive action of the Government, whether in pursuance of law or otherwise, must be reasonable and informed with public interest and the yardstick for determining both reasonableness and public interest is to be found in the Directive Principle and therefore, if any executive action is taken by the Government for giving effect to a Directive Principle, it would prima facie be reasonable and in public interest.
It will, therefore, be seen that if a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest.
So also where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of more formal equality before the law but embodies the concept of real and 330 substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice.
The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle.
If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice.
it would be difficult to say that such law violates the principle of egalitarianism and is not in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude.
In the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice, would not infringe any Fundamental Right under Article 14 or 19.
Mr. C. H. Alexandrowick, an eminent jurist, in fact, says: "Legislation implementing Part IV must be regarded as permitted restrictions on Part III".
Dr. Ambedkar, one of the chief architects of the Constitution, also made it clear while intervening during the discussion on the Constitution (First Amendment Bill in the Lok Sabha on 18th May 1951 that in his view "So" far as the doctrine of implied powers is concerned, there is ample authority in the Constitution itself, namely, in the Directive Principles to permit Parliament to make legislation, although it will not be specifically covered by the provisions contained in the Part on Fundamental Rights".
If this be the correct interpretation of the constitutional provisions, as I think it is, the amended Article 31C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a Directive Principle, so that needlessly futile and time consuming controversy whether such law contravenes Article 14 or 19 is eliminated.
The amended Article 31C cannot in the circumstances be regarded as violative of the basic structure of the Constitution.
But I may in the alternative, for the purpose of argument.
assume that there may be a few cases where it may be found by the court.
perhaps on a narrow and doctrinaire view of the scope and applicability of a Fundamental Right as in Karimbil Kunhikoman vs State of Kerala where a law awarding compensation at a lower rate to holders of larger blocks of land and at higher rate to holders of smaller blocks of land was struck down by this Court as violative of the equality clause, that a law enacted really and genuinely for giving effect to a Directive Principle is violative of a Fundamental Right under Article 14 or 19.
Would such a law enacted in discharge of the.
331 constitutional obligation laid upon the State under Article 37 be invalid, because it infringes a Fundamental Right ? If the court takes the view that it is invalid, would it not be placing Fundamental Rights above Directive Principles, a position not supported at all by the history of their enactment as also by the constitutional scheme already discussed by me.
The two constitutional obligations, one in regard to Fundamental Rights and the other in regard to Directive Principles, are of equal strength and merit and there is no reason why, in case or conflict.
the former should be given precedence over the latter.
I have already pointed out that whether or not a particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal than the other.
The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws.
It would amount to refusal to give effect to the words "fundamental in the governance of the country" and a constitutional command which has been declared by the Constitution to be fundamental would be rendered not fundamental.
The result would be that a positive mandate of the Constitution commanding the State to make a law would be defeated; by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional.
This plainly would be contrary to the constitutional scheme because, as already pointed out by me, the Constitution does not accord a higher place to the constitutional obligation in regard to Fundamental Rights over the contractional obligation in regard to Directive Principles and does not say that the implementation of the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights.
The main thrust of the argument of Mr. Palkhiwala was that by reason of the amendment of Article 31C, the harmony and balance between Fundamental Rights and Directive Principle are disturbed because Fundamental Rights which had.
prior to the amendment, precedence over Directive Principles are now, as a result of the amendment, made subservient to Directive Principles.
Mr. Palkhiwala picturesquely described the position emerging as a result of the amendment by saying that the Constitution is now made to stand on its head instead of its legs.
But in my view the entire premise on which this argument of Mr. Palkhiwala is based is fallacious because it is not correct to say, and I have in the preceding portions 332 of this opinion, given cogent reasons for this view, that prior to the amendments Fundamental Rights had a superior or higher position in the constitutional scheme than Directive Principles and there is accordingly no question at all of any subversion of the constitutional structure by the amendment.
There can be no doubt that the intention of the Constitution makers was that the Fundamental Rights should operate within the socio economic structure or a wider continuum envisaged by the Directive Principles, for then only would the Fundamental Rights become exercisable by all and a proper balance and harmony between Fundamental Rights and Directive Principles secured.
The Constitution makers therefore never contemplated that a conflict would arise between the constitutional obligation in regard to Fundamental Rights and the constitutional mandate in regard to Directive Principles.
But if a conflict does arise between these two constitutional mandates of equal fundamental character how is the conflict to be resolved ? The Constitution did not provide any answer because such a situation was not anticipated by the Constitution makers and this problem had therefore to be solved by Parliament and some modus operandi had to be evolved in order to eliminate the possibility of conflict howsoever remote it might be.
The way was shown in no uncertain terms by Jawaharlal Nehru when he said in the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill: "The Directive Principles of State Policy represent a dynamic move towards a certain objective.
The Fundamental Rights represent something static, to preserve certain rights which exist.
Both again are right.
But somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other.
The dynamic movement towards a certain objective necessarily means certain changes taking place: that is the essence of movement.
Now it may be that in the process of dynamic movement certain existing relationships are altered, varied or affected.
In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights they are meant to preserve, not indirectly, certain settled relationships.
There is a certain conflict in the two approaches, not inherently.
because that was not meant, I am quite sure.
But there is that slight difficulty and naturally when the courts of the land have to consider these matters they have to lay stress more on the Fundamental Rights than on the Directive Principles.
The result is that the whole purpose behind the Constitution, which was meant to be a dynamic Constitution leading to a certain goal step 333 by step, is somewhat hampered and hindered by the static element A being emphasized a little more than the dynamic element. .
If in the protection of individual liberty you protect also individual or group inequality, then you come into conflict with that Directive Principle which wants, according to your own Constitution.
a gradual advance, or let us put it in another way, not so gradual but more rapid advance, whenever possible to a State where .
there is less and less inequality and more and more equality.
If any kind of an appeal to individual liberty and freedom is construed to mean as an appeal to the continuation of the existing inequality, then you get into difficulties.
Then you become static, unprogressive and cannot change and you cannot realize the ideal of an egalitarian society which I hope most of us aim at" Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically backward classes of people who unfortunately constitute the bull of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio economic revolution and to create a new socio economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights.
Parliament therefore amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield place to the former.
The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19.
Parliament in making this amendment was moved by the noble philosophy eloquently expressed in highly in spiring and evocative words.
full of passion and feeling.
by Chandrachud, J. (as he then was) in his judgment in Keshavananda Bharati 's case at page 991 of the Report 1 may quote here what Chandrachud, J. (as he then was) said on that, occasion, for it sets out admirably the philosophy which inspired Parliament in enacting the amendment in Article 31C The learned Judge said: "I have stated in the earlier part of my judgment that the Constitution accords a place of pride to Fundamental Rights and 334 a place of permanence to the Directive Principles.
I stand by what I have said.
The Preamble of our Constitution recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to "all its citizens", Justice Social, economic and political liberty and equality.
Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and without them a man 's reach will not exceed his grasp.
But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country.
What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual.
That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does not bear on their relative importance.
An equal right of men and women to an adequate means of livelihood; the right to obtain humane conditions of work ensuring a decent standard of life and full enjoyment of leisure, and raising the level of health and nutrition are not matters for compliance with the Writ of a Court.
As I look at the provisions of Parts IIl and IV, I feel no doubt That the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV.
A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a philosopher 's dream.
Therefore, article 37 enjoys the State to apply the Directive Principles in making laws.
The freedom of a few have them to be abridged in order to ensure the freedom of all.
It is in this sense that Parts, III and IV, as said by Granville Austin, together constitute "the conscience of the constitution".
The Nation stands today at the cross roads of history and exchanging the time honoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become "a mere rope of sand.
" If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish.
In order, therefore, to preserve their freedom, the privileged few must part with a portion of it.
" This is precisely what Parliament achieved by amending Article 3lC. Parliament made the amendment in Article 31C because it realised that "if the State fails to create conditions in which the fundamental freedoms could be enjoyed by all, the freedom of the few will be at 335 the mercy of then manly and then all freedoms will vanish" and "in order, therefore, to preserve their freedom, the privileged few must part with a portion of it.
" I find it difficult to understand how it can at all be said that the basic structure of the Constitution its affected when for evolving a modus vivandi.
for resolving a possible remote conflict between two constitutional mandates of equally fundamental character, Parliament decides by way of amendment of Article 31C that in case of such conflict, the constitutional mandate in regard to Directive Principles shall prevail over the constitutional mandate in regard to the Fundamental Rights under Articles 14 and 19.
The amendment in Article 31C far from damaging the basic structure of the Constitution strengthens and reenforces it by giving fundamental importance to the rights of the members of the community as against the rights of a few individuals and furthering the objective of the Constitution to build an egalitarian social order where there will be social and economic justice for all, every on including the low visibility areas of humanity in the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are cherished values will not remain merely the exclusive privileges of a few but become a living really for the many.
Additionally, this question may also be looked at from another point of view so far as the protection against violation, of Article 14 is concerned.
The principle of egalitarianism, as I said before, is an essential element of social and economic justice and, therefore, where a law is enacted for, giving effect to a Directive Principle with a view to promoting social and economic justice, it would not run counter to the egalitarian principle and would not therefore be violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense.
No law which is really and genuinely for giving effect to a Directive Principle can be inconsistent with the egalitarian principle and therefore the protection granted to it under the amended Article 31C against violation of Article 14 cannot have the effect of damaging the basic structure.
I do not therefore see how any violation of the basic structure is involved in the amendment of Article 31C.
In fact.
Once we accept the proposition laid down by the majority decision in Keshavananda Bharati 's case that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution and moreover in the order made in Waman Rao 's case on 9th May, 1980 this Court expressly held that the unamended Article 31C "does not damage any of the basic or essential features of the Constitution or its basic structure," and if that be so, it is difficult to appreciate how the amended 336 Article 31C can be said to be violative of the basic structure.
If the exclusion of the Fundamental Rights. embodied in Articles 14 and 19 could be legitimately made for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 without affecting the basic.
structure.
I fail to see why these Fundamental Rights cannot be excluded for giving effect to the other Directive Principles.
If the constitutional obligation in regard to the Directive Principles set out in clauses (b) and (c) of Article 39 could be given precedence over the constitutional obligation in regard to the Fundamental Rights under Articles 14 and 19, there is no reason in principle why such precedence cannot be given to the constitutional obligation in regard.
to the other Directive Principles which stand on the same footing.
It would, to my mind, be incongruous to hold the amended Article 31C invalid when the unamended Articles 31C has been held to be valid by the majority decision in Keshavananda Bharati 's case and by the order made on 9th May, 1980 in Waman Rao 's case.
Mr. Palkhiwala on behalf of the petitioners however contended that there was a vital difference between Article 31C as it stood prior to its amendment and the amended Article 31C, in as much as under the unamended Article 31C only certain categories of laws, namely, those enacted for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 were protected against challenge under Articles 14 and 19, while the position under the amended Article 31C was that practically every law would be immune from such challenge because it would be referable to one Directive Principle or the other and the result would be that the Fundamental Rights in Articles 14 and 19 would become meaningless and futile and would, for all practical purposes, be dead letter in the Constitution.
The effect of giving immunity to laws enacted for the purpose of giving effect to any one or more of the Directive Principles would, according to Mr. Palkhiwala, be in reality and substance to wipe out Articles 14 and 19 from the Constitution and that would affect the basic structure of the Constitution.
Mr. Palkhiwala also urge that the laws which were protected by the amended Article 31 C were laws for giving effect to the policy of the State towards securing any one or more of the Directive Principles and every law would be comprehended within this description since it would not be competent to the court to enter into questions of policy and determine whether the policy adopted in a particular law is calculated to secure any Directive Principle as claimed by the State.
The use of the words "law giving effect to the policy of the State", said Mr. Palkhiwala, introduced considerable uncertainty in the, yardstick with which to decide whether a particular law falls within the description in the 337 amended Article 31C and widened the scope and applicability of the A amended Article so as to include almost every law claimed by the State to all within such description.
This argument was presented by Mr. Palkhiwala with great force and persuasiveness but it does not appeal to me and I. cannot.
accept it.
It is clear from the Language of the amended Article 31C that the law which is protected from challenge under Articles 14 and 19 is law giving effect to the policy of the State towards securing all or any of this Directive Principles.
Whenever, therefore, any protection is claimed for a law under the amended Article 31C, it is necessary for the court to examine whether this law has been enacted for giving effect to the policy of the State towards securing any one or more of the Directive Principles and ii is only if the court is so satisfied as a result of judicial scrutiny, that the court would accord the protection of, the amended Article 31C to such law.
Now it is undoubtedly true that the words used in the amended Article are "law giving effect to the policy of the Stale", but the policy of the State which is contemplated there is the policy towards securing one or more of the Directive Principles.
It is the constitutional obligation of the State to secure the Directive Principles and that is the policy which the State is required to adopt and when a law is enacted in pursuance of this policy on implementing the Directive Principles and it seeks to give effect to a Directive Principle, it would, both from; the point of view of grammar and language, be correct to say that it is made for giving effect to the policy of the State towards securing such Directive Principle.
The words "law giving effect to the policy of the State" are not sc.
wide as Mr. Palkhiwala would have it, but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose on implementing or giving effect to one or more of the Directive Principles.
The Court before which, protection for a particular law is claimed under the amended Article 31C would therefore have to examine whether such law is enacted for giving effect to a Directive Principle, for then only it would have the protection of the amended Article 31C.
Now the question is what should be the test or determining whether a law is enacted for giving effect to a Directive Principle.
One thing is clear that a claim to that effect put forward by the State would have no meaning or value; it is the court which would have to determine the question.
Again it is not enough that there may be some connection between a provision of the law and a Directive Principle.
The concoction has to be between the law and the Directive Principle and it must be a real HE and substantial connection.
To determine whether a law satisfies this test, the court would have to examine the pith and substance, the true 338 nature and character of the law as also its design and the subject matter dealt with by it together with its object and scope.
If on such examination, the court finds that the dominant object of the law is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C.
But if the court finds that the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance.
One for accomplishing an unauthorised purpose unauthorised in the sense of not being covered by any Directive Principle, such law would not have the protection of the amended Article 31C. To take the illustration given by Khanna, J. in Keshavananda Bharati 's case ' at page 745 of the Report, "a law might be made that as the old residents in the State are economically backward and those who have not resided in the State for more than three generations have an affluent business in the Stale or have acquired property in the State they shall be deprived of their business and property with a view to vest the same in the old residents of the State.
" It may be possible, after performing what I may call an archaeological operation, to discover some remote the tenuous connection between such law and some Directive Principle, but the dominant object of such law would be, as pointed out by Mr H. M. Seeravi at Page 1559 of the second Volume of his book on "Constitutional Law of India", to implement "the policy of the State to discriminate against citizens who hail from another State, and in a practical sense, to drive them out of it", and such law would not be protected by the amended Article 31C. Many such examples can be given but I do not wish to unnecessarily burden this opinion.
The point I wish to emphasize is that the amended Article 31 does not give protection to a law which has merely some remote or tenuous connection with a Directive Principle.
What is necessary is that there must be a real and substantial connection and the dominant object of the law must be to give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim for protection under the amended Article 31C can be allowed.
There is also one other aspect which requires to be considered before protection can be given to a law under the amended Article 31C. Even where the dominant object of a law is to given effect to a Directive Principle.
it is not every provision af the law which is entitled to claim protection.
The words used in the amended Article 31C are: "Law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV" and these words, on a plain natural construction.
do not include all the provisions on the law but only those which give effect to the Directive 339 Principle.
But the question is how to identify these provisions giving effect to the Directive Principle in order to accord to them the protection of the amended Article 31C.
The answer to this question is analogically provided by the decision of this Court in Akadasi Padhan vs State of Orissa.
There the question was as to what was the precise connotation of the expression la relating to" a State monopoly which occurs in Article 19(6).
This Court held that "a law relating to" a State monopoly cannot include all the provisions contained in such law but it must be construed to mean, "the law relating to the monopoly in its absolutely essential features" and it is only those provisions of the law "which are basically and essentially necessary for creating the State monopoly" which are protected by Article 19(6).
This view was reiterated in several subsequent decisions of this Court which include inter alia Rashbihari Pande etc.
vs State of Orissa, Vrajla Manilal & Co. & ors vs State of Madhya Pradesh & Ors and R. C. Cooper vs Union of India.
I would adopt the same approach in the construction of Article 31C and hold that it is not every provision of a statute which , has been enacted with the dominant object of giving effect to a Directive Principle, that it entitled to protection.
but only those provisions of the statute which are basically and essentially necessary for giving effect to the.
Directive Principles are protected under the amended Article 31C. If there are any other provisions in the statute which do not fall within this category, they would not be entitled to protection and their validity would have to be judged reference to Articles 14 and 19.
Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31C only to those provisions.
The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle.
would depend, to a large extent, on how closely and integrally such provision is connected with the implementation on the Directive Principle.
If the court finds That a particular provision is subsidiary 340 or incidental or not essentially and integrally connected with the implementation of the Directive Principle or is of such a nature that, though seemingly a part of the general design of the main provisions of the statute, its dominant object is to achieve an unauthorised purpose, it would not enjoy the protection of the amended Article 31C and would be liable to be struck down as invalid if it violates.
Article 14 or 19 These considerations which I have discussed above completely answer some of the difficulties raised by Mr. Palkhiwala.
He said that if the amended Article 31C were held to be valid, even provision, like Section 23(e) and 24(1)(a) of the Bombay Prohibition Act, 1949 C which were struck down in State of Bombay vs F. N. Balsari as violating freedom of speech guaranteed under Article 19(1)(a), would have to be held to be valid.
I do not think that freedom and democracy in this country would be imperilled if such provisions were held valid.
In fact, after the amendment of Article 19(2) by the Constitution (First Amendment Act, 1951, it is highly arguable that both such provisions would fall within the protection of Article 19(2) and would be valid.
And even otherwise, it is difficult to see how any violation of the basic structure is involved if a provision of a law prohibiting a person from commending any intoxicant, the consumption or use of which is forbidden by the law (except under a licence issued by the State Government) is protected against infraction of Article 19(1)(a).
The position would perhaps be different if a provision is introduced in the Prohibition Act saying that no one shall speak against the prohibition policy or propagate for the repeal of the Prohibition Act or plead for removal of Article 47 from the Directive Principle.
Such a provision may not and perhaps would not be entitled to the protection of the amended Article 31C, even though it finds a place in the Prohibition Act, because its dominant object would not be to give effect to the Directive Principle in Article 47 but to stifle freedom of speech in respect of a particular matter and it may run the risk of being struck down as violative of Article 19(1)(a).
If the Court finds that even in a statute enacted for giving effect to a Directive Principle, there is a provision which is not essentially and integrally connected with the implementation of the Directive Principle or the dominant object of which is to achieve an unauthorised purpose, it would be outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19.
Lastly, I must consider the argument of Mr. Palkhiwala that almost any and every law would be within the protection of the 341 amended Article 31C because it would be referable to some Directive Principle or the other.
I think this is an argument of despair.
Articles 39 to 51 contain Directive Principles referring to certain specific objectives and in order that a law should be for giving effect to one of those Directive Principles.
there would have to be a real and substantial connection between the law and the specific objective set out in such Directive Principle.
Obviously, the objectives set out in these Directive Principles being specific and limited, every law made by a legislature in the country cannot possibly have a real and substantial connection with one or the other of these specific objectives.
It is only a limited number of laws which would have a real and substantial connection with one or the other of specific objectives contained in these Directive Principles and any and every law would not come within this category.
Mr. Palkhiwala then contended that in any event, the Directive Principle contained in Article 38 was very wide and it would cover almost any law enacted by a legislature.
This contention is also not well founded.
Article 38 is a general article which stresses the obligation of the State to establish a social order in which justice social, economic and political shall inform all the institutions of national life.
It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by itself this might cover a fairly wide area but it may be noted that the objective set out in the Article is not merely promotion of the welfare of the people, but there is a further requirement that the welfare of the people is to be promoted by the State, not in any manner it likes, not according to its whim and fancy, but for securing and protecting a particular type of social order and that social order should be such as would ensure social, economic and political justice for all.
Social, economic and political justice is the objective set out in the Directive Principle in Article 38 and it is this objective which is made fundamental in the governance of the country and which the State is laid under an obligation to realise.
This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the other Directive Principles.
The Directive Principles set out in the subsequent Articles following upon Article 38 merely particularise and set out facets and aspects of the ideal of social, economic and political justice articulated in Article 38.
Mr. Palkhiwala 's complaint was not directed against the use of the words 'political justice ' in Article 38 but his contention was that the concept of social and economic justice referred to in that Article was so wide that almost any legislation could come within it.
I do not agree.
The concept 342 of social and economic Justice may not be very easy of definition but its broad contours are to be found in some of the provisions of the Fundamental Rights and in the Directive Principles and whenever a question arises whether a legislation is for giving effect to social and economic justice, it is with reference to these provisions that the question would have to be determined.
There is nothing so vague or indefinite about the concept of social or economic justice that almost any kind of legislation could be justified under it.
Moreover, where a claim for protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive Principle, the Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle set out in Article 38, but would be one of the specific Directive Principles set out in the succeeding Articles, because as I said before, these latter particularise the concept of social and economic justice referred to in Article 38.
I cannot therefore subscribe to the proposition that if the Amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun and that would in effect and substance wipe out Articles 14 and 19 from, the Constitution.
This is a tall and extreme argument for which I find no justification in the provisions of the Constitution.
I would therefore declare Section 55 of the Constitution (Forty second Amendment) Act, 1976 which inserted sub sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament.
But so far as Section 4 of the Constitution (Forty second Amendment) Act, 1976 is concerned.
I hold that, on the interpretation placed on the amended Article 31C by me, it does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and I would therefore declare the amended Article 31C to be constitutional and valid.
I have also given my reasons in this judgment for subscribing to the order dated 9th May, 1980 made in Waman Rao 's case and this judgment ill so far as it sets out those reasons will be formally pronounced by me when Waman Rao 's case is set down on board for judgment.
| IN-Abs | Minerva Mills Ltd. is a limited company dealing in textiles.
On August 20, 1970 the Central Government appointed a committee under section IS of the Industries (Development Regulation) Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd as it was of the opinion that there had been or was likely to be substantial fall in the volume of production.
The said Committee submitted its report to the Central Government in January 1971, on the basis of which the Central Government passed an order dated October 19, 1971 under section 18A of the 1951 Act, authorising the National Textile Corporation Ltd., to take over the management of the Mills on the ground that its affairs are being managed in a manner highly detrimental to public interest.
This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974.
The petitioners challenged the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 and of the order dated October 19, 1971, the constitutionality of the Constitution (Thirty Ninth Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 in the Ninth Schedule to the Constitution, the validity of Article 31B of the Constitution and finally the constitutionality of sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976 on the ratio of the majority judgment in Kesavananda Bharati 's case, namely, though by Article 368 of the Constitution Parliament is given the power to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure.
Opining that sections 4 and 55 of the Constitution (Forty Second Amendment) Act are void and beyond the amending power of the Parliament, the Court by majority (Per Chandrachud.
C.J., on behalf of himself, A. Gupta.
N.L. Untwalia & P.S. Kailasam, JJ.) ^ HELD: (1) The newly introduced clause S of Article 368 transgresses the limitations on the amending power of Parliament and is hence unconstitutional.
It demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any "limitation whatever".
No constituent power can conceivably go higher than the sky high power conferred by clause (5), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy.
207 and substitute for it a totally antithetical form of Government.
That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals.
The power to destroy is not a power to amend.
[240C E] Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of Indian Constitution and therefore, the limitations on that power cannot be destroyed.
In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.
[240E G] Smt.
Indira Nehru Gandhi vs Raj Narain, , followed.
(2) The newly introduced clause (4) of Article 368 is equally unconstitutional and void because clauses (4) and (5) are inter linked.
While clause (5) purports to remove all limitations on the amending power, clause (4) deprives the courts of their power to call in question any amendment of the Constitution.
[241E F] Indian Constitution is founded on a nice balance of power among the three wings of the State namely, the Executive, the Legislature and the Judiciary.
It is the function of the Judges, may their duty, to pronounce upon the validity of laws.
If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water.
A controlled Constitution will then become uncontrolled.
Clause (4) of Article 368 totally deprives the citizens of one of the most valuable modes of redress which is guaranteed by Article 32.
The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction is a transparent case of transgression of the limitations on the amending power.
[241H, 242A] If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts will be powerless to strike down.
Article 13 of Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge.
[242A C] (3) Though it is the settled practice of the Supreme Court not to decide academic questions and the Court has consistently taken the view that it will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, it is difficult to uphold the preliminary objection to the consideration of the question raised by the petitioners as regards the validity of sections 4 and 55 of the Forty second Amendment.
In the instant case, the question raised as regards the constitutionality of sections 4 and 55 of the Forty Second Amendment is not an academic or a hypothetical question.
Further an order has been passed against the petitioners under section 18A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved.
[248C, E G] 208 Besides, there is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration.
Here, in view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position.
Secondly, what the court is dealing with is not an ordinary law which may or may not be passed so that it could be said that the court 's jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners.
What the court is dealing with is a constitutional amendment which has been brought into operation and which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes.
[248G, 249A B] Commonwealth of Massachusetts vs Andrew W. Mellon, 67 Lawyers ' Edition, 1078, 1084; George Ashwander vs Tennessee Valley Authority, 80 Lawyers ' Edition, 688, 711, quoted with approval.
(4) The answer to the question whether in view of the majority decision in Kesavananda Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights, must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive Policy, are essential features of the basic structure of the Constitution.
It is only if the rights conferred by these two articles are not a part of the basic structure of the Constitution that they can be allowed to be abrogated by a constitutional amendment.
If they are a part of the basic structure, they cannot be obliterated.
out of existence in relation tn a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever.
This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Keshavananda Bharati, not permissible to the Parliament.
[249E H] (5) The importance of Directive Principles in the scheme of our Constitution cannot ever be over emphasized.
Those principles project the high ideal which the Constitution aims to achieve.
In fact Directive Principles of State Policy are fundamental in governance of the country and there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations.
But to destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.
Fundamental rights occupy a unique place in the lives.
of civilized societies and have been variously described as "transcendental", "inalienable" and "primordial" and as said in Kesavananda Bharati they constitute the ark of the Constitution.
[250B C, 254H, 255A] The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution.
Parts III and IV are like two wheels of a chariot, one no less important than the other.
Snap one and the other will lose its efficacy.
They are like a twin formula for achieving the social revolution which is the ideal which the visionary founders of the Constitution set 209 before themselves.
In other words, the Indian Constitution is founded on the bed rock of the balance between Parts III and IV.
To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
[255B D] The edifice of Indian Constitution is built upon the concepts crystallized in the Preamble.
Having resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice social, economic and political, Part IV has been put into our Constitution containing directive principles of State Policy which specify the socialistic goal to be achieved.
Having promised the people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved, Part III has been put in our Constitution, conferring those rights on the people.
Those rights are not an end in themselves but are the means to an end.
The end is specified in Part IV.
Therefore, the rights conferred by Part III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended.
But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if tho price to be paid for achieving that ideal is human freedoms.
One of the faiths of our founding fathers was the purity of means.
The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III.
It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience.
Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.
[253D H, 256A B] (5A) on any reasonable interpretation, there can be no doubt that by the amendment introduced by section 4 of the Forty Second Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law is in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State Policy.
[256D E] (6) No doubt, it is possible to conceive of laws which will not attract Article 31C, since they may not bear direct and reasonable nexus with the provisions of Part IV.
However, a large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV.
In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn.
It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of Article 31C. [256E H] (7) A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can.
The fact, therefore that some laws may fall outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution.
[256H, 257A B] 210 (8) Article 38 provides that the State shall 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 political, shall inform all the institutions of the national life.
It is not correct that all the Directive Principles of State Policy contained in Part TV eventually verge upon Article 38.
Article 38 undoubtedly contains a broad guideline, but the other Directive Principles are not mere illustrations of the principle contained in Article 38.
Secondly, if it be true that no law passed for the purpose of giving effect to the Directive principle in Article 38 can damage or destroy the basic structure of the Constitution, there was no necessity and more so the justification, for providing by a Constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14 and 19.
[257C F] The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6).
Laws which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights.
It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that Article 31C was amended to say that the provisions of Article 19, inter alia cannot be invoked for voiding the laws of the description mentioned in Article 31C. [257F G] (9) Articles 14 and 19 do not confer any fanciful rights.
They confer rights which are elementary for the proper and effective functioning of a democracy They are universally so regarded, as is evident from the Universal Declaration of Human Rights.
If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass Article 32 will be drained of its life blood.
[257G H, 258A] Section 4 of the Forty Second Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32.
The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification.
By a long series of decisions the Supreme Court has held that Article 14 forbids class legislation but it does not forbid classification.
The purpose of withdrawing the protection of Article 14, therefore, can only be to acquire the power to enact class legislation.
Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens.
Already, there are disturbing trends on a part of the Indian horizon.
Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India.
The nature and quality of the amendment introduced by section 4 of the Forty Second Amendment is, therefore, such that it virtually tears away the heart of basic fundamental freedoms.
[258B E] Article 31C speaks of laws giving effect to the policy of the "State".
Article 12 which governs the interpretation of Article 31C provides that the word "State" in Part III includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other 211 authorities within the territory of India or under the control of the Government of India.
Wide as the language of Article 31C is, the definition of the word "State" in Article 12 gives to Article 31C an operation of the widest amplitude.
Even if a State Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of Articles 14 and 19.
The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.
[258E G] (10) The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone.
They are common to all polities, democratic or authoritarian.
Every State is goal oriented and claims to strive for securing the welfare of its people.
The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19.
Those are the most elementary freedoms without which a free democracy is impossible and which must, therefore, be preserved at all costs.
If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment.
[259A D] (11) The device of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one 's liking to have been passed.
Article 31C cannot be read down so as to save it from the challenge of unconstitutionality because to do so will involve a gross distortion of the principle of reading down depriving that doctrine of its only or true rationale when words of width are used inadvertently one must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment.
[259E G] If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited.
The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature.
In the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends.
In fact, reading down Article 31C so as to make it conform to the ratio of the majority decision in Kesavananda Bharati is to destroy the avowed purpose of Article 31C as indicated by the very heading "Saving of certain laws" under which Articles 31A, 31B and 31C are grouped.
Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it is impossible to hold that the court should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.
[259H, 280A C] (12) Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that Article.
It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violates Article 14 or Article 19.
It would be sheer 212 adventurism of a most extraordinary nature to undertake such a kind of judicial enquiry.
[260F G] (13) In the very nature of things it is difficult for a court to determine whether a particular law gives effect to a particular policy.
Whether a law is adequate enough to give effect to the policy of the State towards securing a directive principle is always a debatable question and the courts cannot set aside the law as invalid merely because, in their opinion, tho law is not adequate enough to give effect to a certain policy.
The power to enquire into the question whether there is a direct and reasonable nexus between the provisions of a law and a Directive Principle cannot confer upon the Courts the power to sit in Judgment over the policy itself of the State.
At the highest, courts can, under Article 31C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a Directive Principle.
If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow.
Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharti were agreed, it is this: that the only question open to judicial review under tho unamended Article 31C was whether there is a direct and reasonable nexus.
between the impugned law and tho provisions of Articles 39(b) and (c).
Reasonableness is evidently regarding the nexus and not regarding the law.
The. attempt therefore to drape Article 31C into a democratic outfit under which an extensive judicial review would be permissible must fail.
[260H, 261A E] (14) The avowed purpose of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any "limitation whatever".
Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content.
[261F G] (15) Article 31A(1) can be looked upon as a contemporaneous practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C.
Besides there is a significant qualitative difference between the two Articles.
Article 31A, the validity of which has been recognised over the years, excludes the challenge under Articles 14 and 19 in regard to a specified category of laws.
If by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonable in public interest, the basic framework of the constitution may remain unimpaired.
If the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a 'parchment in a glass case ' to be viewed as a matter of historical curiosity [262A C] (16) There is no merit in the contention that since article 31A was also upheld on the ground of state decisis.
article 31C can be upheld on the same ground.
The five matters which are specified in Article 31A are of such quality, nature, content and character that at least a debate can reasonably arise whether abrogation of fundamental rights in respect of those matters will damage or destroy the basic structure of the Constitution.
Article 31C does not deal with specific subjects.
The directive principles are couched in broad and ' general terms for the simple reason that they specify the goals to be achieved.
The principle of state decisis cannot be treated as a fruitful source of perpetuating curtailment of human freedoms.
No court has upheld the validity of Article 31A on the ground that it does not violate the basic structure of the Constitution.
There is no decision on the validity of Article 31A which can be looked upon as a measuring rod of the extent of the amending power.
To 213 hark back to Article 31A every time that a new constitutional amendment is challenged is the surest means of ensuring a drastic erosion of the Fundamental Rights conferred by Part III.
Such a process will insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda Bharati regarding the inviolability of the basic structure.
That ratio requires that the validity of each new constitutional amendment must be judged on its own merits.
[262C G] (17) It is not correct to say that when Article 31A was upheld on the ground of state decisis, what was upheld was a constitutional device by which a class of subject oriented laws was considered to be valid.
The simple ground on which Article 31A was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the years and, therefore, it was not permissible to challenge its constitutionality.
The principle of stare decisis does not imply the approval of the device.
Or mechanism which is employed for the purpose of framing a legal or constitutional provision.
[262G H, 263A B] (18) Under clauses (2) to (6) of Article 19, restrictions can be imposed only if they are reasonable and then again, they can be imposed in the interest of a stated class of subjects only.
It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject.
Apart from other basic dissimilarities, Article 31C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses (2) to (6) of Article 19.
Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law.
[263B D] Three Articles of the Indian Constitution and only three stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power.
They are Articles 14, 19 and 21.
Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.
[263D E] Per Bhagwati, J. (concurring) (1) Since the question in regard to the constitutional validity of the amendment made in Article 31C did not arise in the writ petitions and the counter affidavits, it was wholly academic and superfluous to decide it.
Once it is conceded that Articles 31A, 31B and the unamended Article 31C are constitutionally valid it became wholly unnecessary to rely on the unamended Article 31 in support of the validity of Sick Textiles Undertaking (Nationalisation) Act, 1974 because Article 31B would, in any event, save it from invalidation on the ground of infraction of any of the fundamental rights.
[268F H] (2) Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principles set out in Article 39 clause (b) as declared in section 39 of the Act or it was not such a law and the legislative declaration contained in section 39 was a colourable device If it was the 214 former then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles 14, 19 and 31 and it would be unnecessary to involve the amended Article 31C and if it was the latter, then neither the unamended nor the amended Article 31C would have any application.
Thus in either event, the amended Article 31C would have no relevance at all in adjudicating upon the constitutional validity of the Nationalisation Act.
In these circumstances, the court could not be called upon to examine the constitutionality of the amendment made in Article 31C. [269B E] Dattatraya Govind Mahajan v State of Maharashtra, ; , followed.
(3) Clause (4) of Article 368 of the Constitution is unconstitutional and void as damaging the basic structure of the Constitution.
[288E] The words "on any ground" in clause (4) of Article 368 are of the widest amplitude and they would obviously cover even a ground that the procedure prescribed in clause (2) and its proviso has not been followed.
The result is that even if an amendment is purported to have been made without complying with the procedure prescribed in sub clause (2) including its proviso, and is therefore unconstitutional, it would still be immune from challenge.
[284F F] As per Kesavananda Bharati 's case any amendment of the Constitution which did not conform to the procedure prescribed by sub clause (2) and its proviso was no amendment at all and a court would declare it invalid.
Thus if an amendment was passed by a simple majority in the House of the People and the Council of States and the President assented to the amendment, it would, in law, be no amendment at all because the requirement of clause (2) is that it should be passed by a majority of each of the Houses separately and by not less than two third of the Members present and voting.
But if clause (4) was valid it would become difficult to challenge the validity of such an amendment and it would prevail though made in defiance of a mandatory constitutional requirement.
Clause (2) including its proviso would be rendered completely superfluous and meaningless and its prescription would become merely a paper requirement.
Moreover, apart from nullifying the requirements of clause (2) and its proviso, clause (4) has also the effect of rendering an amendment immune from challenge even if it damages or destroys the basic structure of the Constitution and is, therefore, outside the amending power of Parliament.
So long as clause (4) stands, an amendment of the Constitution, though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati 's case, would be unchallengeable in a court of law.
The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non existent and it would not be incorrect to say, for covertly and indirectly by the exclusion of judicial review the amending power of Parliament would stand enlarged contrary to the decision of this Court in Kesavananda Bharati 's case.
This would, undoubtedly, damage the basic structure of the Constitution because there are two essential features of the basic structure which would be violated, namely, the limited amending power of the Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers.
[284F H, 285A D] Our Constitution is a controlled constitution which confers powers on the various authorities created and recognised by it and defines the limits of those 215 powers.
The Constitution is suprema lex, the paramount law of the land and there is no authority, no department or branch of the State which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution.
The Constitution has devised a structure of power relationship which checks and balances and limits are placed on the powers of every authority of instrumentality under the Constitution.
Every organ of the State, be it the Executive or the Legislature or the Judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.
Parliament too is a creature of the Constitution and it can only have such powers as are given to it under the Constitution.
It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred.
Parliament cannot in exercise of this power so amend the Constitution as to alter its basic structure or to change its identity.
Now, if by constitutional amendment, Parliament was granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity.
Therefore, the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment was enlarged into an unlimited power the entire character of the Constitution would be changed.
It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and, hence, outside the amendatory power of Parliament.
[285E H, 286A C] It is a fundamental principle of our Constitution that every organ of the State, every authority under the Constitution derives its powers from the Constitution and has to act within the limits of such power.
The three main departments of the State amongst which the powers of Government are divided are: the Executive, the Legislature and the Judiciary.
Under our Constitution there is no rigid separation of powers but there is a broad demarcation though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable.
The Constitution has created an independent machinery, namely, the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the Legislature.
It is a solemn duty of the judiciary under the Constitution to keep the different organs of the State, such as the Executive and the Legislature, within the limits of the power conferred upon them by the Constitution.
This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution.
[286D, E, 287B C].
It is a cardinal principle of our Constitution that no one, howsoever highly placed and no authority however lofty, can claim to be the sole judge of its power under the Constitution or whether its actions are within the confines of such power laid down by the Constitution.
The judiciary is the interpreter of the Constitution and the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.
It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations.
That is the essence of the rule of law, which inter alia requires that "the exercise of powers by 216 the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law".
The power of the judicial review is an integral part of our constitutional system and without it, there will be no Government of Laws and the rule of law would become a teasing illusion and a promise of unreality.
If there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably a part of the basic structure of the Constitution.
However, effective alternative institutional mechanism arrangements for judicial review cannot be made by Parliament.
Judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.
If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.
So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and effect the basic constructure of the Constitution.
[287F H, 288A E] (4) Clause (5) of Article 368 of the Constitution is unconstitutional and void.
[289E F] After the decisions of Kesavananda Bharati 's case and Smt.
Indira Gandhi 's case there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist.
What clause (5) really sought to do was to remove the limitation on the amending power of Parliament and correct it from a limited power into an unlimited one.
This was clearly and indubitably a futile exercise on the part of the Parliament.
[288G H, 289A] The Constitution has conferred only a limited amending power on Parliament, so that it cannot damage or destroy the basic structure of the Constitution and Parliament by exercise of that limited amending power convert that very power into an absolute and unlimited power.
If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment.
Parliament having a limited power of amendment cannot get rid of the limitation of exercising that very power and convert it into an absolute power.
Clause (5) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute, therefore, is outside the amending power of Parliament.
However, clause (5) seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which is itself an essential feature of the Constitution and it is, therefore, violative of the basic structure.
[289B E] 217 Per contra: (5) Section 4 of the Constitution (Forty second Amendment) Act, 1976 making amendments in Article 31C and giving primacy to Directive Principles over Fundamental Rights, in case of conflict between them, does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and therefore amended Article 31C is constitutional and valid.
[342E F].
(i) It is not correct to say that Fundamental Rights alone are based on Human Rights while Directive Principles fall in some category other than Human Rights.
Fundamental Rights and Directive Principles cannot be fitted in two distinct and strictly defined categories.
Broadly stated, Fundamental Rights represent civil and political rights, while Directive Principles embody social and economic rights.
Both are clearly part of broad spectrum of human rights.
Even, the universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10th December, 1948 contains not only rights protecting individual freedom (Articles 1 to 21) but also social and economic rights intended to ensure socio economic justice to every one (Articles 22 to 29).
The two other International Covenants adopted by the General Assembly for securing human rights, namely, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are also to the same effect.
The socio economic rights embodied in the Directive Principles are as much a part of human rights as the Fundamental Rights.
Together, they are intended to carry out the objectives set out in the preamble of the Constitution and to establish an egalitarian social order informed with political, social and economic justice and ensuring dignity of the individual not only to a few privileged persons but to the entire people of the country including the have nots and the handicapped, the lowliest and the lost.
[320C H] Kesavananda Bharati vs State of Kerala, [1973] Supp.
SCR, referred to.
(ii) Although Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, there was no such demarcation made between them during the period prior to the framing of the Constitution.
From the point of view of importance and significance, no distinction was drawn between justiciable and non justiciable rights by the Fathers of the Constitution and both were treated as forming part of the rubric of Fundamental Rights, the only difference being that whereas the Fundamental Rights were enforceable in Courts of Law, the Directive Principles of social policy were not to be enforceable.
[321A B, 322C D] (iii) To limit the potential of Fundamental Rights on the ground that they are merely negative obligations requiring the State to abstain as distinct from taking positive action is impermissible.
[323D C] No doubt, it is said that the Fundamental Rights deal with negative obligations of the State not to encroach on individual freedom, while the Directive principles impose positive obligations on the State to take certain kind of actions.
Though the latter part may be true that the Directive Principles require positive action to be taken by the State, it is not wholly correct that the Fundamental Rights impose only negative obligations on the State.
There are a few Fundamental Rights which have also a positive content, with the result that new dimensions of the Fundamental Rights are being opened up by the Supreme Court and the entire jurisprudence of Fundamental Rights is in a 218 stage of resurgent evaluation.
Moreover, there are three Articles, namely, Article 15(2), Article 17 and Article 23 within the category of Fundamental Rights which are designed to protect the individual against the action of other private citizens and seem to impose positive obligations on the State to ensure this protection to the individual.
[322 F H, 323 A B].
Hussainara Khatoon vs State of Bihar, ; Madhav Hayawadanrao Hoskot vs State of Maharashtra, ; and Sunil Batra etc.
vs Delhi Administration & Ors.
; , , followed.
(iv) The only distinguishing feature between Fundamental Rights and Directive Principles of State Policy is that whereas the former are made enforceable in a Court of Law the latter are not.
They are not justiciable be cause the social and economic rights and other matters dealt with in the Directive Principles are by their very nature incapable of judicial enforcement and moreover, the implementation of many of those rights would depend on the.
state of economic development in the country, the availability.
Of necessary finances and the government 's assessment of priority of objectives and values.
But merely because the Directive Principles are non justiciable, it does not follow that they are in any way subservient or inferior to the Fundamental Rights.
[323 B C, E F].
(v) The Indian Constitution is first and foremost a social document.
The majority of its provisions are either directly aimed at furthering the goals cf the socio economic revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement.
The Fundamental Rights are no doubt important and valuable in a democracy, but there can be no real democracy without social and economic justice to the common man and to create socio economic conditions in which there can be social and economic justice to everyone, is the theme of the Directive Principles.
It is the Directive Principles which nourish the roots of a democracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not remain merely a political democracy but also becomes a social and economic democracy with Fundamental Rights available to all irrespective of their power, position or wealth.
The dynamic provisions of the Directive Principles fertilise the static provisions of the Fundamental Rights.
The object of the Fundamental Rights is to protect individual liberty, but individual liberty cannot be considered in isolation from the socio economic structure in which it is to operate.
There is a real connection between individual liberty and the shape and form of the social and economic structure of the society.
There cannot be any individual liberty at all for the large masses of people who are suffering from want and privation and who are cheated out of their individual rights by the exploitative economic system.
Their individual liberty would come in conflict with the liberty of the socially and economically more powerful class and in the process get mutilated or destroyed.
The real controversies in the present day society are not between power and freedom but between one form of liberty and another.
Under the present socio economic system, it is the liberty of the few which is in conflict with the liberty of the many.
The Directive Principles, therefore, impose an obligation on the State to take positive action for creating socio economic conditions in which there will be an egalitarian social order with social and economic justice to all so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the 219 country.
Thus, the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the framework of the socio economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people, who do not have even the bare necessities of life and who are living below the poverty level.
[323F G, 324C H, 325A B].
(vi) Article 37 of the Constitution is an Article of crucial importance unlike the Irish Constitution which provided the inspiration for introducing Directive Principles in our Constitution.
Article 37 says that the Directive Principles shall not be enforceable by any court, makes the Directive Principles fundamental in the governance of the country and enacts that it shall be the duty of the State to apply the Directive Principles in making laws.
The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis of this provision, fundamentally altering the significance and efficacy.
The Directive Principle are not excluded from the cognizance of the court, as under the Irish Constitution; they are merely made non enforceable by a court of law.
Merely because the Directive Principles are not enforceable in a court of law, it does not mean that they are of subordinate importance to any part of the Constitution or that they cannot create obligations or duties binding on the State.
The crucial test which has to be applied is whether the Directive Principles impose any obligations or duties on the State, if they do, the State would be bound by a constitutional mandate to carry out such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law.
On this question Article 37 is emphatic and make the point in no uncertain terms There could not have been more explicit language used by the Constitution makers to make the Directive Principles binding on the State and there can be no doubt that the State is under a constitutional obligation to carry out this mandate contained in Article 37.
In fact, non compliance with the Directive Principles would be unconstitutional on the part of the State and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile.
For the purpose of the Directive Principles, the "State" has the same, meaning as given to it under Article 13 for the purpose of the Fundamental Rights.
This would mean that the same State which is injuncted from taking any action in infringement of the Fundamental Rights is told in no uncertain terms that it must regard the Directive Principles as fundamental in the governance of the country and is positively mandated to apply them in making laws.
This gives rise to a paradoxical situation and its implications are far reaching.
The State is on the one hand prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any Fundamental Right and at the same time it is directed by the constitutional mandate in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving effect to the Directive Principles.
Both are constitutional obligations of the State.
When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a higher pedestal and have precedence over Directive Principles.
But it is not correct to say that under 220 our constitutional scheme Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights.
Both are in fact equally fundamental and the courts have, therefore, tried to harmonise them by importing the Directive Principles in the construction of the Fundamental Rights.
For the purpose of determining the reasonableness of the restriction imposed on Fundamental Rights the court may legitimately take into account the Directive Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the restriction imposed by it on a Fundamental Right may be presumed to be reasonable.
[325C, E H, 326A D, 327H, 328A H, 329A B].
State of Bihar vs Kameshwar Singh, ; Pathumma vs State of Kerala, ; ; M/s. Kasturi Lal Lakshmi Reddy etc.
vs The State of Jammu & Kashmir & Anr., [1980] 3 SCR p. 1338, applied.
State of Madras vs Champkam Dorairajan, dissented from.
In Re Kerala Education Bill, [1959] SCR 995, Referred to.
(vii) If a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest.
So also where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice.
The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle.
If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice, such law does not violate the principle of egalitarianism and is in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude.
In the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice, would not infringe any Fundamental Right under Article 14 or 19.
This being the correct interpretation of the constitutional provisions, the amended Article 31C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a Directive Principle, so that needlessly futile and time consuming controversy whether such law contravenes Article 14 or 19 is eliminated.
The amended Article 31C cannot in the circumstances be regarded as violative of the basic structure of the Constitution.
[329F H, 330A F].
(viia) A law enacted really and genuinely for giving effect to a Directive Principle, in discharge of the constitutional obligation laid down upon the State under Article 37, would not be invalid, because it infringes a fundamental right.
If the Court takes the view that it is invalid, it would be placing Fundamental Rights above Directive Principles, a position not supported at all by 221 the history of their enactment as also by the constitutional scheme.
The two A constitutional obligations, one in regard to Fundamental Rights and the other in regard to Directive Principles, are of equal strength and merit and there is no reason why, in case of conflict, the former should be given precedence over the latter.
Whether or not a particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal than the other.
The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws.
It would amount to refusal to give effect to the words fundamental in the governance of the country" and a constitutional command which has been declared by the Constitution to be fundamental would be rendered non fundamental.
The result would be that a positive mandate of the constitution commanding the State to make a law would be defeated by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional.
This plainly would be contrary to the constitutional scheme because the Constitution does not accord higher place to the constitutional obligation in regard to Fundamental Rights over the constitutional obligation in regard to Directive Principles and does not say that the implementation of the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights.
[330A, 331A F].
Karimbil Kunhikoman vs State of Kerala, [1962] I SCR 319 (supra) referred to.
(viii) It is not correct to say that consequent to the amendment of Article 31C the Constitution is now made to stand 'on its head and not on its legs. ' Prior to the amendments, Fundamental Rights had a superior or a higher position in the constitutional scheme than Directive Principles and there is accordingly no question at all of any subversion of the constitutional structure by the amendment.
There can be no doubt that the intention of the Constitution makers was that the Fundamental Rights should operate within the socioeconomic structure or a wider continuum envisaged by the Directive Principle, for then only would the Fundamental Rights become exercisable by all and a proper balance and harmony between Fundamental Rights and Directive Principles secured.
The Constitution makers, therefore, never contemplated that a conflict would arise between the constitutional obligation in regard to Fundamental Rights and the constitutional mandate in regard to Directive Principles.
But if a conflict does arise between these two constitutional mandates of equal fundamental character, since the Constitution did not provide any answer and perhaps for the reason that such a situation was not anticipated, the problem had to be solved by Parliament and some modus operandi had to be evolved in order to eliminate the possibility of conflict howsoever remote it might be.
[331G H, 332A D].
Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically 222 backward classes of people who unfortunately constitute the bulk of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio economic revolution and to create a new socio economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights.
Parliament, therefore, amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield place to the former.
The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19.
[333C F].
Parliament made the amendment in Article 31C because it realised that "if the State fails to create conditions in which the fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the man and then all freedoms will vanish" and "in order, therefore, to preserve their freedom, the privileged few must part with a portion of it." Therefore, it cannot at all be said that the basic structure af the Constitution is affected when for evolving a modus vivandi for resolving a possible remote conflict between two constitutional mandates of equally fundamental character, Parliament decides by way of amendment of Article 31C that in case of such conflict the constitutional mandate in regard to Directive Principles shall prevail over the constitutional mandate in regard to the Fundamental Rights under Articles 14 and 19.
The amendment in Article 31C far from damaging the basic structure of the Constitution strengthens and re enforces it by giving fundamental importance to the rights of the members of the community as against the rights of a few individuals and furthering the objective of the Constitution to build an egalitarian social order where there will be social and economic justice for all, every one including the low visibility areas of humanity in the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are cherished values will not remain merely the exclusive privileges of a few but become a living reality for the many [334H, 335A D].
(ix) The principle of egalitarianism is an essential element of social and economic justice and, therefore, where a law is enacted for giving effect to a Directive Principle with a view to promoting social and economic justice, it would not run counter to the egalitarian principle and would not therefore be violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense.
No law which is really and genuinely for giving effect to a Directive Principle can be inconsistent with the egalitarian principle and therefore the protection granted to it under the amended Article 31C against violation of Article 14 cannot have the effect of damaging the basic structure.
Therefore, there is no violation of the basic structure involved in the amendment of Article 31C.
In fact, one it is accepted that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution, it cannot be said that the amended Article 31C is violative of the basic structure.
If the exclusion of the Fundamental Rights embodied in Articles 14 and 19 could be legitimately made for giving effect to the Directive Principles set out in clauses (b) and (e) of Article 39 without affecting the basic structure.
these 223 Fundamental Rights cannot be excluded for giving effect to the other Directive Principles.
If the constitutional obligation in regard to the Directive Principles set out in clauses (b) and (c) of Article 39 could be given precedence over the constitutional obligation in regard to the Fundamental Rights under Articles 14 and 19, there is no reason in principles why such precedence cannot be given to the constitutional obligation in regard to the other Directive Principles which stand on the same footing.
It would be incongruous to hold tho amended Article 31C invalid when the unamended Article 31C has been held to be valid by the majority decision in Kesavananda Bharati 's and by the order, in Waman Rao 's case, dated 9th May, 1980.
[335E H, 336A C].
(x) It is clear from the language of the amended Article 31C that the law which is protected from challenge under Articles 14 and 19 is law giving effect to the policy of the State towards securing or any of the Directive Principles.
Whenever, therefore, any protection is claimed for a law under the amended Article 31C, it is necessary for the Court to examine whether the law has been enacted for giving effect to the policy of the State towards securing any one or more of the Directive Principles and it is only if the court is so satisfied as a result of judicial scrutiny that the court would accord the protection of the amended Article 31C to such law.
Now it is undoubtedly true that the words used in the amended Article are "law giving effect to the policy of the State" but the policy of the State which is contemplated there is the policy towards securing one or more of the Directive Principles it is the constitutional obligation of the State to secure the Directive Principles and that is the policy which the State is required to adopt and when a law is enacted in pursuance of this policy of implementing the Directive Principles and it seeks to give effect to a Directive Principle, it would both from the point of grammar and language, be correct to say that it is made for giving effect to the policy of the State towards securing such Directive Principle.
The words "law giving effect to the policy of the State" are not so wide but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose of implementing or giving effect to one or more of the Directive Principles.
[337A F].
(xi) The Court before which protection for a particular law is claimed under the amended Article 31C would, therefore, have to examine whether such law is enacted for giving effect to a Directive Principle, for genuinely it would have the protection of the amended Article 31C.
A claim that a particular law is enacted for giving effect to Directive Principles put forward by the State would have no meaning or value; it is the court which would have to determine the question.
Again it is not enough that there may be some connection between a provision of the law and a Directive Principle.
The connection has to be between the law and the Directive Principle and it must G be a real and substantial connection.
To determine whether a law satisfies this test, the court would have to examine the pith and substance, the true nature and character of the law as also its design and the subject matter dealt with by it together with its object and scope.
If on such examination, the court finds that the dominant object of the law is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C.
But if the court finds that the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance, one for accomplishing an unauthorised purpose unauthorised in the sense of not being covered by any Directive Principle such law would not have the protection of the amended Article 31C.
The amended Article 31C does not give protection to 224 a law which has merely some remote or tenuous connection with a Directive.
Principle.
What is necessary is that there must be a real and substantial connection and the dominant object of the law must be to give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim for protection under the amended Article 31C can be allowed.
[337F H, 338A B, F G].
The words used in the amended Article 31C are: "law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV" and these words on a plain natural construction do not include all the provisions of law but only those which give effect to the Directive Principle.
Therefore, it is not every provision of a statute which has been enacted with the dominant ' object of giving effect to a Directive Principle that is entitled to protection but only those provisions of the statute which are basically and essentially necessary for giving effect to the Directive Principles are protected under the amended Article 31C. If there are any other provisions in the statute which do not fall within this category, they would not be entitled to protection and their validity would have to be judged by reference to Articles 14 and 19.
Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31C only to those provisions.
The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle, would depend, to a large extent, on how closely and integrally such provision is connected with the implementation of the Directive Principle.
If the court finds that a particular provision is subsidiary or incidental or not essentially and integrally connected with the implementation of the Directive Principle or is of such a nature that though seemingly a part of the general design of the main provisions of the statute, the dominant object is to achieve an unauthorised purpose, it would not enjoy the protection of amended Article 31C and would be liable to be struck down as invalid if it violates Article 14 or 19.
[338 G H, 339A, D H, 340A D] Akadasi Padhan vs State of Orissa, [1963] 2 Supp.
SCR 691; Rashbihari Panda etc.
vs State of orissa; , ; M/s. Vrailal Manilal & Co. & ors.
vs State of Madhya Pradesh & Ors.
, ; and R. C. Cooper vs Union of India, ; , followed.
(xii) If the Court finds that even in a statute enacted for giving effect to a Directive Principle, there is a provision which is not essentially and integrally connected with the implementation of the Directive Principle or the dominant object of which is to achieve an unauthorised purpose it would be outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19.
[340F H] (xiii) Articles 39 to 51 contain Directive Principles referring to certain specific objectives and in order that a law should be for giving effect to one of those Directive Principles, there would be a real and substantial connection between the law and the specific objective set out in such Directive Principle.
Obviously, the objectives set out in these Directive Principles being specific and limited, every law made by a legislature in the country cannot possibly have a real and substantial connection with one or the other of these specific 225 objectives.
It is only a limited number of laws which would have a real A and substantial connection with one or the other of the specific objectives contained in these Directive Principles and any and every law would not come within this category.
[341A C].
(xiv) Article 38 is a general article which stresses the obligation of the State to establish a social order in which justice social, economic and political shall inform all the institutions of national life.
It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by itself this might cover a fairly wide area but the objective set out in the Article is not merely promotion of the welfare of the people? but there is a further requirement that the welfare of the people is to be promoted by the State, not in any manner it likes, not according to its whim and fancy, but for securing and protecting a particular type of social order and that social order should be such as would ensure social, economic and political justice for all.
Social, economic and political justice is the objective set out in the Directive Principle in Article 38 and it is this objective which is made fundamental in the governance of the country and which the State is laid under an obligation to realise.
This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the other Directive Principles.
The Directive Principles set out in the subsequent Articles following upon Article 38 merely particularise and set out facets and aspects of the ideal of social, economic and political justice articulated in Article 38.
[341C G].
(xv) The concept of social and economic justice may not be very easy of definition but its broad contours are to be found in some of the provisions of the Fundamental Rights and in the Directive Principles and whenever a question arises whether a legislation is for giving effect to social and economic justice, it is with reference to these provisions that the question would have to be determined.
There is nothing so vague or indefinite about the concept of social or economic justice that almost any kind of legislation could be justified under it.
Moreover, where a claim for protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive Principle, the Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle set out in Article 38, but could be one of the specific Directive Principles set out in the succeeding Articles because these latter particularise the concept of social and economic justice referred to in Article 38.
Therefore, it is not correct to say that if the amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun and that would in effect and substance wipe out Articles 14 and 19 from the Constitution.
This is a tall and extreme argument, not justified in the provisions of the Constitution.
[341H, 342A D].
HELD further (concurring with the majority): 6. Clause (a) of Article 31A is constitutionally valid even on the application of the basic structure test.
[290D].
Where any law is enacted for giving effect to a Directive Principle with the view to furthering the constitutional goal of social and economic justice, there would be no violation of the basic structure, even if it infringes formal equality before the law under Article 14 or any fundamental right under Article 19.
Here, clause (a) of Article 31A protects a law of agrarian reform which is clearly in the context of the socio economic conditions prevailing in 226 India, a basic requirement of social and economic justice and 15 covered by the Directive Principals set out in clause (b) and (c) of Article 39 and it cannot be regarded as violating the basic structure of the Constitution.
On the contrary, agrarian reforms leading to social and economic justice to the . rural population is an objective which strengthens the basic structure of the Constitution.
[290B D].
Even on the basis of the doctrine of stare decisions the whole of Article 31A is constitutionally valid.
The view that Article 31A is constitutionally valid has been fallen in atleast three decisions of the Supreme Court, namely, Shankri Prasad 's case, Sajjan Singh 's case and Golaknath 's case and it has hold the field for over 28 years and on the faith of its correctness millions of acres of agricultural land have changed hands and now agrarian relations have come into being transferring the entire rural economy.
Even though the constitutional .
validity of Article 31A was not tested in these decisions by reference to the basic structure doctrine, the court would not be justified in allowing the earlier decisions to be reconsidered and the question of constitutional validity of Article 31A re opened.
These decisions have given a quietus to the constitutional challenge against the validity of Article 31A and this quietus should not now be allowed to be disturbed.
[290E, 292D, 294G H 295A].
Shankri Prasad vs Union of India, [19621 2 SCR 89; Sajjan Singh vs State of Rajasthan, [1965] I SCR 933; I.C. Golaknath vs Union of India, ; ; Ambika Prasad Mishra vs State of U.P. and Ors., [1980] 3 SCR .
followed It is no doubt true that the Supreme Court has power to review its earlier decisions or even depart from them and the doctrine of stare decisions cannot be permitted to perpetuate erroneous decisions of the court to the detriment of the general welfare of the public.
Certainty and continuity are essential ingredients of rule of law.
Certainty and applicability of law would be considerably eroded and suffer a serious set back if the highest court in the land were ready to overrule the views expressed by it in! earlier decisions even though that view has held the field for a number of years.
It is obvious that when constitutional problems are brought before the Supreme Court for its decision, complete and difficult questions are bound to arise and since the decision of many of such questions may depend upon choice between competing values, two views may be possible depending upon the value judgment or the choice of values made by the individual judge.
Therefore.
if one view has been taken by the court after mature deliberation the fact that another Bench is inclined to take another view would not justify the court in reconsidering the earlier decision and overrule it.
The law laid down by the Supreme Court is binding on all the courts in the country and numerous questions all over the country are decided in accordance with the view taken by the Supreme Court.
Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the decision given by the Supreme Court.
It would create uncertainty, unstability and confusion if the law propounded by the Supreme Court on the face of which numerous cases have been decided and many transactions have taken place is held to be not the correct law after a number of years.
The doctrine of stare decisions is evolved from the maxim "stare decisions et non quita movere" meaning "adhere to the decision and not unsettle things which are established" and it is a useful doctrine intended to bring about certainty and uniformity in the law.
But the doctrine of stare decisions cannot be regarded as a rigid 227 and inevitable doctrine which must be applied at the cost of justice There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity.
The court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons.
The power of review must be exercised with due care and caution and only for advancing the public well being and not merely because it may appear that the previous decision was based on an erroneous view of the law.
It is only where the perpetuation of the earlier decision would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the Constitution makers or "where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake up", that the court would be justified in reconsidering its earlier decision and departing from it.
It is fundamental that the nation 's constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues.
The court should not indulge in judicial stabilisation of State action and a view which has been accepted for a long period of time in a series of decisions and on tho faith of which millions of people have acted and a large number of transactions have been effected should not be disturbed.
[292G H, 293A H, 294A D].
Ambika Prasad Mishra vs State of U.P. and Anr., [1980] 3 SCR p. 1159.
followed.
(7) Article 31B was conceived together with Article 31A as part of the same design adopted to give protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an estate.
[295E F].
The Ninth Schedule of Article 31B was not intended to include laws other than those covered by Article 31A. Articles 31A and 31B were thus intended to serve the same purpose of protecting the legislation falling within a certain category.
It was a double barreled protection which was intended to be provided to this category of legislation, since it was designed to carry out agrarian reform which was so essential for bringing about a revolution in the socio economic structure of the country: [295F, H, 296A] Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Shankri Prasad 's case and Sajjan Singh 's case and were accepted as valid in Golakhnath 's case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati 's case, though not on the application of the basic structure test and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts, it would not be justified in re opening the question of validity of these constitutional amendment and hence these amendments are valid.
[297F H].
But all constitutional amendments made after the decision in Kesavananda Bharati 's case would have to be decided by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not known the limitation on its amending power.
Now out of the statutes which are or may in future be included in the Ninth Schedule by subsequent constitutional amendments, if there are any which fall within a category covered 228 by Article 31A or 31C, they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion.
in the Ninth Schedule is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other.
fundamental rights.
This question would primarily arise only in regard to statutes not covered by Article 31A or 31C and in case of such statutes, the Court would have to consider whether the constitutional amendments including such statutes in the Ninth Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights.
It is possible that in a given case even an abridgement of a fundamental right may involve violation of the basic structure.
It would all depend on the nature of the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution.
For example, right to life and personal liberty enshrined in Article 21, stands on an altogether different footing from other fundamental rights.
If this fundamental right is violated by any legislation, it may be difficult to sustain a constitutional amendment which seeks to protect such legislation against challenge under Article 21.
So also where a legislation which has nothing to do with agrarian reform or any Directive Principles infringes the equality clause contained in Article 14 and such legislation is sought to be protected by a constitutional amendment by including it in the Ninth Schedule, it may be possible to contend that such constitutional amendment is violative of the egalitarian principle which forms part of the basic structure.
However, other situations may arise where infarction of a fundamental right by a statute, is sought to be constitutionally protected might effect the basic structure of the Constitution.
In every case, therefore, where a constitutional amendment includes a statute or statutes in the.
Ninth Schedule, its constitutional validity would have to be considered by E. reference to the basic structured doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right.
[297H, 298C H, 299A B].
(8) Even on principle, the first part of the unamended Article 31C is constitutionally valid.
In view of the fact that the first part of the unamended Article 31C was held to be constitutionally valid by the majority decision in Keshavananda Bharati 's case, the question of its constitutional validity cannot be again reopened.
It is true, that the ratio decidendi of Keshavananda Bharati 's case was that the amending power of Parliament is limited and Parliament cannot in exercise of the power m f amendment alter the basic structure of the Constitution and the validity of every constitutional amendment has, therefore, to be judged by applying the test whether or not it alters the basic structure of the Constitution and this test was not applied by the six learned Judges, though their conclusion regarding constitutionality of the first part of the unamended Article 31C is valid.
Irrespective of the reasons which weighed with each one of the Judges who upheld the validity of the first part of the unamended Article 31C, the reasons for reaching the said conclusion would certainly have a bearing on the determination of the ratio decidendi of the case and the ratio decidendi would certainly be important for the decision of future cases where the validity of the first part or the unamended Article 31C is concerned, it was in so many terms determined by the majority decision in Keshavananda Bharati 's case, and that decision binds.
[300E H, 301A D, 302C] 229 What the first part of the unamended Article 31C does is merely to abridge the fundamental rights in Articles 14 and 19 by excluding the applicability to legislation giving effect to the policy towards securing the principles specified in clauses (b) and (c) of Article 39.
The first part of the unamended Article 31C is basically of the same genre as Article 31A with only this difference that whereas Article 31A protects laws relating to certain subjects, the first part of the unamended Article 31C deals with laws having certain objectives.
There is no qualitative difference between Article 31A and the first part of the unamended Article 31C in so far as the exclusion of Articles 14 and 19 is concerned.
The fact that the provisions to the first part of the unamended Article 31C are more comprehensive and have greater width compared to those of Article 31A does not make any difference in principle.
If Article 31A is constitutionally valid, the first part of the unamended Article cannot be held to be unconstitutional.
The first part of the unamended Article 31C, in fact, stands on a more secure footing because it accords protection against infraction of Articles 14 and 19 to legislation enacted for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39.
The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws.
It is for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 in discharge of the constitutional obligation laid upon the State under Article 37 that fundamental rights in Articles 14 and 19 are allowed to be abridged.
A constitutional amendment, therefore, making such a provision cannot be condemned as violative of the basic structure of the Constitution.
[301E H, 302A C].
(9) Even if the Constitution (Fortieth Amendment Act, 1976 is unconstitutional and void and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972 (Act 11 of 1975), the .
Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1975, (Act XLVII of 1945) and the Maharashtra Lands (Ceiling on holdings) Amendment Act, 1975, (Act II of 1976) have not been validly included in the Ninth Schedule so as to earn the protection of Article 31B, they are still saved from invalidation by Article 31A and so far as the Constitution (Forty Second Amendment) Act, 1976, is concerned, it is outside the constituent power of Parliament in so far as it seeks to include clauses (4) and (S) in Article 368.
[302C D, G H].
It is clear on a plain natural construction of its language that under the proviso to Article 83(2) the duration of the Lok Sabha could be extended only during the operation of a proclamation of emergency and if, therefore, no proclamation of emergency was in operation at the relevant time, the House of People (Extension of Duration) Act, 1976 would be outside the competence of Parliament under the proviso to Article 83(2).
Again the language of Article 352 (1) makes it clear that the President can take action under this clause only if he satisfies that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.
The satisfaction of the President "that a grave emergency exists whereby the security of India. is threatened whether by war or external aggression or internal disturbance" is a condition precedent which must be fulfilled before the President can issue a proclamation under Article 352 clause (1).
When this condition precedent is satisfied, the President may exercise the power under clause (1) of Article 352 and issue a proclamation of emergency.
The constitutional implications of a 230 declaration of emergency.
under Article 352 clause (1) are vast and they are provided in Articles 83(2), 250, 353, 358 and 359.
The emergency being an exceptional situation arising out of a national crisis certain wide and sweeping powers have been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions.
One such power is that given by Article 83(2) which provides that while a proclamation of emergency is in operation, Parliament may by law extend its duration for a period not exceeding one year at a time.
Further several drastic consequences ensue upon the making of a declaration of emergency.
The issue of a proclamation of emergency makes serious inroads into the principle of federalism and emasculates the operation and efficacy of the Fundamental Rights.
The power of declaring an emergency is, therefore, a power fraught with grave consequences and it has the effect of disturbing the entire power structure under the Constitution.
But it is a necessary power given to the Central Government with a view to arming it adequately to meet an exceptional situation arising out of threat to the security of the country on account of war or external aggression or internal disturbance or imminent danger of any such calamity.
It is, therefore, a power which has to be exercised with the greatest care and caution and utmost responsibility [303A B 306E H, 307E G].
(10) There is no bar to the judicial review of the validity of a proclamation of emergency issued by the President under Article 352 clause (1).
[308B C].
If a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities.
Merely because a question has a political colour the court cannot fold its hands in despair and declare "judicial hands off".
So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court.
Indeed it would be its constitutional obligation to do so.
The court is the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the court to intervene.
In fact, to this Court as much as to other Branches of Government is committed the conservation and furtherance of constitutional values.
The Court 's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court.
"Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too '.
The Court cannot and should not shirk this responsibility because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this country.
It would not, therefore, be right for the Court to decline to examine whether in a given case there is any constitutional violation involved in the President issuing a proclamation of emergency under clause (1) of Article 352.
The constitutional jurisdiction of this Court does not extend further than saying whether the limits on the power conferred by the Constitution on the President have been observed or there is transgression of such limits.
The only limit on the power of the President under Article 352 clause (1) is that the President should be satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war or external aggression or internal disturbance.
The satisfaction of the President is a subjective one and cannot be decided by reference to any objective tests.
It is deliberately and advisedly subjective because the matter in respect ' to 231 which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive Branch of Government.
There may be a wide range of situations which may arise and their political implications and consequences may have to .
be evaluated in order to decide whether there is a situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance.
It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences and a host of other imponderables.
It cannot, therefore, by its very nature, be a fit subject matter for adjudication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it.
The Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based.
That would ba a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this land and also because the Court would.
thereby usurp the function of the executive and in doing so enter the "political thicket" which it must avoid if it is to retain its legitimacy with the people.
But, if the satisfaction is mala fide or is based on wholly extraneous and irrelevant ground, the Court would have jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied The satisfaction of the President is a condition precedent to the exercise of power under Article 352 clause (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid.
[309C H, 310A B].
It is true that by reason of clause (5)(a) of Article 352, the satisfaction of the President is made final and conclusive and cannot be assailed on any ground, but, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would be open to attack on the ground that it is unconstitutional and void as damaging or destroying the basic structure.
This attack against constitutionality can, however, be averted by reading the provision to mean that the immunity from challenge granted by it does not apply whore the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all.
In such a case it is not the satisfaction arrived at by the President which is challenged but the existence of the satisfaction itself.
Where, therefore, the satisfaction is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground it would be no satisfaction at all and it would be liable to be challenged before a court notwithstanding clause (5)(a) of Article 352.
No doubt, in most cases it would be difficult if not impossible to challenge the exercise of ' power under Article 352 clause (1) even on this limited ground because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on a wholly extraneous or irrelevant ground.
[310C F].
Gormallion vs Lightfoot, ; ; Backer vs Carr; , , quoted with approval.
State of Rajasthan vs Union of India, ; , followed.
Gulam Sarwant vs Union of India, ; ; Bhutnath Mato vs State of West Bengal, ; , explained.
232 (11) on a plain natural interpreation of the language of sub clauses (a) to (c) of clause (2) that so long as the proclamation of emergency is not revoked by another proclamation under sub clause (2)(a), it would continue to be in operation irrespective of change of circumstances.
[312C].
Lakhan Pal vs Union of India, [1966] Supp.
SCR 209, applied.
It is true that the power to revoke a proclamation of emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong baselessly the state of emergency obliterating the Fundamental Rights and this may encourage totalitarian trend.
But the primary and real safeguard of the citizen against such abuse of power lies in "the good sense of the people and in the system of representative and responsible Government" which is provided in the Constitution.
Additionally, it may be possible for the citizen in a given case to move the court for issuing a writ of mandamus for revoking Proclamation of Emergency, if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency.
But this would be a very heavy onus because it would be entirely for the Executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked.
There would be so many facts and circumstances and such diverse considerations to be taken into account by the Executive Government before it can be satisfied that there is no longer any grave Emergency whereby the security of India is threatened by war or external aggression or internal disturbance.
This is not a matter which is fit for judicial determination and the court would not interfere with the satisfaction of the Executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose.
The court may in such a case, if satisfied, beyond doubt grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency.
But until that is done the Proclamation of Emergency would continue in operation and it cannot be said that though not revoked by another Proclamation it has still ceased to be in force.
In the present case, it was common ground that the first Proclamation of Emergency issued on 3rd December, 1971 was not revoked by another Proclamation under clause (2)(a) of Article 352 until 21st March, 1977 and hence at the material lime when the House of People (Extension of Duration) Act, 1976, was passed the first Proclamation of Emergency was in operation.
[312F H, 313A F.].
If the first Proclamation of Emergency was in operation at the relevant time it would be sufficient compliance with the requirement of the proviso to clause (2) of Article 83 and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President.
[313E F].
(12) The House of People (Extension of Duration) Act, 1976, was enacted under the proviso to clause (2) of Article 83 for the purpose of extending the duration of the Lok Sabha and it was a condition precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency in operation at the date when the Act was enacted.
The words "while the Proclamation of Emergency issued on the 3rd day of December, 1971 233 and on the 25th day of June, 1975 are both in operation" were introduced , merely by way of recital of the satisfaction of the condition precedent for justifying the exercise of the power under the proviso to clause (2) of Article 83 and they were not intended to lay down a condition for the operation of section 2 of the Act.
Section 2 clearly and in so many terms extended the duration of the Lok Sabha for a period of one year and extension was not made dependent on both the Proclamations of Emergency being in operation at the date of the enactment of the Act.
It was for a definite period of one year that the extension was effected and it was not co extensive with the operation of both the Proclamations of Emergency.
The extension for a period of one year was made once for all by the enactment of section 2 and the reference to both the Proclamations of Emergency being in operation was merely for the purpose of indicating that both the Proclamations of Emergency being in operation, Parliament had competence to make the extension.
It was, therefore, not at all necessary for the efficacy of the extension that both the Proclamations of Emergency should be in operation at the date of enactment of the Act.
Even if one Proclamation of Emergency was in operation at the material date it would be sufficient to attract the power of Parliament under the proviso to Article 83 clause (2) to enact the Act extending the duration of the Lok Sabha.
No doubt, Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act.
but even if this legislative assumption were unfounded it would not make any difference to the validity of the exercise of the power so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha under the proviso to clause (2) of Article 83.
It is true that the proviso to section 2 enacted that if both or either of the Proclamations of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the ceaser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application only in relation to a Proclamation of Emergency which was in operation at the date of enactment of the Act.
If such a Proclamation of Emergency which was in operation at the material date ceased to operate before the expiration of the extended period of one year, then the term of the Lok Sabha would not immediately come to an end, but it would continue for a further period of six months but not so to exceed the extended period of one year.
This provision obviously could have no application in relation to the second Proclamation of Emergency if it was void when issued.
In such a case, the second Proclamation not being valid at all at the date of issue would not be in operation at all and it would not cease to operate after the date of.
enactment of the Act.
The proviso would in that event have to be read as relating only to the first Proclamation of Emergency, and since the Proclamation of Emergency continued until it was revoked on 21st March, 1977, the duration of the Lok Sabha was validly extended for a period of one year from 18th March, 1976 and hence there was a validly constituted Lok Sabha on the dates when the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty second Amendment) Act, 1976, were.
passed by Parliament.
(314G H, 315A H, 316A C].
(In view of the settled practice of the Supreme Court not to say any more than is necessary to get a safe resting place for the decision, His Lordship did not consider whether the second Proclamation of Emergency was validly issued.)
|
Civil Appeal No. 3325 of 1979.
Appeal by Special Leave from the Judgment and order dated 12 10 1979 of the Punjab and Haryana High Court in Civil Revision No. 1526/74.
R.P. Bhatt and Adarsh Kumar Goel for the Appellant.
M.M. Abdul Khader, S.R. Bagga and Mrs. section Bagga for the respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated November 12, 1979 of the Punjab and Haryana High Court and raises a pure question of law.
The facts of the case lie within a very narrow compass.
The respondents plaintiffs filed a suit for eviction of the appellants under section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Rent Act ').
The ejectment was sought for from the shop B VI, 1400 old B IX 1736, New Ground Floor, situated in Saban Bazar, Ludhiana.
The main ground on which the suit for eviction was filed was that the appellant had committed default in the payment of rent.
The suit was resisted by the appellant mainly on the ground that he was not in arrears as he had deposited the entire rent due in the court of Senior Sub Judge, Ludhiana under section 31 of the Punjab Relief of Indebtedness Act, 1934 (hereinafter referred to as the 'Indebtedness Act ').
It was also averred by the defendant tenant that not only the rent due was deposited but even future rent in advice had 479 also been deposited before the first date of hearing.
It was also alleged by the tenant that he had deposited the interest and cost of the suit amounting to Rs. 23 which was admittedly accepted by the landlord under protest.
Thus, the tenant appellant claimed complete protection under the proviso to section 13(2) of the Rent Act.
The defendant also pleaded that the notice given to the appellant by the landlord was legally defective.
The trial court held that any deposit made by the appellant under section 31 of the Indebtedness Act in the Court of the Senior Sub Judge was not a valid tender and therefore the appellant could not claim any protection under the proviso to section 13(2) of the Rent Act.
On the question of notice, the trial court held that the notice was valid and accordingly decreed the suit for ejectment.
Other pleas were also taken by the defendant which were overruled by the trial court and have not been pressed before us.
The appellant then filed an appeal before the District Judge, Ludhiana, being the appellate authority, under the Rent Act against the judgment of the trial court.
The appellate authority did not go at all into the question as to whether or not the deposit of the rent due by the appellant was a valid tender but held that as the notice was not in accordance with law, the suit was liable to fail.
He accordingly allowed the appeal, set aside the order of the Controller and dismissed the suit for ejectment.
Thereafter, the landlord respondent went up in revision to the High Court against the order of the appellate authority and the only contention raised before the High Court was that in view of the decision of this Court in V. Dhanapal Chettiar vs Yesoclai Ammal as no notice was necessary, therefore the Rent Controller was wrong in non suiting the plaintiff on the ground of invalidity of the notice.
The High Court accordingly decreed the suit without, however, going into the question of deposit 1 of rent so as to protect the tenant from eviction.
The appellant then filed an application for special leave which was granted and hence this appeal.
The only point raised by the learned counsel for the appellant before us is that the appellant having deposited the rent before even the respondent filed the application for ejectment after which the appellant deposited the sum of Rs. 23 as cost and interest, ke was entitled to the protection of the proviso to si.
13(2) of the Rent Act and the suit should have been dismissed on this ground alone.
It was further argued that the deposit of the rent due under section 31 of the Indebtedness Act was a valid tender as it would, in the eye of law, be treated as a deposit in the court of the Rent Controller because the court of the Senior Sub Judge was also functioning as a Rent 480 Controller.
The counsel for the respondent, however, submitted that the deposit made by the appellant cannot be held to be a valid tender as decided by a decision of this Court in Shri Vidya Prachar Trust vs Pandit Basant Ram.
The learned counsel further submitted that although this case was noticed by two later decisions of this Court in Sheo Narain vs Sher Singh and Duli Chand vs Maman Chand yet the said case had been distinguished but not overruled.
Before examining the contention of the learned counsel for the parties it may be necessary to mention the undisputed facts which emerge from the petition, affidavits, annexures and counter affidavits of the parties.
It is not disputed that the rent of the premises was Rs. 35.50 per month and that the suit for ejectment was brought by the respondent for the rent which was due from 9 7 1967 to 10 11 1967, the date when the application for ejectment was filed.
Secondly, it was also not disputed but rather tacitly admitted in the counter affidavit filed by the respondent that a sum of Rs. 71 being the rent from 10 7 67 to 9 12 67 was deposited by the appellant on 8 8 67 under section 31 of the Indebtedness Act before the Court of the Senior Sub Judge.
It was also not disputed that a sum of Rs. 106.50 being the rent for the period from 10 9 67 to 9 12 67 was deposited on 7 11 67 vide challan Annexure R 7 and R 8 for Rs. 71 and Rs. 106.50 respectively, that is to say three days before the application for ejectment was filed.
Finally, it was admitted by the respondent Kidar Nath that a sum of Rs. 23, being the cost and interest, was accepted by the landlord under protest before the first date of hearing and he further admitted that he learnt about the challans Exs.
P 1 and P 2 containing the previous deposit of rent due also on the first date of hearing when they were produced.
It is thus manifest that the entire arrears of rent, interest and cost were available for payment to the respondent on the first hearing.
Thus, all the essential requirements of the provisions were complied with.
The argument of the respondent, however, only centered round the question as to whether or not the deposit made by the appellant could be treated as a deposit under the Rent Control Act and, therefore, a valid tender to the landlord.
That is really the crucial question which falls for determination in the instant case.
The counsel for the appellant has placed strong reliance on two later decisions of this Court in Sheo Narain vs Sher Singh and Duli Chand vs Maman Chand (supra), whereas the counsel for the respondent has relied on Vidya 481 Prachar Trust 's case (supra).
Before, however, going to the decisions we would like to examine the provisions of the relevant Acts.
It is true that there is absolutely no provision in the Rent Act under which a deposit could be made by a tenant before the Controller to the credit of the landlord.
Under section 31 of the Indebtedness Act there is undoubtedly a specific provision for a person who owes money to another to deposit the amount in the court and once this is done, the interest would cease to run.
The serious question for consideration is as to whether or not a deposit by the tenant under section 31 of the Indebtedness Act could be treated as a deposit in the court of Rent Controller so as to enure for his benefit.
In order to understand this aspect of the matter we have to ascertain the object of the Indebtedness Act and particularly, section 31 of the said Act.
The main object of the Indebtedness Act appears to be to give relief to debtors and protect them from paying excessive rates of interest.
The Act thus contains provisions for setting up Debt Conciliation Boards.
Section 7(1) defines 'Debt ' and clause (2) of section 7 defines 'Debtor ' thus: "Debtor" means a person who owes a debt and (i) who both earns his livelihood mainly by agriculture, and is either a land owner, or tenant of agricultural land, or a servant of a land owner, or of a tenant of agricultural land; or (ii) who earns his livelihood as a village menial paid in cash or kind for work connected with agriculture; or (iii) whose total assets do not exceed five thousand rupees;" In Vidya Prachar Trust case (supra), Hidayatullah, C. J., examined some of the provisions of the Indebtedness Act and held that the Act was not intended to operate between landlords and tenants nor was the court of Senior Sub Judge a clearing house for rent so as to convert it into a court of Rent Collector and speaking for the Court observed thus: "The Act is not intended to operate between landlords and tenants; nor is the Court of the Senior Sub Judge created into a clearing house for rent.
There is no provision in the Urban Rent Restriction Act for making a deposit except one, and that is on the first day of the hearing of the case.
It could not have been intended that all tenants who may be disinclined to pay rent to their landlords should be enabled to deposit it in the Court of a Senior Sub Judge making the Senior Sub Judge a kind of a Rent Collector for all landlords.
" 482 With due respect, in making these observations the attention of the learned Chief Justice does not appear to have been drawn to certain important aspects and facets of the true scope and purport of section 31 of the Indebtedness Act or even to the fact that the same Sub Judge before whom deposit could be made under section 31 of the Indebtedness Act was also functioning as Rent Controller under the Rent Act.
Section 31 runs thus: "31.
Deposit in court. (1) Any person who owes money may at any time deposit in court a sum of money in full or part payment to his creditor.
(2) The court on receipt of such deposit shall give notice thereof to the creditor and shall, on his application, pay the sum to him.
(3) From the date of such deposit interest shall cease to run on the sum so deposited.
" The learned Chief Justice held that although the general words 'any person who owes money ' may appear to cover the case of a tenant yet as a whole the Act was not meant to cover cases of a landlord and tenant but only such debtors and creditors between whom there was an agreement for payment of interest.
We are however, unable to agree with this view because from the plain and unambiguous language of section 31 it cannot be spelt out that the Act applies only to a particular type of debtors and creditors as hinted by the learned Chief Justice.
We have highlighted this aspect of the matter to show that section 31 has been couched in the widest possible terms and the legislature has advisedly not used the word 'debtor ' in section 31 so as to confine the provisions of the section only to the 'debtor ' defined in the said Act and to no other, but the legislature intended to embrance within its fold all persons owing money including tenants who are in arrears.
Thus, under section 31 any person who owes money is entitled to deposit in court the money owed either in full or in part in the name of his creditor.
It is manifest, therefore, that this provision would apply even to a tenant who owes money to his landlord by way of rent due and he can also enjoy the facility provided by section 31 of the Indebtedness Act.
It appears that by virtue of a notification (No. 1562 Cr. 47/9224 published in the Punjab Gazette Extraordinary, dated 14th April 1947) all subordinate Judges of First Class were appointed as Controllers.
The notification may be extracted thus: "In pursuance of the provisions of clause (b) of Section 2 of the Punjab Urban Rent Restriction Act, 1947, the Governor 483 of Punjab is pleased to appoint all first class Subordinate Judges in the Punjab to perform the functions of Controllers under the said Act, in the Urban area within the limits of their existing civil jurisdiction".
In the instant case, it is not disputed that the Senior Sub Judge was a Sub Judge First Class and was also functioning as a Rent Controller in Ludhiana which was an urban area, hence any deposit made in his court by a tenant to the credit of a landlord to get the protection of the Rent Act, would have to be treated as a deposit before the Rent Controller.
Afterall, if the Sub Judge was a Rent Controller, the amount would have to be deposited by a challan in the same treasury which was to be operated by the Sub Judge who was also a Controller.
By a notification made under the Punjab Courts Act, 1918, a Sub Judge is conferred with first class, second class and third class powers according to the nature of the jurisdiction of the cases which they are competent to try.
A Sub Judge, first Class exercises jurisdiction without any limit as to the value of the case.
A Sub Judge, Second Class exercises jurisdiction in cases of which the value does not exceed Rs. 10,000 and a Subordinate Judge, III Class exercises jurisdiction in cases of which the value does not exceed Rs. 5,000.
This appears to be the hierarchy of the Sub Judges under the Punjab Courts Act, 1918.
This aspect of the matter was noticed by this Court in Kuldip Singh vs The State of Punjab & Anr.
where referring to the nature of the Senior Sub Judge, the following observations were made: "The Rules and orders of the Punjab High Court reproduce a Notification of the High Court dated 16th May 1935 as amended on 23rd February 1940, at page 3 of Chapter 20 B of Volume I, where it is said in paragraph 2 'It is further directed the Court of such Senior Subordinate Judge of the first class shall be deemed to be a District Court.
etc. ' This appears to regard each Senior Subordinate Judge as a Court in himself and not merely as the presiding officer of the Court of the Subordinate Judge.
" Thus, the combined effect of the provisions of section 31 of the Indebtedness Act and the notification by which a Senior Sub Judge was to function as a Controller under the Rent Act is that section 31 is constituted a statutory agency or machinery for receiving all debts and paying the same to the creditors.
This appears to us to be the 484 dominant purpose and the avowed object of section 31.
It thus follows as a logical consequence that any deposit made by a tenant under section 31 would have to be treated as a deposit under the Rent Act to the credit of the landlord and which will be available to him for payment whenever he likes.
That this is the position has been clearly held by two Division Bench decisions of the Punjab High Court.
In Mam Chand vs Chhotuu Ram & Ors a Division Bench consisting of Falshaw, C. J. and Grover, went into this very question in great detail and observed as follows: "It is equally clear that a deposit made under section 31 would save the running of interest and that the tenants would be entitled to take the benefit of the provisions contained in section 31 regarding cesser of interest from the date of payment into Court for the purposes of calculating the amount which have to be deposited under the proviso in question to claim protection against eviction.
If the money deposited in Court under section 31 is a good payment for the purpose of stopping the running of interest it looks highly problematical that it would cease to be a valid payment to the landlord of rent.
. . . . in a case of the present type where it has not been shown that there was any other account between the landlord and the tenant and the amount was deposited clearly towards payment of rent because the landlord would not accept the money orders which had been previously sent, it is not possible to accept the view that the payment is not being made to the landlord on account of rent.
It may well be that the landlord is not inclined to accept that payment but it is for that very purpose that the provision, namely.
section 31 of the Punjab Relief of Indebtedness Act, has been enacted The language of section 31 itself is clear that the person who owes money can deposit the same in Court in full or part payment to his creditor.
This means that deposit in Court is tantamount to payment having been made to the creditor.
Even if no such implied agency can be inferred, the Court is constituted as a statutory agent because the payment made to it is by fiction of law considered to be payment made to the creditor by the debtor and which, in addition, is effective enough to stop the running of interest.
" 485 To the same effect is another decision of the same High Court in Khushi Ram vs Shanti Rani & Ors.
Where Dulat, J., speaking for the Court observed as follows: "It is clear that if such deposit is not to be equivalent to actual payment to the creditor, it is certainly good ' and valid tender of the money, for it has been paid into, Court and the creditor has been told through Court that the money has been deposited and can be received by the creditor at any time.
In my opinion, therefore, there is no occasion for further consideration of the decision of the Division Bench in Mam Chand 's case, which, if I may say so, adopts a perfectly reasonable and matter of fact view of the situation.
I would therefore hold that a deposit made under section 31 of the Punjab Relief of Indebtedness Act in respect of any arrears of rent must be taken in law to be at least a valid tender of such arrears.
In both these cases, therefore, it is impossible to ignore the fact of the deposit.
" We find ourselves in complete agreement with the observations made by the.
Punjab High Court in the two cases referred to above which lay down the correct law on the subject In view of these circumstances we are unable to agree with the view taken by the learned Chief Justice in Vidya Prachar Trust 's case (supra) that the Court of Senior Sub Judge was not converted into a court of Rent Controller by the tenant because the Sub Judge was actually functioning as a Rent Controller by virtue of the notification, as indicated above.
It may also be emphasised at this stage that the present suit was also filed before the Senior Sub Judge, Ludhiana where the deposit was made by the appellant, though after the suit was filed it was transferred to some other Sub Judge who was also empowered to function as a Rent Controller.
Moreover, it is manifest that the appellant tenant fully answers the description of the opening words of section 31 of the Indebtedness Act which are to the effect 'any person who owes money ' and hence the appellant was entitled to make the deposit under section 31 which would enure for the benefit of the creditor.
In our opinion, therefore, to give a narrow meaning to the words "person who owes money" used in s 31 of the Indebtedness Act would be to unduly restrict the scope of section 31 which appears to be contrary to the intention of the legislature.
Furthermore, under the proviso to section 13(2) of the Rent Act, the tenant was required to deposit interest also in order to get protection of the proviso.
Hence, the tenant was a debtor with a sort of a statutory agreement to pay interest 486 and would therefore squarely fall within the definition of section 31 of the Indebtedness Act even if the interpretation placed by the learned Chief Justice on section 31 in Vidya Prachar Trusts case (supra) is, accepted at its face value.
Another ground taken by the learned Chief Justice to hold that the deposit of money before the Sub Judge could not be a valid tender was that under section 19 read with section 6 of the Rent Act, acceptance of future rent was punishable as an offence and hence it would be impossible to contend that a landlord would be required to accept rent at the peril of going to jail.
In this connection, the Chief Justice observed as follows: "Further the deposit of money in the present case was not only of the rent due but also of future rent.
Under section 19 read with section 6 of the Urban Rent Restriction Act a landlord is liable to be sent to jail if he recovers advance rent beyond one month.
" With great respect to the Hon 'ble Chief Justice, it seems to us that there is absolutely no bar either under section 19 or section 6 of the Rent Act to receive future rent.
Section 6 of the Rent Act may be extracted thus: "6.
Landlord not to claim anything in excess of fair rent. (1) Save as provided in section 5, when the Controller has fixed the fair rent of a building or rented land under section (a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceeding one month 's rent; (b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void.
" Section 6 thus merely provides that where a fair rent is fixed by the Controller it would not be open to the landlord to receive any amount in advance in excess of the fair rent.
Section 6(a) further permits the landlord to stipulate and receive in advance an amount not exceeding one month 's rent.
Clause (b) makes any agreement for payment of any sum in excess of such fair rent null and void.
This section therefore clearly deals with a situation where a fair rent under section 6 is fixed by the Controller on the application of the parties.
Neither in the present case nor in Vidya Prachar Trust 's case (supra) was there any allegation that a fair rent had been fixed by the Controller.
Section 19 is the penal section which makes a person 487 punishable with imprisonment for a maximum period of two years if he violates the provisions of section 6.
So long as fair rent is not fixed by the Controller the parties are free to agree to payment of any rent and neither section 6 nor section 19 would be attracted to such a case.
Moreover, even if the tenant were to deposit future rent it is always open to the landlord not to withdraw the future rent but confine himself to taking out only the rent that is in arrears which will not at all violate any provision of the Rent Act.
For these reasons, therefore, with great respect to the Hon 'ble Judges who decided the Vidya Prachar Trust 's case (supra), we are unable to agree with the view taken by them that a deposit by the tenant under section 31 of the Indebtedness Act was not a valid tender and we are of the opinion that case was not correctly decided and we, therefore, overrule the same.
Learned counsel for the respondent submitted that the proviso to section 13(2) of the Rent Act contemplates that the rent with cost and interest must be deposited on the first hearing of the application for ejectment either by paying or tendering the same to the landlord on that date and neither before nor after that date.
We are unable to place such a restricted or unreasonable interpretation on the language of the proviso which runs thus: "Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.
" Like all other Rent Control Acts in the other States in the country, the Rent Act is a piece of social legislation which seeks to strike a just balance between the rights of the landlords and the requirements of the tenants.
The Act prevents the landlord from taking the extreme step of evicting the tenant merely on the ground of default in payment of rent if the landlord is guaranteed entire payment of the entire arrears of rent, cost and interest.
Thus, the proviso affords a real and sanctified protection to the tenant which should not be nullified by giving a hypertechnical or literal construction to the language of the proviso which instead of advancing the object of the Act may result in its frustration.
The statutory provisions of the proviso which is meant to give a special protection to the tenant, if properly and meaningfully construed, lead to the inescapable conclusion that the rent together with cost and interest, etc., should be paid on or before the date 488 of the first hearing and once this is done, there would be a sufficient compliance with the conditions mentioned in the proviso.
It is not disputed in the instant case that the entire rent including even the future rent has been deposited with the Rent Controller before the date of the first hearing, that is to say on 8 8 67 and 7 11 67, whereas the first date of hearing was 8 12 67.
The landlord respondent himself admitted that he had received the interest and cost of Rs. 23 on the first date of hearing.
Thus, all the necessary conditions of the proviso to section 13(2) of the Rent Act were fully complied with in the instant case and in that view of the matter there was no legal obstacle in dismissing the suit for ejectment.
In a recent case Sheo Narain vs Sher Singh (supra) this Court observed as follows : "It is therefore, manifest that in the instant case a deposit of the rent and the arrears along with interest had actually been made before the first date of hearing to the knowledge of the Court and the Court had acknowledged the fact of the deposit of the amount.
Again, on the first date of hearing, i.e., May 11, 1967 the Rent Controller informed counsel for the applicant respondent that a sum of Rs. 179.48 had been deposited.
It is, therefore, clear that the applicant respondent was apprised clearly of the fact that the amount in question had actually been deposited and was at his disposal and he could withdraw the same from the Court of the Rent Controller whenever he liked.
There is no magical formula or any prescribed manner for which rent can be deposited by the tenant with the landlord.
The rent can be deposited by placing the money in the hands of the landlord which would amount to actual tender; second mode of payment is to deposit the amount in the court where a case is pending in such a manner so as to make the amount available to the landlord without any hitch or hindrance whenever he wants it.
Even the Act does not prescribe any particular mode of deposit.
In fact, the use of the words "tender or deposit" in the proviso clearly postulates that the rent can be given to the landlord in either of the two modes.
It may be tendered to the landlord personally or to his authorised agent or it may be deposited in court which is dealing with the case of the landlord to his knowledge so that the landlord may withdraw the deposit whenever he likes.
In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bona fides in the matter and the legal position would be that if the rent is deposited before the first date of hearing, it 489 will be deemed to have been deposited on the date of the hearing also because the deposit continues tn remain in the court on that date and the position would be as if the tenant has deposited the rent in court for payment to the landlord.
" It was, however, urged by the respondent that in the case cited above, the rent was deposited after the suit for ejectment was filed and not before the suit.
hence the deposit was held to be valid.
In our opinion, this argument is not tenable because once it is held that a deposit under section 31 of the Indebtedness Act is a valid tender having been deposited on or before the first date of hearing, the exact point of time when the deposit is made is wholly irrelevant and will not amount to non compliance of the conditions of the proviso to section 13(2) of the Rent Act.
In the instant case, we have also found that the deposit of the arrears of rent had been made prior to the filing of the ejectment petition and the interest and cost were paid on the first date of hearing as admitted by the respondent.
For these reasons, therefore we hold that the appellant tenant having complied with the conditions of the proviso to section 13(2) of the Rent Act, the High Court committed an error of law in decreeing the plaintiff 's suit for ejectment.
The result is that the appeal is allowed, the order of the High Court is set aside and the suit of the plaintiffs for ejectment is dismissed.
In the peculiar circumstances of this case and particularly having regard to the fact that Vidya Prachar Trust 's case (supra) held the field before this judgment rendered by us.
we would leave the parties to bear their own costs.
Appeal allowed.
| IN-Abs | The appellants were the tenants of the respondents landlord.
The suit filed by the respondents for eviction of the appellants under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground of default in repayment of rent was decreed in spite of the fact that the appellants deposited all the rents before the date of filing of the suit, the future rent in advance before the first date of hearing and also the interest and cost of the suit amounting to Rs. 23 on the first date of hearing.
These deposits were made under Section 31 of the Punjab Relief of Indebtedness Act, 1934 and under Section 13 of the Rent Act before the Rent Controller cum Senior Sub Judge respectively.
The suit was decreed on the ground that the said deposit was not a valid tender and the appellants could not claim any protection under the proviso to Section 13(2) of the Rent Act but the Appellate Court set aside the judgment of the Trial Court on the ground of the validity of the notice.
The High Court in revision following the decision of this Court in Yasodai Ammal 's case set aside the appellate order and decreed the suit.
Both the Appellate Court and the High Court never went into the question of deposit of rent so as to protect the tenant from eviction.
Hence the appeal by obtaining the special leave from this Court Allowing the appeal, the Court ^ HELD (1) The main object of the Relief of Indebtedness Act, 1934 is to give relief to debtors and protect them from paying excessive rates of interest.
From the plain and unambiguous language of Section 31, it cannot be spelt out that the Act applies only to a particular type of debtors and creditors.
Section 31 has been couched in the widest possible terms and the legislature has advisedly not used the word debtor in Section 31 so as to confine the provisions of the section only to the 'debtor ' defined in the said Act and to no other but the legislature intended to embrace within its fold all persons owing money including tenants who are in arrears.
Thus, under Section 31 of the Indebtedness Act any person who owes money is entitled to deposit in court the money owed either in full or in part in tho name of his creditor.
It is clear, therefore, that Section 31 would apply even to a tenant who owes money to his landlord by way of rent due and he can also enjoy the facility provided by Section 31 of the Indebtedness Act.
[481 C, 482 E G] 477 (2) The combined effect of the provisions of Section 31 of the Indebtedness Act and the Notification No. 1562 Cr. 47/9224, dated 14th April, 1947 published in the Punjab Gazette Extraordinary and the Notification made under the Punjab Courts Act, 1918 by which a Senior Sub Judge was to function as a Controller under the Rent Act is that Section 31 is constituted a statutory agency or machinery for receiving all debts and paying the same to the creditors.
This is the dominant purpose and the avowed object of Section 31 of the Indebtedness Act.
It thus follows as a logical consequence that any deposit made by a tenant under Section 31 would have to be treated as a deposit under the Rent Act to the credit of the landlord and which will be available to him for payment whenever he likes to withdraw.
[482 H, 483 H 484 B] Kuldip Singh vs The State of Punjab & Anr. , followed.
Mam Chand vs Chhotu Ram & Ors I.L.R. 1964 Punjab 626 and Khushi Ram vs Shanti Rani & Ors.
1964 Punjab Law Reports 755, approved.
Vidya Prachar Trust vs Pandit Basarat Ram , overruled.
(3) To give a narrow meaning to the words "person who owes money" used in Section 31 of the indebtedness Act would be to unduly restrict the scope of Section 31 which is contrary to the intention of the legislature.
Furthermore, under the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949, the tenant was required to deposit interest also in order to get protection of the proviso.
Hence, the tenant was a debtor with a sort of a statutory agreement to pay interest and would therefore squarely fall within the definition of Section 31 of the Indebtedness Act.
[485 G 486 A] (4) There is absolutely no bar either under Section 6 or under Section 19 of the East Punjab Urban Rent Restriction Act, 1949 to receive future rent.
Section 6 of the Act merely provides that where a fair rent is fixed by the Controller it would not be open to the landlord to receive any amount in advance in excess of the fair rent.
Section 6, therefore, clearly deals with a situation where a fair rent under Section 6 is fixed by the Controller on the application of the parties.
Neither in the present case nor in Vidya Prachar Trust 's case was there any allegation that a fair rent had been fixed by the Controller.
So long as fair rent is not fixed by the Controller the parties are free to agree to payment of any rent and neither Section 6 nor Section 19 would be attracted to such a case.
Moreover, even if the tenant were to deposit future rent it is always open to the landlord not to withdraw the future rent but confine himself to taking out only the rent that is in arrears which will not at all violate any provision of the Rent Act.
Therefore, a deposit by a tenant under Section 31 of the Indebtedness Act was a valid tender.
[486D, G H; 487A C] (5) Like all other Rent Control Acts in the other States in the country, the Rent Act is a piece of social legislation which seeks to strike a just balance between the rights of the landlords and the requirements of the tenants.
The Act prevents the landlord from taking the extreme step of evicting the tenant merely on the ground of default in payment of rent if the landlord is guaranteed entire payment of the entire arrears of rent, cost and interest.
Thus the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949 affords a real and sanctified protection to the tenant which should not be nullified by giving a hypertechnical or literal 478 construction to the language of the proviso which instead of advancing the object of the Act may result in its frustration.
[487F G] (6) The statutory provisions of the proviso which is meant to give special protection to the tenant, if property and meaningfully construed, lead to the inescapable conclusion that the rent together with cost and interest, etc., should be paid on or before the date of the first hearing and once this is done, there would be sufficient compliance with the conditions mentioned in the proviso.
In the instant case all the necessary conditions of the proviso of Section 13(2) of the Rent Act were fully complied with.
[487H 488 A, B] Sheo Narain v Sher Singh ; , applied.
(7) Once it is held that the deposit under section 31 of the Indebtedness Act is a valid tender having been deposited on or before the first date of hearing, the exact point of time when the deposit is made is wholly irrelevant and will not amount to non compliance of the conditions of the proviso to Section 13(2) of the Rent Act.
In the instant case, the deposit of the arrears of rent had been made prior to the filing of ejectment petition and the interest and cost were raid on the first date of hearing.
[489B C]
|
ivil Appeal Nos.
1331/79 and 426 of 1980.
Appeals by Special Leave from the Judgment and order dated 16 4 1979 of the Delhi High Court in W.P. No. 489/76.
M. C. Bhandare, A. C. Gulati, G. section Chatterjee and B. B. Sawhney for the Appellants in CA No. 1331/79 and for Respondent in CA 4261 80.
Lal Narain Sinha, Att.
and Miss A. Subhashini for the Appellants in CA No. 426 and Respondents in CA No. 1331/79.
The Judgment of the Court was delivered by SEN J.
These appeals by special leave from a judgment of the Delhi High Court.
involve interpretation of section 2(h) of the , ]973, as amended by the Coal Mines Nationalisation Laws (Amendment) Act, 1978, as well as of sub section
(2) of section 18 read with sub sections
(3) and (4) of section 19 of the Act.
The importance of this case in its legal aspect consists in the question as to whether the Central Government has the power under sub section
(3) of section 19 of the Act to receive up to the specified date, i.e., June 30, 1975 any money due to a coal mine notwithstanding that 411 the realisation pertains to a period prior to that date.
even though A such amounts may not be the "current assets", by reason of Explanation to section 2(h)(xii), and to apply such realisations under sub section
(4) thereof to discharge the liabilities of such coal mine which could not be discharged by the appointed day, i.e., May 1. 1973.
The facts of the case are as follows: Messrs Shethia Mining & Manufacturing Corporation, Calcutta apparently owned three non coking coal mines, two in the State of West Bengal viz., New Satgram and New Jamuria coal mines, and one in the State of Maharashtra viz. New Majri coal mine.
The concern also owned a workshop called the New Satgram Engineering Works.
in short, "Engineering Unit", built on a plot adjacent to the New Satgram coal mine in 1964.
Outside the mining area, but adjacent to it, it had constructed a building known as the Technical Director 's Bungalow built somewhere in 1957 58.
In or about 1960 61, it had constructed another building on the same plot of land, namely, the Guest House used for the residence of officers and staff of the mines.
The management of the aforesaid coal mines was first taken over under the Coal Mines (Taking over of Management) ordinance.
1973 pending nationalisation of such mines and vested in the Central Government from the appointed day i.e., January 31, 1973.
The ordinance was replaced by the Coal Mines (Taking over of Management Act, 1973, hereinafter referred to as the "Management Act".
Thereafter, Parliament enacted the Coal Mines (Nationalisation) Acts 1973, hereinafter referred to as the 'Nationalisation Act ', providing for the acquisition and transfer of the rights, title and interest of the owners in respect of the coal mines specified in the Schedule with a view to re organising and reconstructing such coal mines so as to ensure the rational.
co ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country.
The Nationalisation Act provides by sub section
(1) of section 3 that the right, title and interest of the owners in relation to the coal mines specified in the Schedule shall stand transferred to, and vest absolutely in, the Central Government free from all incumbrances with effect from the appointed day, i.e., May 1. 1973.
The mines in question were nationalised and have been mentioned at serial Nos. 383, 577 and 601 in the Schedule.
The right, title and interest of Messrs Shethia Mining & Manufacturing Corporation consequently vested in the Central Government and subsequently by a notification in the Government Company, i.e., the Coal (India) Ltd. 412 The management of the New Satgram Engineering (hereinafter called the petitioners) Works tried at first, to challenge the validity of the Coal Mines (Taking over of Management) ordinance, 1973 by a petition in this Court under article 32 of the Constitution being Writ Petition No. 81 of 1973.
On February 12, 1973 they obtained rule nisi and an interim order restraining the taking over of the Engineering Unit.
On May 4, 1973 the Court made the stay absolute.
Between the making of the two orders, the Coal Mines (Taking Over of Management) Act, 1973 was enacted on March 31, 1973 with retrospective effect from January 31, 1973.
On May 17, 1973, the Central Government took over possession of the Technical Director 's Bungalow and the Guest House.
On May 30, 1973 the was enacted and came into force with retrospective effect from May 1.
On August 30, 1973 the Management filed another petition under article 32 of the Constitution being Writ Petition No. 1673 No. 1973 challenging the validity of the Act.
On September 19, 1473 the Court issued rule nisi and an ad interim order in terms of the earlier order.
On August 10, 1975 the Management Act and the Nationalisation Act were both placed in the Ninth Schedule, by the Constitution (Thirtyninth Amendment) Act being item Nos. 98 and 99 thereof on April 1, 1976 the petitioners withdrew their Writ Petitions Nos. 81 and 1673 of 1973 but two days after, i.e., on April 3, 1976 they presented a petition under article 226 of the Constitution before the Delhi High Court being Writ Petition No. 489 which has given rise to these appeals.
It is not unworthy of mention here that the main relief, if rot the only substantial relief, sought by the petitioners in their petition under article 226 of the Constitution, was for the issue of a writ or direction in the nature of Mandamus in regard to the New Satgram Engineering Works, but it appears that at the hearing in the High Court the submissions ranged over a much wider field.
The petitioners alleged that until April 30, 1973, i.e., prior to the appointed day, Messrs Shethia Mining & Manufacturing Corporation were the owners of the two coal mines i.e., New Satgram and New Majri, and as on that day.
the outstanding dues from sundry debtors were Rs. 68.74 lacs, further that from January 31, 1973 to April 30, 1973 i.e., during the period of management, the Central Government had despatched coal from the aforesaid two mines worth Rs. 53.22 lacs and that a sum of Rs. 7,28,342.54 was still outstanding as on April 30, 1973 towards subsidy receivable from the erstwhile Coal Board 413 established under section 4 of the Coal Mines (Conservation and Safety) Act, 1952 on account of hard rock mining and stowing operations.
It was also asserted that between the years 1962 and 1967 the petitioners had advanced a sum of Rs. 2,51,597.24 to the Eastern Railways for the construction of a railway siding, but the project having been abandoned on January 18, 1973 the amount had become due, although no such claim was made in the writ petition.
The High Court partly allowed the writ petition.
It declined to go into the question as to whether the Engineering Unit.
together with Shethia Bhavan and all its assets etc.
, the Technical Director 's Bungalow.
and the Guest House, were or were not covered by the definition of 'mine ' in B. 2(h)(vi), (vii) and (xi) of the Nationalisation Act, but declared that the subsidy amounting to Rs. 7,28,342.54 receivable from the erstwhile Coal Board and outstanding as on May 1, 1973 did not vest in the Central Government under sub section
(1) of section 3 being impressed with trust.
It further held that any amount which could not be realised until June 30, 1975, i.e., the specified date, under sub section
(3) of section 19 of the Act, would be realisable by the erstwhile owners of the coal mines.
As regards the amount of Rs. 2,51,597.74 advanced by the petitioners to the Eastern Railways for construction of a railway siding, it held that no such claim having been made in the writ petition, they cannot be permitted to raise it.
In these appeals, three questions arise; (1) whether the High Court having held that there was no special machinery provided in the Act for determining the question whether a particular asset fell within the definition of 'mine ' contained in section 2(h) of the Act, it ought to have, on the facts and circumstances of the present case, decided the said question in the exercise of its jurisdiction under article 226 of the Constitution? (2) Whether on a true construction of sub section
(3) of section 19 of the Act, the Central Government was entitled, to the exclusion of all other persons, to receive up to the specified date, any money due to the coal mines in question, realised after the appointed day, i.e., May 1, 1973 notwithstanding that the realisation pertained to a period prior to that day, and under sub section
(4) thereof to discharge the liabilities of the coal mines which could not be discharged by the appointed day, from out of such realisation up to the specified date, i.e., June 30, 1975? If that be so, whether any amount which could not be realised until the specified date, i.e., June 30, 1975 would be realisable by the erstwhile coal mine owners directly? (3) Whether the amount of subsidy receivable from the Coal Board established under section 4 of the Coal Mines (Conservation and Safety) Act, 1952 with respect to any period before the appointed day did not fall within the purview 414 of the definition of 'mine ' contained in section 2(h)(xii), being excluded from the expression 'current assets ' by reason of the Explanation thereto.
It will be convenient in the first instance to deal with the first point which involves a mixed question of Law and fact.
The facts have still to be investigated but the parties seek a declaration of the Law in the light of which the issues may be determined.
The contains no provision for determining the question whether a particular asset falls within the definition of 'mine ' as defined in section 2(h) of the Act or not.
In the Nationalisation Act, 'mine ' in section 2(h) is defined, except What is immaterial, in the following terms: "2. Definitions.
In this Act, unless the context otherwise requires, XXX XXX XXX (h) 'mine ' means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes (vi) all lands, buildings, works, adits, levels, planes, machinery and equipments, instruments, stores, vehicles, railways, tramways and siding in, or adjacent to, a mine and used for the purposes of the mine; (vii) all workshops (including buildings, machinery, instruments, stores, equipment of such workshops and the lands on which such workshops stand), in, or adjacent to, a mine and used substantially for the purposes of the mine or a number of mines under the same management; XXX XXX XXX (xi) all lands and buildings other than those referred to in sub cl.
(x), wherever situated, if solely used for the location of the management, sale or liaison offices, or for the residence of officers and staff, of the mine: (xii) all other fixed assets.
movable and immovable, belonging to the owner of a mine, wherever situate, and current assets, belonging to a mine, whether within its premises or outside.
Explanation.
The expression 'current assets ' does not include, (a) dues representing the sale of coal and coal products effected at any time before the appointed day and outstanding immediately before the said day; 415 (b) dues from the Coal Board, established under section 4 of the , prior to the repeal of the said Act with respect to any period before the appointed day; (c) dues from sundry debtors, loans and advances to other parties and investments, not being investments in the coal mines;" It will be seen that there is a difference in the language used in section 2(h)(vii) and (xi).
Sub clause (vii) uses the words "in, or adjacent to, a mine" and "used substantially" for the purposes of the mine or a number of mines under the same management, in relation to workshops.
The use of the word 'and ' makes both the conditions conjunctive.
Sub clause (xi) uses the words "if solely used" for the location of the management, sale or liaison offices, or for the residence of officers and staff, of the mine, in relation to lands and buildings.
The difference in language between the two expressions "used substantially" and "solely used" is obvious.
It is, therefore, possible to contend that lands and buildings appurtenant to a coal mine, if not exclusively used for purposes of the colliery business, would not come within the definition of mine in section 2(h), i.e., it would depend upon the nature of user, and that the crucial date is the date of vesting.
We are inclined to think that the distinction though apparent may not be real in the facts and circumstances of a particular case.
A workshop or a building constructed initially for the purpose of a coal mine cannot by its being diverted to other purposes cease to belong to the mine.
What is of the essence is whether the workshop or the building originally formed a part and parcel of the coal mine.
The subsequent user may not, in our opinion, be very material.
To illustrate, a workshops which has come into existence for and because of the mine but which also comes to be used for purposes other than of the mine does not on that account alone cease to be a workshop used substantially for the purposes of the mine.
Again, a building which is constructed to locate the management offices of the mine but which is used to accommodate some other concern because of the availability of space does not on that account alone cease to be solely used for locating the management offices of the mine.
By reason of sub section
(1) of section 3 of the Act the right, title and interest of the owners in relation to the coal mines specified in the Schedule stand transferred to, and vest absolutely in the Central Government free from all incumbrances.
Parliament instead of providing that the word 'mine ' shall have the meaning assigned to it in the has given an enlarged definition of 'mine ' in section 2(h) so that 416 not merely the colliery but everything connected with the mining industry should vest in the Central Government, i.e., not only that part of the industry which consisted of raising, winning and getting coal but also that part of it which consisted in the sale of coal and its supply to customers both of which are a part of an integrated activity.
This is manifested by sub clauses (i) to (xii) of clause (h) of section 2, i.e., all the assets belonging to a mine vest in the Central Government.
As against this, the liabilities are not taken over.
Section 7 of the Act provides that every liability of the owner, agent, manager or managing contractor of a coal mine, in respect of any period prior to the appointed day shall be the liability of such owner, agent, manager or managing contractor, as the case may be, and shall be enforceable against him and not against the Central Government or the Government Company.
Thus, there was no question of setting up a Tribunal for adjudication of title to the properties vested.
Parliament by an enlarged definition of mine as contained in section 2(h) of the Act has indicated the nature of the properties that vest, and the question whether a particular asset is taken within the sweep of section 2(h) depends on whether it answers the description given therein.
Where there is a dispute as to whether a particular property vests or not, the dispute undoubtedly is a civil dispute and must, therefore, be resolved by a suit.
It was contended that the High Court should have gone into the question of title of the parties with respect to the properties in dispute particularly when sufficient documentary evidence was placed on record, as reflected in the judgment.
We are afraid the matter is not as simple as is suggested.
The documents on record merely tend to show that the engineering unit though adjacent to, was situate on a different plot, and there was an attempt to show that it was not a workshop in, or adjacent to, a mine.
We are of the view that this hardly matters.
Merely because the land on which a workshop of a coal mine is located bears a different plot number, or even if there is a compound wall between the main office of the coal mine and the workshop, it would not cease to be part of the mine.
The question in such cases will always be whether the workshop is 'located in, or adjacent to, a mine ', and was 'used substantially for the purposes of the mine under the same management '.
These are but essentially questions of fact to be deter mined according to the facts and circumstances of each particular case.
When the facts themselves are seriously controverted, the High Court was justified in observing that the dispute relating to the properties in question raised a 'serious question of title ' and the parties must get their rights adjudicated upon in a civil court.
417 It was pressed upon the High Court that the two businesses of Messrs Shethia Mining & Manufacturing Corporation viz., the colliery business and the engineering business were two separate and distinct businesses, for they were governed by two different sets of laws.
It was alleged that there were separate accounts kept, with a separate profit and loss account and a separate balance sheet with respect to each.
According to the management, therefore, the colliery business on the one hand and the engineering business on the other were treated severally for all purposes.
It was alleged that between the years 1968 and 1971, the total sales billed by the engineering unit were to the magnitude of Rs. 50,79,675.
As against this, the sales to the New Satgram Coal Mines were only to the tune of Rs. 3,71,384 representing the costs of light structurals supplied.
With respect to the remaining sum of Rs. 47,08,391 received by the engineering unit it was alleged to represent sales of light and medium structural works, for which no licence under the Industries (Development and Regulation) Act, 1951 was required, to various public sector undertakings like Hindustan Steel Construction Co. for Bokaro steel plant, Fertilizers & Chemicals Travancore for Durgapur Fertilizer Project, Hindustan Cables, Kapper India, Government of Nagaland etc.
viz., to parties altogether unconnected with the coal industry.
The question whether a workshop is 'substantially ' used for the purposes of a mine necessarily involves an enquiry as to whether it pertains to, or in substance is, part of the mine.
The value of jobs executed for the mine as against those for others is not really determinative of the question.
If a workshop is, in fact, a part of a coal mine, it does not cease to be so merely because its utilisation Lies in the production of materials supplied to third parties.
While a workshop may form part of a mine and is substantially used as such, it may be utilised for turning out other products; it all depends upon the circumstances of each case, whether it forms part of a mine or not.
The Union of India has joined issue by contending that not only the mine in question but also the workshop has vested in the Central Government.
The assertions made by the management with regard to workshop are all denied.
It is pleaded that the relationship and nexus of the said workshop is established by its being adjacent to the New Satgram Colliery and by the fact that the workshop was used substantially for the purposes of that mine and other mines under the same management as required by section 2(h)(vii) of the Nationalisation Act.
It is asserted that the management has rested their case on a bald statement that the workshop is not situate in, or adjacent to, a mine, with out supporting it with any documentary proof.
It is alleged that as soon as information regarding passing of the law vesting management 418 of the mine was derived, the management deliberately removed all the relevant books including the books of accounts which could have contradicted their present claim.
Obviously the claim of the appellant that the workshop was not substantially used for purposes of the mine is only an afterthought.
With regard to the Technical Director 's Bungalow, it is submitted by the Union of India that the said bungalow, wherever situate, is included in sub clause (xi) of clause (h) of section 2.
It is urged that merely because that the land under such building is not 'one falling within the mining area ' is wholly immaterial.
Even otherwise, the said bungalow, in any case, falls under sub clause (xii) of cl.
(h) of section 2 of the Act.
The said bungalow being a fixed asset belonging to the owners of the mine, forms part of the mine as defined in section 2(h)(xii).
As such, even assuming that the said bungalow was not used solely for the purpose of the residence of officers.
it would still be included in the definition of mine under the Nationalisation Act.
Reliance is also placed on the admission made by the management in para 11 of the writ petition that the workshop was 'closed down in July 1970 '.
The Management Act and the Nationalisation Act came into force in 1973.
The said workshop was, therefore, admittedly closed down about 3 years earlier.
As such, it is urged that there could be no question of the Technical Director of the coal mine being in charge of the said workshop at the relevant time so as to justify the plea raised by the management.
It is pointed out that the management have themselves admitted that the building in question was constructed in 1957 58 for the residence of the Technical Director, whereas the workshop was 'constructed in 1964 ', as stated in para 9 of the petition.
As regards the Guest House also, it is urged by the Union of India that for similar reasons it would be covered by sub cl.
(xi) or (xii) of cl.
(h) of section 2 of the Act.
The question whether the engineering unit was 'situate in, or adjacent to ', the New Satgram coal mine and was 'substantially ' used for purposes of the mine as well as the question whether the Technical Director 's Bungalow and the Guest House were 'solely ' used for the residence of officers and staff of the mine and, therefore, fall within the definition of 'mine ' as contained in section 2(h) of the Nationalisation Act, cannot obviously be decided in proceedings under article 226 of the Constitution.
The proper remedy is by way of a suit, as rightly observed by the High Court.
419 It is, however, urged that the filling of a suit would involve the parties into protracted litigation and inordinate delay in settling their claims.
The parties request that their dispute with respect to the New Satgram Engineering Works including Shethia Bhawan together with its all assets, Technical Director 's Bungalow and the Guest House be referred to arbitration.
This brings us to the main question, namely, as to the scope and effect of sub sections
(3) and (4) of section 19 of the Nationalisation Act.
On a construction of these provisions, the High Court was of the view that the Central Government, upto the specified day, i.e., June 30, 1975 were entitled to receive to the exclusion of all other persons.
any money due to the coal mine, after the appointed day, notwithstanding that realizations pertained to the period prior to that day: but with respect to any amounts which could not be realised until June 30, 1975 it held that they would be realizable by the erstwhile owners of the coal mines directly.
For a proper appreciation of the point involved, it is necessary to set out the provisions of section 19 which read as follows: "19.
Statement of accounts in respect of the period of management by the Central Government, etc. (1) The Central Government or the Government Company, as the case may be, shall cause the books in relation to each coal mine, the management of which has vested in it under the Coal Mines (Taking over of Management) Act, 1973, to be closed and balanced as on the date immediately before the appointed day, and shall cause a statement of accounts, as on that day, to be prepared, wishing such time, in such form and in such manner as may be prescribed, in relation to each such mine in respect of the transaction effected by it during the period for which the management of such coal mine remained vested in it: Provided that where two or more coal mines were owned, before the commencement of this Act, by the same owner, a consolidated statement of accounts may be Prepared for all the coal mines owned by such owner.
(2) All amounts received by the Central Government or the Government company after the closure of such accounts shall where such accounts relate to transactions effected before the appointed day, be included in the said statement of accounts in respect of the coal mine to which the said receipt relates.
(3) The Central Government or the Government company in which the right, title and interest of coal mine stand vested shall 420 be entitled to receive, up to the specified date, to the exclusion of all other persons any money, due to the coal mine.
realised after the appointed day notwithstanding that the realizations pertain to a period prior to the appointed day.
Provided that where such realizations have not been included in the statement of accounts as on the day immediately before the appointed day, a supplementary statement of accounts shall be prepared and furnished, at such intervals as may be prescribed, by the Central Government or the Government company to the owner of the coal mine.
(4) The liabilities of the coal mine (not being liabilities arising out of advances made by the Central Government or the Government company), which could not be discharged by the appointed day, may be discharged by the Central Government or the Government company up to the specified date, and every payment so made shall be included in the statement of accounts as on the day immediately before the appointed day, indicating therein the period in relation to which the payments were made: Provided that the liabilities in relation to the period prior to the appointed day, which have not been discharged on or before The specified date, shall be the liabilities of the owner of the coal mine.
" x x x x x In this context, the provisions of sub section
(2) of section 18 may also be read.
It runs thus: "18.
Payment by the Central Government to the Commissioner.
x x x x x (2) In relation to the sum referred to in sub section (1), the Central Government shall pay, in cash, to the Commissioner such amount as may become due to the owner of a coal mine in relation to the period during which the management of the coal mine remains vested in The Central Government.
" It was said that by reason of the Explanation to section 2(h) inserted by the Coal Mines Nationalisation Laws (Amendment) Act, ]978, the expression 'current assets ' used in sub cl.(xii) does not include (a) dues representing the sale of coal and coal products effected at any time before the appointed day and outstanding immediately before the said date, and (b) dues from the Coal Board, established under s.4 of the prior to the repeal of the said Act, with respect to any period before the 421 appointed day.
It was, accordingly, urged that these two items do not fall within the purview of the definition of 'mine ' as defined in s.2(h)(xii).
and, therefore, they did not vest in the Central Government under sub s.(1) of s.3 of the Act.
It was urged that the erstwhile owners of coal mines and not the Central Government were entitled to deal with these assets, as they belong to The owners of the coal mines and not to the Central Government.
The submission proceeds on a complete misconception of the scheme of the Act.
The learned Attorney General contends that according to the provisions of sub ss.(3) and (4) of section 19, the Central Government or the Government company was exclusively entitled to receive the moneys in question to the exclusion of other persons upto the specified date and to utilities the same in discharge of the liabilities of the coal mine which could not be discharged by the appointed day.
It is urged that sub sections
(3) and (4) are part of an integrated scheme and must be read along with sub s.(2) of s.18.
We are clearly of the opinion that the contention advanced by the learned Attorney General accords with the real legislative intent.
Under the scheme of the Act, the owner of the coal mine which has vested in the Central Government under sub s.(1) of s.3 is entitled to receive, besides the compensation amount as determined under s.8, additional compensation amount under sub s.(1) of s.9, simple interest thereon at 4% per annum for the period specified therein, together with 'such amount as may become due ' to the owner of the coal mine in relation to the period during which the management of the coal mine remained vested in the Central Government as provided by sub s.(2) of s.18.
To understand the correlation of sub sections
(3) and (4) of section 19 with sub s.(2) of s.18 of the Act.
it is necessary to refer to the provisions of Chapter VI entitled 'Commissioner of Payments ' which provides for the computation of the amount of compensation and other amounts payable to the erstwhile owners of coal mines, and for matters connected therewith or incidental thereto.
The provisions of Chapter VI are brought into operation by the appointment of a Commissioner of Payments by the Central Government under sub s.(1) of s.17.
There is a statutory duty cast on the Central Government under sub s.(1) of s.18 that it shall, within 30 days from the specified date, pay, in cash, to the Commissioner for payment to the owner of the coal mine an amount equal to the amounts specified against the coal mine in the Schedule and shall also pay to the Commissioner such sums as may be due to the owner of a coal mine under section 9.
(2) of section 18 quoted above enjoins that, 422 in addition to the sum referred to in sub s.(1), the Central Government shall pay, in cash to the Commissioner 'such amount as may become due to the owner of a coal mine ' in relation to the period during which the management of the coal mine remained vested in the Central Government.
It is then provided by sub s.(3) of s.18 that a deposit account shall be opened by the Central Government in favour of the Commissioner, in the Public Account of India, and every amount paid under this Act to the Commissioner shall be deposited by him to the credit of the said deposit account, and thereafter the said deposit account shall be operated by the Commissioner.
Separate records are required to be maintained by the Commissioner under sub s.(4) of s.18 in respect of each coal mine in relation to which payments have been made by him under the Act.
Under sub s.(5) of section 18, interest accruing on the amounts standing to the credit of the deposit account referred to in sub s.(3) shall inure to the benefit of the owners of coal mines.
Section 19 of the Act provides for the preparation by the Central Government of a statement of account in respect of the period of management.
The Central Government is required under sub section
(1) of s.19 to cause the books of accounts in relation to each coal mine, the management of which has vested in it under the Coal Mines (Taking over of Management) Act, 1973 to be closed and balanced as on the date immediately before the appointed day, i.e., April 30, 1973, and to cause a statement of accounts as on that date, to be prepared in relation to each such mine in respect of the transactions effected by it during the period for which the management of such coal mine remained vested in it.
Under sub s.(2) of s.19, all amounts received by the Central Government or the Government company after the closure of such accounts where such accounts relate to transactions effected before the appointed day, to be included in the said statement of accounts, in respect of the coal mine to which such receipts relate.
Under sub s.(3) of s.19, the Central Government is conferred power to receive up to the specified date, i.e., June 30, 1975 any amount due to the coal mine, to the exclusion of all other persons, realised after the appointed day notwithstanding that the realizations pertained to a period prior to the appointed day.
Proviso to sub s.(3) enjoins that where such realizations have not been included in the statement of accounts as on the day immediately before the appointed day, a supplementary statement of accounts shall be prepared and furnished, at such intervals, as may be prescribed by the Central Government or the Government company to the owner of the coal mine.
By sub section
(4) of section 19, a duty is cast on the Central Government to discharge.
423 the liabilities of the coal mine, which could not be discharged upto the specified date, i.e., June 30, 1975 and every payment so made is to be included in the statement of accounts as on the day immediately before the appointed day, indicating the period in relation to which the payments were made.
It is plain on a reading of these provisions, that unless the requirements of s.19 are fulfilled there can be no ascertainment of 'such amount as may become due ' to the owner of a coal mine, in relation to the period during which the management of the coal mine remained vested in the Central Government, as required under sub s.(2) of section 18.
Any other construction would render sub section
(2) of section 18 entirely otiose.
The amounts collected on behalf of the erstwhile owners of coal mines, represent the money of such owners without distinction and whether they were sale proceeds of coal or realizations from debtors, the amounts were liable to be spent not only in the discharge of liabilities of the coal mine which could not be discharged by the appointed day, but also were liable to be spent for the purposes of management.
All the rights and liabilities arise from the provisions of the Acts, and the net balance in relation to the management period means the difference between authorized collections and legitimate liabilities of the erstwhile owners.
It is necessarily this balance which 'becomes due in relation to the period during which the management of the coal mines remained vested in the Central Government ' within the meaning of sub s.(2) of s.18.
It would, therefore, be obvious that the various steps provided by s.19 are to be taken for the compliance of the requirements of s.18.
When there is payment made by the Central Government under s.18.
the provisions of ss.20 27 become attracted.
Every person having a. claim against the owner of a coal mine has to prefer such claim under sub s.(1) of s.20 before the Commissioner of Payments within 30 days from the specified date.
Proviso to sub s.(1) confers powers on the Commissioner of Payments to entertain such claim within a further period of 30 days but not thereafter, on being satisfied that the claimant was prevented by sufficient cause from preferring the claim within the specified period.
Under sub s.(2) of s.20 claims in relation to a Provident Fund, Pension Fund, Gratuity, etc., established for the welfare of the persons employed by the owner of a coal mine may be filed on behalf of the persons so empowered by the Coal Mines Provident Fund Commissioner appointed by the Central Government, under s.3C of the Coal Mines Provident Fund, Family Pension and Bonus Schemes Act, 1948.
By sub s.(3) of s.20 the Commissioner of Payments is empowered to entertain claims, not being a claim which was time barred on January 31, 1973, but was rejected merely on the 424 ground that such claim was time barred, and such claim should be deemed not to have been rejected and shall be restored on his file and shall be dealt with in the manner specified in s.23.
Section 21 provides for priority of claims in relation to arrears of Provident Fund, Pension, Gratuity, etc.
Section 22 provides for priority of certain debts in relation to every other claim, viz. (a) all sums due to the State Government including royalty and dead rent, (b) all amounts due in respect of any compensation or liability for compensation under the Workmen Compensation Act, 1923 etc.
, (c) all sums deducted by the employer from the salary or wages of any workman or any other employee for credit to any Provident Fund, or any other fund established for the welfare of the employees, but not deposited to the credit of such fund.
Sub section (3) of s.22 provides that the debts specified in sub s.(2) shall rank equally among themselves and be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportion and be paid accordingly.
Admission or rejection of claims by the Commissioner of Payments is provided fol by section 23 disbursement of amounts by him to the claimants by section 24 payment of interest on admitted claims by s.24A, recovery of amounts advanced by the Central Government by s.25.
It is after meeting all these liabilities that the Commissioner of Payments is required to serve a notice on the owners of the coal mines, the managing contractors, and the owners of any machinery, equipment or other property which has vested in the Central Government or a Government company under the Act and which does not belong to the owners of the coal mines, may apply to him for payment.
Under the scheme of the Act the owner of a coal mine is entitled to the payment by the Commissioner of Payments under s.26, of the balance, if any, out of the total amount of money credited to the account of a coal mine ', after he has gone through all the stages provided for in Chapter VI.
Sub s.(1) of s.26 of the Act reads: "26.
Disbursement of amounts to the owners of coal mines. (1) If out of the monies paid to him in relation to a coal mine or group of coal mines specified, in the second column of the Schedule, there is a balance left after meeting the liabilities of all the secured and unsecured creditors, the Commissioner shall disburse such balance to the owner of such coal mine or group of coal mines.
" Such being the scheme, there is no question of the owner of a coal mine, who is divested of his right, title and interest under sub s.(1) of s.3 to realise from The Central Government any amount due to a coal 425 mine, which remained to be realised until the specified date, i.e., June 30, 1975.
The Commissioner of Payments is, therefore, required under s.26 to pay to the owner of such coal mine the balance left, if there is any, out of the monies paid to him in relation to a coal mine, after meeting the liabilities of all the secured and unsecured creditors.
Sub section (5) of s.26 makes a provision for apportionment of such amount between the owner of the coal mine and the owner of machinery, equipment and other property which does not belong to the owner of the coal mine.
Any amount which remains undisbursed or unclaimed for a period of three years has to be transferred by the Commissioner of Payments to the General Revenue Account of the Central Government under s.27.
In view of all these provisions of ss.20 to 27 of the Act, and particularly of sub s.(1) of s.26, we fail to see the propriety of the claim made by the petitioners.
The petitioners are certainly not entitled to recover any definite or ascertained sum.
All that they are entitled to under sub s.(5) of s.19 is that they should be furnished with a copy of each statement of accounts prepared under s.19, to its being audited under sub s.(6) and to the audit being conducted in such manner as the Central Government may direct under sub s.(7), and to the payment under sub s.(1) of s.26 of the balance if any, out of the total amount of money credited to the account of a coal mine after all the liabilities have been discharged.
The learned Attorney General makes a statement that this has all been done before a Commissioner of Payments was appointed under sub s.(1) of s.17.
Nevertheless, the petitioners assert that the Central Government has not accounted for the realisation, if any, and the disbursement of two amounts of Rs. 68.74 lakhs and Rs. 58.22 lakhs, representing the outstanding dues from sundry debtors as on the appointed day, i.e., January 31, 1973 and the value of coal despatched from the mines in question during the period of management, i.e., from January 31, 1973 and April 30, 1973 respectively.
In view of this assertion, we direct the Central Government to appoint a Commissioner of Payments under sub s.(1) of section 17 of the to go into the dispute as to these items.
There still remains the question whether the powers of the Central Government under sub ss.(3) and (4) of s.19 of the Act extend only up to the specified date, that is, up to June 30, 1975.
In dealing with the question, the High Court having regard to the provisions of ss.20 to 27 of the Act rightly observes that the Nationalisation Act 426 provides for claims to be preferred and for disbursement after adjudication of such claims, and if any balance is left after meeting the liabilities, it is only then that the Commissioner of Payments can under sub s.(1) of s.26 disburse it to the owner of the coal mine.
It then goes on to say: "however, any amount which could not be realised until June 30, 1975 would be realisable by the erstwhile coal mine owners directly.
" To put it conversely, there is no duty cast on the Central Government to make realisation of any money due to a coal mine if it pertains to a period prior to the appointed day, and to discharge the liabilities of the coal mine beyond the specified date, that is, June 30, 1975.
To understand the implications of this it is necessary to briefly deal with the different stages by which nationalisation of coal mines was brought about.
There are three dates. 'Appointed day ' under s.2(1) of the Management Act was January 31, 1973; that under the Nationalisation Act was May 1, 1973 while the 'specified date ' for purposes of sub ss.(3) and (4) of s.19 was June 30, 1975.
All that vested in the Central Government under sub s.(1) of s.3 of the Management Act was the management of all coal mines, as defined in s.2(g) of the Act, which included sundry debts etc.
, pending nationalisation of such mines, with effect from the appointed day, i.e., January 31, 1973.
But this was only for the purposes of management, the title all the time remaining in the erstwhile owners of the coal mines.
In the course of management under that Act, all the collections belonged to the owners; and the liabilities also in relation to the mines were the liabilities of the owners.
The Custodian appointed by the Central Government under s.6 of the Management Act was liable for the net balance in relation to the management period.
He had the right to collect and also the right to incur expenditure in relation to the management by reason of the provisions of that Act.
The Nationalisation Act received the assent of the President on May 30, 1973 but the provisions of sub s.(1) of section 3 were brought into force with retrospective effect, that is, with effect from the appointed day i.e., May 1, 1973.
It follows that although there was a complete extinction of all the rights, title and interest of the owners of coal mines with effect from May 1, 1973, there was a fictional extension of the period of management under the Management Act from May 1 to May 30, 1973.
There is, therefore, provision made in s.9 that apart from the amount of compensation provided for by s.8, as 427 mentioned in the Schedule, the owners of every coal mine shall be entitled to receive additional compensation under sub s.(1) thereof.
This was to be an amount equal to the amount which would have been, but for the provisions of sections 3, 4 and 5 payable to such owner for the period commencing on May 1, 1973 and ending on the date on which the Act received the assent of the President, that is, May 30, 1973.
Under sub s.(1) of s.11 the Central Government is entitled to exercise all such powers and to do all such things as the owner of the coal mine was authorised to do.
The conferral of power upon the Central Government under sub ss.(3) and (4) of s.19 to make realisation of monies due to the coal mines and from such realisations to discharge the liabilities as well as to incur expenses in relation to the management thereof, was a necessary concomitant of the vesting of such coal mines under sub s.(1) of s.3 of the Act.
Sub section (1) of s.3 provides that the right, title and interest of the owners in relation to the coal mines shall vest in the Central Government free from all incumbrances.
As set out above, the definition of coal mine in s.2(h)(xii) includes the current assets belonging to a mine, but by reason of the Explanation inserted by the Goal Mines Nationalisation Laws (Amendment) Act, 1978, the expression "current assets" appearing therein does not include amounts which had become due before the appointed day, i.e., May 1, 1973.
Thus, these dues did not vest in the Central Government.
This exclusion of sundry debts under the Nationalisation Act does not apply to the Management Act because there was no similar explanation to s.2(g)(xii).
The Management Act was to be followed by the Nationalisation Act and, therefore, the accountability of the Central Government in regard to the management period was provided for in s.19 of the Nationalisation Act.
Although there was vesting of the coal mines in the Central Government under sub s.(1) of s.3 of the Act, the accounts had still to be settled.
Sub sections (3) and (4) of s.19 therefore, extended the period during which the Central Government was authorised to collect monies due to the coal mines and to discharge the liabilities of such coal mines which could not be discharged by the appointed day, that is, May 1, 1973, till the specified date i.e., June 30, 1975.
As we have stated, the liabilities of the coal mines were not taken over.
Section 7 of the Act, in terms, provides that every liability of the owner, agent, manager or managing contractor of a coal mine in respect of any period prior to the appointed day shall be the liability of the owner, agent, manager or managing contractor, as the case may 428 be, and shall be enforceable against him and not against the Central Government or the Government company.
It logically follows that after the specified date, i.e., June 30, 1975 the erstwhile owners of coal mines would have to meet all their liabilities which could not be discharged before the appointed day.
It must result in the inevitable consequence, as a necessary corollary that any amount which could not be realised by the Central Government until the specified date, would be realisable by them directly in order to meet their pre existing liabilities.
In Industrial Supplies Pvt. Ltd. & Anr.
vs The Union of India & Ors.
we have by our Judgment delivered on August 7, 1980 held that the subsidy receivable from the erstwhile Coal Board, established under s.4 of the Coal Mines (Conservation and Safety) Act, 1952, being a payment "by way of reimbursement" was like any other dues, and, therefore, must be treated as 'any money due to the coking coal mine ' within the meaning of sub s.(3) of 9.22 of the , and, therefore, it could be utilised for the discharge of liabilities of such coking coal mines under sub s.(4) thereof, which provisions are in pari materia with sub sections
(3) and (4) of s.19 of the .
We accordingly, set aside the direction made by the High Court requiring the Union of India to pay to the petitioners Rs. 7,28,342.54 which it had recovered from the erstwhile Coal Board as subsidy.
If the Commissioner of Payments finds that these two items of Rs. 68.74 lakhs and Rs. 58.22 lakhs and the subsidy amount of Rs. 7,28,342.54 have been duly accounted for, nothing further need be done.
Obviously, the Commissioner of Payments cannot make an award, he can only enquire into the question and make the necessary directions, if any.
The parties will have their remedy of an appeal under sub s.(7) of s.23 of the Act.
The result, therefore, is that the appeal of the Union of India must succeed and is allowed and that of the New Satgram Engineering Works fails and is dismissed, with costs throughout.
The judgment and order of the High Court is, accordingly modified by directing the appointment of a Commissioner of Payments under sub s.(1) of s.17 of the , who shall proceed to adjudicate upon the disputes between the parties, with advertence to the observations made above.
In accordance with our order dated May 9, 1980, we direct the Central Government to appoint Sri Salil Kumar Datta, a retired Judge 429 of the Calcutta High Court, as a Commissioner of Payments under sub s.(1) of s.17 of the .
Sri Datta will also act as an Arbitrator to adjudicate upon the disputes as indicated in our judgment delivered today with advertence to the observations made therein.
Sri Datta as a Commissioner of Payment cum Arbitrator shall be entitled to draw his last pay as a Judge of the Calcutta High Court.
This order is made by consent of the parties.
The learned Attorney General stated at the hearing that a retired Judge of the Calcutta High Court should be appointed as a Commissioner of Payments and he should also act as an Arbitrator.
The learned counsel for the opposite party agreed to this course being adopted.
They left the choice of the person to be appointed to the Court.
Due to inadvertence, certain typographical errors have crept in our order dated May 9, 1980.
We direct that the clerical errors be corrected.
At p.2, in the 5th line, for the words and figures "April 3, 1973", the words and figures "April 30, 1973" be substituted.
In the 6th line on that page, for the words and figures "June 30, 1976", the words and figures "June 30, 1975" be inserted.
It is regrettable that certain other errors have also crept in, which we have rectified in our judgment delivered today.
The order dated May 9, 1980 stands corrected accordingly.
It shall be read in the light of the judgment pronounced by us in these appeals.
S.R. C.A. 1331/79 dismissed.
C.A. 426/80 allowed.
| IN-Abs | M/s. Shethia Mining and Manufacturing Corporation, Calcutta owned three non coking coal mines one of which was New Satgram Coal Mines.
besides a workshop called the New Satgram Engineering Works built on a plot adjacent to the New Satgram Coal Mines in 1964, a building known as the Technical Director 's Bungalow, built somewhere in 1957 58 outside the mining area but adjacent to it, and another building constructed in 1960 61 on the same plot of land, namely the Guest House used for the residence of officers and staff of mines.
The management of the New Satgram Coal Mines along with two other coal mines was taken over by the Central Government under the Coal Mines.
(Taking over of Management) Act, 1973, with effect from January 31, 1973.
Thereafter the was passed and by virtue of section 3(1) thereof, the right title and interest of M/s. Shethia Mining and Manufacturing Corporation vested in the Central Government with effect from May 1973 and subsequently by a notification in the Government company that is, the Coal (India) Ltd.
On May 17, 1973, the Central Government took over possession of the Technical Director 's Bungalow and the Guest House.
The. appellants who had filed two writ petitions challenging the taking over and the Nationalisation Act in the Supreme Court withdrew them and filed a petition under Article 226 of the Constitution in the Delhi High Court for the issuance of a writ or direction in the nature of mandamus in regard to the taking over of New.
Satgram Engineering Works and the dues pertaining to the New Satgram Coal Mines and New Majri Coal Mines.
The High Court partly allowed the petition but declined to go into the question as to whether the Engineering Unit, together with Shethia Bhavan and all its assets etc the Technical Director 's Bungalow and Guest House were or not covered by the definition.
of the term "mine" in section 2(h)(vi), (vii) & (xi) of the Nationalisation Act.
Hence the appeals by special leave one by New Satgram Engineering Works and the other by the Union of India.
Allowing the Government 's appeal and dismissing the appeal of the Engineering Works, the Court ^ HELD: (1) When the facts themselves are seriously controverted, the dispute relating to the properties in question raise a "serious question of title" and the parties must get their rights adjudicated upon in a civil court and not 407 under article 226 of the Constitution.
The question whether the engineering unit, was "situate in, or adjacent to" the new Satgram Coal Mines and was "substantially" used for the purposes of the mine as well as the question whether the Technical Director 's Bungalow and the Guest House were "solely" used for the residence of officers and staff of the mine and! therefore.
fell within the definition of 'mine ' as contained in section 2(h) of the Nationalisation Act, cannot be decided in proceedings under article 226 of the Constitution.
The proper remedy is by way of a suit.
[416H; 418G H] (2) Parliament instead of providing that the word 'mine ' shall have the meaning assigned to it in the , has given an enlarged definition of 'mine ' in section 2(h) so that not merely the colliery but everything connected with the mining industry should vest in the Central Government, that is, not only that part of the industry which consisted of raising, winning and getting coal but also that part of it which consisted in the sale of coal and its supply to customers both of which are a part of an integrated activity.
Parliament by an enlarged definition of mine as contained in section 2(h) of the Act has indicated the nature of the properties that vest, and the question whether a particular asset is taken within the sweep of i. 2(h) depends on whether it answers the description given therein.
[415 H, 416 A D] (3) The language used in section 2(h)(vii) and (xi) of the are different.
Sub clause (vii) used the words "in, or adjacent to, a mine" and "used substantially" for the purposes of the mine or a number of mines under the same management, in relation to workshops.
The use of the word 'and ' makes both the conditions conjunctive.
Sub Clause (xi) used the words "if solely used" for the location of the management, sale or liaison offices, or for the residence of officers and staff of the mine, in relation to lands and buildings.
The difference in language between the two expressions "used substantially" and "solely used" is clear.
A workshop cr a building constructed initially for the purpose of a coal mine cannot by its being diverted to other purposes cease to belong to the mine.
What is of the essence is whether the workshop or the building originally formed a part and parcel of the coal mine.
The subsequent user may not b. very material.
[415 B E] (4) Merely because the land on which a workshop of a coal mine is located bears a different plot number, or even if there is a compound wall between the main office of the coal mine and the workshop, it would not cease to be part of the mine.
The question in such cases will always be whether the workshop is "located in, or adjacent to, a mine" and was "used substantially for the purposes of the mine under the same management".
Further the question whether a workshop is "substantially" used for the purposes of a mine necessarily involves an enquiry as to whether it pertains to, or in substance is, part of the mine.
The value of jobs executed for the mine as against those for others is not really determinative of the question.
If a workshop is, in fact a part of a coal mine, it does not cease to be so merely because its utilisation lies in the production of materials supplied to third parties.
While a workshop may form part of a mine and is substantially used as such, it may be utilised for turning out other products; it all depends upon the circumstances of each case, whether it forms part of a mine or not.
[416F G, 417 D F] (5) Sub sections (3) and (4) of section 19 of the Act are part of an integrated scheme and must be read with sub section (2) of section 18.
According to the provisions of sub sections (3) and (4) of section 19 the Central 408 Government, or the Government company was exclusively entitled to receive monies in question to the exclusion of other persons up to the specified ate and to utilise the same in discharge of the liabilities of the coal mine which could not be discharged by the appointed day.
Under the scheme of the Act, the owner of the coal mine which has vested in the Central Government under sub section (1) of section 3 is entitled to receive, besides the compensation amount as determined under section 8, additional compensation amount under sub section (1) of section 9, simple interest thereon at 40% per annum for the period specified therein, together with "such amount as may become due" to tho owner of the coal mine in relation to the period during which the management of the coal mine remained vested in the Central Government 35 provided by sub section (2) of section 18.
[421 C E] Provisions in sections 8, 9, 18 and 19 make it clear that unless the requirements of section 19 are fulfilled there can be no ascertainment of "such amount as may become due" to the owner of a coal mine, in relation to the period during which the management of the coal mine remained vested in the Central Government, as required under sub section (2) of section 18.
Anr other construction would render sub section (2) of section 18 entirely otiose.
The amounts collected on behalf of the erstwhile owners of coal mines, represent the money of such owners without distinction, and whether they were sale proceeds of coal or realisations from debtors.
the amounts were liable to be spent not only in the discharge of liabilities of the coal mine which could not be discharged by the appointed day, but also were liable to be spent for the purposes of management.
All the rights and liabilities arise from the provisions of the Acts, and the net balance in relation to the management period, means the difference between authorised collections and legitimate liabilities of the erstwhile owners.
It is necessarily this balance which "becomes due in relation to the period during which the management of the coal mines remained vested the Central Government" within the meaning of sub section (2) of section 18.
[423 B E] When there is a payment made by the Central Government under subs.
(2) of section 18, the elaborate procedure provided under sections 20 27 have to be followed.
The owner of a coal mine is entitled to the payment by the Commissioner of Payments, under section 26 of "the balance, if any out of the total amount of money credited to the account of the coal mine" after he has gone through all the stages provided for in Chapter VI.
Such being the scheme, there is no question of the owner of a coal mine, who is divested of his right, title and interest under sub section (1) of section 3 to realise from the Central Government any amount due to a coal mine, which remained to be realised until the specified date, that is, June 30, 1975.
In the instant case, in view of all these provisions of sections 20 to 27 of the Act and particularly, of sub section (1) of section 26 the claims made by the appellants Engineering Works are not proper.
They are certainly not entitled to recover any definite or ascertained sum.
All that they are entitled to under sub section (5) of section 19 is that they should be furnished with a copy of each statement of accounts prepared under section 19, to its being audited under sub section (6) and to the audit being conducted in such manner as the Central Government may direct under sub section (7), and to the payment under sub section (1) of section 26 of the balance, if any, out of the total amount of money credited to the account of a coal mine after all the liabilities have been discharged.
[423F, 424F H, 425A, D E] (6) There is no duty cast on the Central Government to make realisations 409 of any money due to a coal mine if it pertains to a period prior to the appointed, day, and to discharge the liabilities of the coal mine beyond the specified dated that is, June 30, 1975.
The 'appointed day ' under section 2(a) of the Management Act under the Nationalisation Act was January 31, 1973 and May 1, 1973 respectively; while the 'specified date ' for purposes of sub sections (3) & (4) of section 19 was June 30, 1975.
All that vested in the Central Government under sub section (I) of section 3 of the Management Act was the management of all coal mines, as defined in section 2(g) of The Act, which included sundry debts etc.
, pending nationalisation of such mines, with effect from the appointed day, that is, January 31, 1973.
But this was only for the purposes of management, the title all the time remaining in the erstwhile owners of the coal mines.
In the course of management under that Act, all the collections belonged to the owners, and the liabilities also in relation to the mines were the liabilities of the owners. 'The Custodian appointed by the Central Government under section 6 of the Management Act was liable for, the net balance in relation to the management period.
He had the right to collect and also the right to incur expenditure in relation to the management by reason of the provisions of that Act.
[426 C F] (7) The conferral of power upon the Central Government under subsections (3) and (4) of section 19 to make realisation of monies due to the coal mines and from such realisation to discharge the liabilities as well as to incur expenses in relation to the management thereof, was a necessary concomitant of the vesting of such coal mines under sub section (I) of section 3 of the Act.
The Nationalisation Act received the assent of the President on May 30, 1973 but the provisions of sub section (I) of section 3 were brought into force with retrospective effect, that is, with effect from the appointed day, that is, May 1, 1973.
It follows that, although there was a complete extinction of all the rights, title and interest of the owners of coal mines with effect from May 1. ; 1973, there was a fictional extension of the period of management under the Management Act from May 1 to May 30, 1973.
There is, therefore, provision made in section 9 that apart from the amount of compensation provided for by section 8, as mentioned in the Schedule, the owners of every coal mine shall be entitled to receive additional compensation under sub section (I) thereof.
This was to be an amount equal to the amount which would have been, but for the provisions of sections 3, 4 and S payable to such owner for the period commencing on May 1, 1973 and ending on the date on which the Act received P the assent of the President that is, May 30, 1973.
Under sub section (1) of section 11 the Central Government is entitled to exercise all such things as the owner of the coal mine was authorised to do.
[427C, 426G 427B] (8) The definitions of coal mine in section 2(h)(xii) includes the current assets belonging to a mine.
but by reason of the explanation inserted by the Coal Mines Nationalisation (Amendment) Act, 1978, the expression "current assets" appearing therein does not include amounts which had become due before the appointed day, that is, May 1, 1973.
Thus these dues did not vest in the Central Government.
This exclusion of sundry debts under the Nationalisation Act does not apply to the Management Act because there was no similar explanation to section 2(g)(xii) of that Act.
[427 D E] (9) The Management Act was to be followed by the Nationalisation Act and, therefore, the accountability of the Central Government in regard to the management period was provided for in section 19 of the Nationalisation Act.
Although there was vesting of the coal mines in the Central Government under 410 sub section (1) of section 3 of the Act, the accounts had still to be settled Sub sections (3) and (4) of section 19, therefore, extended the period during which the Central Government was authorised to collect monies due to the coal mines and to discharge the liabilities of such coal mines which could not be discharged by the appointed day, that is, May 1, 1973 till the specified date, that is, June 30, 1975.
The liabilities of the coal mines were not taken over under the Management Act.
Section 7 of the Nationalisation Act implies that after the specified date, that is, June 30, 1975 the erstwhile owners of coal mines would have to meet all their liabilities which could not be discharged before the appointed day.
It must result in the inevitable consequence, as a necessary corollary that any amount which could not be realised by the Central Government until the specified date, would be realisable by the owners directly in order to meet their pre existing liabilities.
[427 F 428 B] (10) Provisions of sub section (4) of section 19 of the are in part materia with sub section (3) of section 22 of the .
The subsidy receivable from the erstwhile Coal Board established under section 4 of the Coal Mines (Conservation and Safety) Act, 1952, being a payment "by way of reimbursement" was like any other dues, and, therefore, must be treated as 'any money due to the coking coal mine '.
Therefore, the directions made by the Court requiring the Union of India to pay to the Satgram Engineering Works Rs. 7,28,342 54 which is to be recovered by the erstwhile Coal Board as subsidy, is incorrect.
[428C D] Industrial Supplies Pvt. Ltd., & Anr.
vs The Union of India & Ors.
[1981] 1 SCR p. 375, followed.
|
Appeal No. 139 of 1953.
Appeal by special leave from the judgment and order dated the 22nd day of August 1950 of the Nagpur High Court in Miscellaneous Petition No. 67 of 1950.
Radhey Lal Agarwala and B. P. Maheshwari, for the appellant.
C. K. Daphtary, Solicitor General of India (G. N. Joshi and R. H. Dhebar, with him) for the respondents.
February 15.
VENKATARAMA AYYAR J.
The firm of Bhagat Ram Mohanlal, which is the appellant before us, was constituted on 23 8 1940, and registered under section 26 A of the Indian Income tax Act, The partners of 146 the firm, according to the registration certificate, were (1) Bhagat Ram Mohanlal, Hindu undivided family, (2) Richpal and (3) Gajadhar, their shares being respectively 8 annas, 4 annas and 4 annas Mohan lal was the, karta of the aforesaid joint family, which consisted of himself and his two brothers, Chhotelal and Bansilal, and he entered into the partnership as such karta.
The firm carried on business at Drug in Madhya Pradesh as the agent of the Government for the purchase of foodgrains, and during the accounting years ending 1943 and 1944, it made profits on which it was assessed to excess profits tax respectively of Rs. 10,023 5 0 and Rs. 13,005 5 0.
During the year 1944 1945 it sustained a loss of Rs. 15,771, and adding it to the sum of Rs. 37,800 which was the standard profits for the business, the Excess Profits Tax Officer determined the deficiency of profits for the year at Rs. 53,571.
Section 7 of the Excess Profits Tax Act, hereinafter referred to as the Act, provides that when there is a deficiency of profits in any chargeable accounting period in any business, the profits of that business during the previous years shall be deemed to be reduced eo extanti, and that the relief necessary to give effect to the reduction shall be given by repayment of the tax paid or otherwise.
Acting under this section, the Excess Profits Tax Officer passed an order on 23 12 1946 whereby after setting off the profits of the firm for the years ending 1943 and 1944 against the deficiency of profits during the year ending 1945, he directed a refund of Rs. 23,028 10 0 which had been paid by the appellant as excess profits tax for those years.
It should be mentioned that at the commencement of the assessment year 1944 1945 there was a partition in the joint family of which Mohanlal was the erstwhile karta, as a result of which he and his brothers, Chhotelal and Bansilal, became divided in status.
Consequent on this disruption of the joint family, the appellant firm was reconstituted under an agreement dated 17 10 1944.
Under this agreement, the partners of the firm were five in number, Richpal .Gajadhar Mohanlal, Chhotelal and Bansilal, the two 147 former being entitled to 5 annas share each and the latter three to 2 annas each.
There was thus a reconstitution of the firm both with reference to the persons who were its partners and the shares which were allotted to them.
Now, section 8(1) provides, omitting what is not material, that "as from the date of any change in the persons carrying on a business, the business shall be deemed to have been discontinued and a new business commenced".
If this section applied, then no relief could have been granted to the appellant under section 7 of the Act.
The facts relating to the reconstitution of the firm having come to the knowledge of the Commissioner of Excess Profits Tax on examination of the record, he issued a notice on 19 2 1948 calling upon the appellant to show cause why the order of the Excess Profits Tax Officer dated 23 12 1946 should not be set aside on the ground of mistake.
This notice was issued under section 20 of the Act, which confers on the Commissioner authority to rectify "any mistake apparent from the record".
The mistake, according to the Commissioner, consisted in the Excess Profits Tax Officer failing "to take into consideration the change in the constitution of the firm which took place on 17 10 1944, consequent on the disruption of the joint Hindu family of one of the partners".
The appellant appeared in response to the notice, and contended that on the facts the proceedings under section 20 were misconceived.
The facts on which the proceedings were taken were not themselves disputed.
By his order dated 15 3 1950 the Commissioner held that on the facts disclosed on the record, there was a change in the persons carrying on the business, and that the award of relief under section 7 by the Excess Profits Tax Officer was a mistake.
He, however, maintained the order dated 23 12 1946 with reference to Richpal and Gajadhar, and set it aside only so far as "Bhagat Ram Mohanlal, Hindu.
undivided family" which was registered as partner on 23 8 1940, was concerned.
He further directed that Rs. 11,514 5 0 which had been refunded to it should be collected.
148 The appellant thereupon moved the High Court of Nagpur under article 226 for a writ of certiorari quashing the order of the Commissioner dated 15 3 1950 and for a writ of prohibition restraining the authorities from collecting Rs. 11,514 5 0 under that order.
By their judgment dated 22nd August 1950, the learned Judges agreed with the Commissioner that by reason of the partition there was a change in the persons who carried on the business, and that the order dated 23 12 1946 was contrary to section 8(1) of the Act.
They also held that as the mistake appeared on the face of the record, the Commissioner had jurisdiction under section 20 of the Act to pass the order which he did.
In the result, the writs were refused.
Against this judgment, the appellant prefers this appeal by special leave.
Two questions have been raised for our determination in this appeal: (1) whether by reason of the partition of the joint family and the reconstitution of the firm under the deed dated 17 10 1944 there was a change in the persons carrying on business within section 8(1) of the Act; and (2) whether the order of the Commissioner dated 15 3 1950 is bad on the ground that there was no mistake apparent from the record, as required by section 20 of the Act.
On the first question, the contention of the appellant is that when Mohanlal entered into partnership with Richpal and Gajadhar on 23 8 1940 as karta of the joint family, the other members of that family, Chhotelal and Bansilal, also became in substance partners of the firm, and that when they were mentioned eo nominee as partners in the deed dated 17 10 1944 the change was more formal than substantial, and that further the fact that there was a re allotment of shares among the partners would not amount to a change in the persons who carried on the business.
We agree that if all the five persons who were mentioned as partners in the deed of 1944 were partners of the old firm, there would be no change in the persons carrying on the business within section 8(1) of the Act by the mere fact of reshuffling of shares among them.
But the real question that has to be decided 149 is whether Chhotelal and Bansilal were partners in the firm, which was constituted on 23 8 1940.
The appellant contends that they were, both according to the Hindu law and even apart from it, under the general law relating to partnerships.
It is not in dispute that Mohanlal was the karta of the joint family, and that he entered into the partnership on 23 8 1940 as such karta.
It is well settled that when the karta of a joint Hindu family enters into a partnership with strangers, the members of the family do not ipso facto become partners in that firm.
They have no right to take part in its management or to sue for its dissolution.
The creditors of the firm would no doubt be entitled to proceed against the joint family assets including the shares of the nonpartner co parceners for realisation of their debts.
But that is because under the Hindu law, the karta has the right when properly carrying on business to pledge the credit of the joint family to the extent of its assets, and not because the junior members become partners in the business.
In short, the liability of the latter arises by reason of their status as copartners and not by reason of any contract of partnership by them.
It would therefore follow that when Mohanlal became a partner of the firm on 23 8 1940, Chhotelal and Bansilal could not be held by reason of that fact alone, to have become partners therein.
It is argued that when that firm was constituted on 23 8 1940 the persons who entered into the contract of partnership were not merely Mohanlal as karta of the joint family but also Chhotelal and Bansilal in their individual capacity, and that therefore they became partners under the ordinary partnership law.
But the registration certificate of the firm while showing "Bhagat Ram Mohanlal, Hindu undivided family" as a partner, makes no mention of either Chotelal or Bansilal as partners.
The contention that they also became in their individual capacity partners appears therefore to be an afterthought, and is opposed to the findings of the learned Judges of the High Court.
This is sufficient, without more, to dispose of this contention.
But even apart from this, 20 150 it is difficult to visualise the situation which the ap pellant contends for, of a Hindu joint family entering into a partnership with strangers through its karta and the junior members of the family also becoming at the same time its partners in their personal capacity.
In Lachhman Das vs COmmissioner of Incometax(1), it was held by the Judicial Committee that the karta of a joint Hindu family could enter into partnership with an individual member of the coparcenary quoad his separate property.
It was also held by the Privy Council in Sundar Singh Majithia vs Commiss ioner of Income tax(2) that there was nothing in the Income tax Act to prohibit the members of a joint Hindu family from dividing some properties, while electing to retain their joint status, and carrying on business as partners in respect of those properties.
treating them as its capital.
But in the present case, the basis of the partnership agreement of 1940 is that the family was joint and that Mohanlal was its karta and that he entered into the partnership as karta on behalf of the joint family.
It is difficult to reconcile this position with that of Chhotelal and Bansilal being also partners in the firm in their individual capacity, which can only be in respect of their separate or divided property.
If members of a coparcenary are to be regarded as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the members can at the same time be both coparceners and partners.
To get over this difficulty, it was suggested that all the three coparceners might be regarded as having entered into the contract of partnership as kartas of the joint family.
But even if that could be done consistently with the principles of Hindu law, the very pleadings of the appellant are against such a supposition being made, affirming as they do that it was only Mohanlal that was the karta, not the others.
(1) [1948]16 I.T.R 35.
(2) 151 The contention, therefore, that Chhotelal and Bansilal should be held to have become partners in the old firm under the agreement dated 23 8 1940 cannot be maintained.
The question whether there was a change in the persons carrying on the business may now be considered independently of the principles of Hindu Law or the general law of Partnership and with special reference to the provisions of the Indian Excess Profits Tax Act.
Section 2(17) of the Act defines a 'person ' as including a joint family.
Applying this definition.
, who were the members of the firm when it was constituted on 23 8 1940? Richpal, Gajadhar and "Bhagat Ram Mohanlal, Hindu undivided family" consisting of three coparceners, Mohanlal, Chhotelal and Bansilal, it being immaterial for the present purpose whether the karta of the family was only Mohanlal, or all the three of them.
Then, the family became divided in 1944, and the result of it was that one of the three persons who were partners in the old firm, "Bhagat Ram Mohanlal" ceased to exist.
On 17 10 1944, the two surviving partners of the old firm, Richpal and Gajadhar, entered into a contract of partnership with Mohanlal, Chhotelal and Bansilal.
The erstwhile joint family of which they were members not being a partner in the new firm, it having ceased to exist by reason of the partition, there was, having regard to the definition in section 2(17) of the Act, a change in the persons who carried on the business.
That was the view taken in Shanmugavel Nadar and Sons V. Commissioner of Income tax(1), and we agree with it.
Whether the question is considered on the principles of Hindu law or on the provisions of the Excess Profits Tax Act, there was a change in the personnel of the firm on 17 10 1944, and the matter falls within section 8(1) of the Act.
(2) The next question for determination is whether the order of the Commissioner dated 153 1950 is not justified by the provisions of section 20 of the Act for the reason that there was no mistake apparent from the record.
The argument in support of this conten (1) [1948]16 I.T.R. 355, 152 tion is that the record in the Excess Profits Tax pro ceedings consisted in the present case of only the order dated 23 12 1946, that the facts on which the proceedings were taken under section 20, namely, the constitution of the firm on 23 8 1940 and the changes effected therein on 17 10 1944 were not recited therein, and that, in consequence, there were no materials on which an order could have been passed under that section.
It is true that the order of the Excess Profits Tax Officer dated 23 12 1946 does not mention these facts, but they appear from the record of the income tax proceedings which included the registration certificates of the firm under section 26 A of the Income tax Act and the returns made by the firm disclosing the names of the partners and their respective shares.
It is argued for the appellant that these records were inadmissible for the purpose of proceedings under section 20 of the Act, because the record referred to and contemplated by that section must be the record of the excess profits tax proceedings, and that the records of the income tax proceedings could not be used under that section.
We are unable to agree with this contention.
Section 22(1) of the Act provides that: "Notwithstanding anything contained in the Indian Income tax Act, 1922, all information contained in any statement or return made or furnished under the provisions of that Act or obtained or collected for the purposes of that Act may be used for the purposes of this Act".
Section 22(2) similarly makes the record of the excess profits tax proceedings admissible in proceedings under the Indian Income tax Act.
The fact is that the proceedings under the two Acts are interdependent.
Assessments under the Excess Profits Tax Act are, subject to the special provisions of that Act, made on the basis of the assessments made under the provisions of the Indian Income tax Act.
The same officers are in chargev of the proceedings under both the enactments.
The order of the Excess Profits Tax Officer dated 23 12 1946 refers in terms to the order dated 28 9 1946 passed in the proceedings for assess 153 ment of income tax on the appellant, and the deficiency of profits is worked out on the basis of the loss of Rs. 15,771 as ascertained therein.
We see no substance in this contention, which must accordingly be rejected.
It was finally contended that the particulars recited in the registration certificate as to who were all partners of the firm were not conclusive, and that the appellant was not estopped from proving that even on 23 8 1940 the real partners were all the five persons mentioned in the deed dated 17 10 1944, and the decision in Shapurji Pellonji vs Commissioner of Income tax(1) was relied on in support of the position.
It is undoubted law that the income tax authorities are not estopped by the fact of registration from going behind the certificate, and deciding who the real partners of the firm are.
But can the assessee whose statement is the basis on which the registration is made and who has possibly been benefited thereby deny its correctness, when the facts mentioned therein turn out to his disadvantage? It is unnecessary to consider this point, in view of our decision that on the facts as pleaded by the appellant, Chhotelal and Bansilal could not be regarded as partners in the old firm.
We may add that this contention does not appear to have been put forward before the Commissioner when notice was issued to the appellant under section 20 of the Act.
If any such contention had been raised, it would have been open to the Commissioner to have taken action under section 19 of the Act.
In the result, the appeal fails, and is dismissed with costs.
| IN-Abs | The firm of Bhagat Ram Mohan Lal Appellant constituted on 23 8 1940 was registered under section 26 A of the Indian Income tax Act, the partners of the firm according to the registration certificate being (1) Bhagat Ram Mohan Lal (Hindu undivided family), (2) Richpal and (3) Gajadhar, their shares being respectively 8 annas, 4 annas and 4 annas.
Mohan Lal was the karta of the aforesaid family, which consisted of himself and his two brothers, Chhotelal and Bansilal.
The firm made profits during the accounting years ending 1943 and 1944 on which it was assessed to excess profits tax respectively of Rs. 10,023/5/ and Rs. 13,005/5/ .
During the year 19441945 it sustained a loss of Rs. 15,771 and adding thereto Rs. 37,800 the standard profits for the business, the Excess Profits Tax Officer determined the deficiency of profits for the year at Rs. 53,571 .
Acting under section 7 of the Excess Profits Tax Act the Excess Profits Tax Officer passed an order on 23 12 1946 whereby after setting off the profits of the firm for the years ending 1943 and 1944 against the deficiency of profits during the year ending 1945, he directed a refund of Rs. 23,028/10/ which had been paid by the appellant as excess profits tax for those years.
At the commencement of the assessment year 1944 1945 there was a partition in the joint family of which Mohan Lal was erstwhile karta, he and his two brothers becoming divided in status.
As a result thereof the appellant firm was reconstituted under an agreement dated 17 10 1944, the partners of the firm being five in number.
There was a reconstitution of the firm with respect to persons 144 and their shares.
According to section 8(1) of the Excess Profits Tax Act the change in the persons is deemed to bring about a discontinuation of the old business and the commencement of a new one and if that section applied no relief could have been granted to the appellant under section 7 of the Act.
The facts as to the reconstitution of the firm having come to the knowledge of the Commissioner of Excess Profits Tax he issued a notice under section 20 of the Excess Profits Tax Act calling upon the appellant why the order of Excess Profits Tax Officer dated 23 12 1946 should not be set aside on the ground of mistake as he had failed to take into consideration the change in the constitution of the firm which took place on 17 10 1944.
After hearing the appellant the Commissioner held by his order dated 15 3 1950 that on the facts disclosed there was a change in the persons and that the award of relief under section 7 of the Act by the Excess Profits Tax Officer was a mistake.
He set aside order only so far as Bhagat Ram Mohan Lal was concerned maintaining it with regard to two others.
On an application for a writ of certiorari and for a writ of prohibition under article 226 of the Constitution the High Court upheld the order of the Commissioner.
On an appeal by Special Leave to the Supreme Court: Held (1) that by reason of the partition of the joint family and the reconstitution of the firm under the deed dated 17 10 1944 there was a change in the persons carrying on business within section 8(1) of the Act.
If all the five persons who were mentioned as partners in the deed of 1944 were partners of the old firm, there would be no change in the persons carrying on the business within section 8(1) of the Act by the mere fact of reshuffling of the shares among them but the real question for determination was whether Chhotelal and Bansilal were partners in the firm constituted on 23 8 1940.
It is not in dispute that Mohanlal was the karta of the joint family, and that he entered into the partnership on 23 8 1940 as such karta.
It is well settled that when the karta of a joint Hindu family enters into a partnership with strangers, the members of the family do not ipso facto become partners in that firm.
They have no right to take part in its management or to sue for its dissolution.
The creditors of the firm would no doubt be entitled to proceed against the joint family assets including the shares of the non partner copareeners for realisation of their debts.
But that is because under the Hindu Law, the karta has the right when properly carrying on business to pledge the credit of the joint family to the extent of its assets, and not because the junior members become partners in the business.
The liability of the junior members arises by reason of their status as coparceners and not by reason of any contract of partnership and it would follow therefore that when Mohanlal became a partner of the firm on 23 8 1940 Chhotelal and Bansilal could not be held by reason of that fact alone to have become partners therein, 145 Accordingly whether the question was to be considered on the principles of Hindu law or on the principles of the Excess Profits Tax Act there was a change in the personnel of the firm on 17 10 1944 and the matter fell within section 8(1) of the Act.
(2) That there was a mistake apparent on the record as required by section 20 of the Act and the Commissioner had jurisdiction to pass the order dated 15 3 1950 which he did.
There was no force in the contention that the record in Excess Profits Tax proceedings consisted in the present case of the only order dated 23 12 1946 and that the facts on which the proceedings were taken under section 20, namely, the constitution of the firm on 23 8 1940 and the changes effected therein on 17 10 1944 were not recited therein and that in consequence there were no materials on which an order could have been passed under that section because though the order of the Excess Profits Tax Officer dated 23 12 1946 does not mention these facts these facts appear from the record of the income tax proceedings which included the, registration certificate of the firm under section 26 A of the Income Tax Act and the returns made by the firm disclosing the names of the partners and their respective shares.
Fur ther the fact is that the proceedings under the two Acts, namely, the Excess Profits Tax Act and the Income Tax Act, are interdependent.
Lachman Das vs Commissioner of Income Tax ([1948] 16 I. T.R. 35), Sundar Singh Majithia vs Commissioner of Income tax ([1942] , Shanmugavel Nadar and Sons vs Commissioner of Income tax ([1948] and Shapurji Pellonji vs Commissioner of Income tax ([1945] , referred to.
|
Appeal No. 717 of 1973.
Appeal by Special Leave from the Judgement and Order dated 27 10 1972 of the Allahabad High Court in Sales Tax Ref.
No. 857/71.
section Markandeya, for the Appellants.
O. P. Verma, for the Respondent.
The Judgment of the Court was delivered by SEN J.
This is an appeal from a judgment of the Allahabad High Court dated October 27, 1972 which was given upon a reference of certain questions of law made to the High Court by the Additional Judge (Revisions), Sales Tax, Meerut in compliance with its directions under sub section
(4) of section 11 of the U.P. Sales Tax Act, 1948 calling for a statement of the case.
The two questions referred were as follows: 1.
Whether there is no material in support of best judgment assessment ? 2.
Whether on the facts and in the circumstances of this case the assessee acted in respect of the estimated purchase turnover of Rs. 3,80,000 as a dealer so as to be liable to purchase tax ? The Commissioner of Sales Tax submitted that the first question should be answered in the negative and the second in the affirmative.
The High Court decided in favour of the assessee and against the Commissioner, holding that the submission of the assessee was right and answered both the questions to the contrary.
From this decision the appellant, the Commissioner of Sales Tax, has appealed.
The reference arose out of assessment for the assessment year 1967 68 of Messrs Bishamber Singh Layaq Ram which carries on business in jaggery, amchur, khandsari etc.
on its own account and as kuccha arhatiya in jaggery, foodgrains etc.
at Shahpur in the district of Muzaffarnagar, and is registered as a dealer under section 8 A of the Act (hereinafter referred to as 'the assessee ').
The material facts may be stated as follows: During the assessment year in question, the Sales Tax Officer, Muzaffarnagar by his order dated December 27, 1968 rejected the account books of the 551 assessee on the basis of some discrepancies found during the four surveys carried out at his shop and made a best judgment assessment under sub section
(3) of section 7 of the Act, determining the taxable turnover of purchases effected by it as a kutcha arhatiya at Rs. 5,30,000 and the tax payable thereon at Rs. 25,450.
On appeal the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar by his order dated August 11, 1969 reduced the taxable turnover of purchases by Rs. 1,50,000 and the tax by Rs. 7,500.
There were two cross revisions by the Commissioner of Sales Tax and by the assessee, both of which were allowed by the Additional Judge (Revisions), Sales Tax, Meerut who by his order dated February 10, 1970 while negativing the plea of the assessee that he was not a dealer, however, felt that on the material on record, the taxable turnover of the assessee could not reasonably be determined at Rs. 3,80,000.
He accordingly set aside the orders of the Assistant Commissioner (Judicial) and of the Sales Tax Officer and directed that there should be a fresh best judgment assessment.
Upon reference, the High Court on question No. 2, as to the liability of the assessee to tax on transactions effected by it as kutcha arhatiya held that the assessee was not a dealer, observing: "If the assessee is a Kutcha Arhatiya then he is not liable to sales tax.
The change in the definition of the word 'dealer ' in 1961 upon which the Judge (Revisions) has relied does not change the situation.
A person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold.
A kutcha arhatiya merely brings together the seller and the purchaser and helps in settling the price and weighing the goods etc.
The fact that he sometimes advances money to cultivators who bring their produce for sale or sometimes pays the entire sale price to the cultivator from his own pocket is not inconsistent with his being a kutcha arhatiya.
" It was rightly contended on behalf of the Commissioner that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under section 7(3).
It is pointed out that the High Court has completely overlooked Explanation to section 2(c) of the Act which was inserted by the U.P. Sales Tax (Amendment) Act, 1959, particularly the words 'through whom the goods are sold or purchased ' appearing therein.
with regard to the applicability of section 7(3), it is urged that the question was not referred.
552 The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer, i.e., a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case.
The facts stated in the agreed statement of the case clearly show that the assessee is not a kutcha arhatiya, in the usual sense of the term, but his business brings into existence the relation of vendor and purchaser.
The nature of the business carried on by the assessee is described thus: "Cultivators bring their produce to the assessee for sale.
The goods are weighed at his shop and then supplied to the pucca arhatiyas or to other persons.
Price of the commodity in full or part is paid by the assessee to the cultivators directly.
The price from the purchasers is readied afterwards.
In any case it is not the responsibility of the cultivators to realise the price from the purchasers.
On the contrary, it is the assessee who is responsible for the payment of the price to the cultivators.
Some times the cultivators are also paid advances and these are adjusted when the price of the produce is paid to the cultivators." (Emphasis supplied) The decision on the question whether the assessee is a dealer must turn on the construction of section 2(c), which insofar as material, reads: "2(c) "dealer" means any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh, whether for commission, remuneration or otherwise, Explanation: A factor, a broker, a commission agent or arhati, a del credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principals, or through whom the goods are sold or purchased shall be deemed to be a dealer for the purposes of this Act.
" There can be no doubt that a pucca arhatiya comes within the substantive part of the definition of 'dealer ' contained in section 2(c) of the Act, but the question still remains whether a kutcha arhatiya is covered by the definition, by reason of the Explanation thereto.
The basic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him.
The person with whom he enters into a transaction on behalf of his constituent is either brought into contact with the constituent or at least the constituent is informed of 553 the fact that the transaction has been entered into on his behalf with a particular person.
But in the case of a pucca arhatiya, the agent makes himself liable upon the contract not only to third parties but also to his constituent.
He does not inform his constituent as to the third party with whom he has entered into a contract on his behalf.
Thus, a pucca arhatiya acts as a principal as regards his constituent and not as a disinterested middleman who brings about two principals together, there being no privity of contract between the constituent and the third party, and may substitute his own goods towards the contract made for the principal and buy the principals goods on his personal account.
On the other hand a kutcha arhatiya usually denotes a person who merely 'brings together the buyer and the seller ' charging his commission, who has no dominion or control over the goods, unlike a pucca arhatiya who deals as a principal in relation to both his constituent and to the third party.
The crucial test is whether the agent has any personal interest of his own when he enters into the transaction or whether that interest is limited to his commission agency charges and certain out of pocket expenses, and in the event of any loss his right to be indemnified by the principal.
This principle was applied in the case of pakki arhat by Sir Lawrence Jenkins C.J. in Bhagwandas Narotmdas vs Kanji Deoji and approved of by the Judicial Committee in Bhagwandas Parasram vs Burjorji Ruttonji Bomanji and by this Court in Shivnarayan Kabra vs State of Madras.
As to the incidents of pakkiarhat, Sir Lawrence Jenkins in Bhagwandas Narotamdas 's case succinctly states the legal position, in his own terse language: "A pakka adatia is not, in the proper sense of the word, an agent or even a del credere agent.
The relation between him and his up country constituent is substantially one of principal and principal." In a commercial sense, a kutcha arhatiya acts as an agent on behalf of his constituent.
The main characteristic of a kutcha arhatiya has been described by the Judicial Committee in Sobhagmal Gianmal vs Mukundchand Balia(4) in these terms: "When a katcha adatia enters into transactions under instructions from and on behalf of his up country constituent with a third party in Bombay, he makes privity of contract between the third party and the constituent, so that each becomes liable 554 to the other, but also he renders himself responsible on the contract to the third party.
" Vivian Bose J. in Kalyanji Kuwarji vs Tirkaram Sheolal(1) puts the matter thus: "The test to my mind is this: does the commission agent when he sells have authority to sell in his own name? Has he authority in his own right to pass a valid title? If he has then he is acting as a principal vis a vis the purchasers and not merely as an agent and therefore from that point or he is a debtor of his erstwhile principal and not merely an agent.
Whether this is so or not must of course depend upon the facts in each particular case.
" It is plain, on an examination of the language as it stood at the material time, from the definition of 'dealer ' in section 2(c) that even a selling or purchasing agent is within that definition.
A person to be a 'dealer ' under that definition must be engaged in the business of buying and selling goods in Uttar Pradesh whether for commission, remuneration or otherwise.
Explanation to section 2(c) brought within the definition of 'dealer ' not only a commission agent, a factor, a del credere agent or any other mercantile agent by whatever name called, and whether of such description or not, but also a broker, an auctioneer as well as an arhatiya.
The use of the words "through whom the goods are sold or purchased" in the Explanation is significant, and they must be given their due meaning.
Thus, the definition of 'dealer ' in section 2(c) is wide enough to include a selling or purchasing agent of whatever name or description.
The term 'arhatiya ' is wide enough to include a kutcha arhatiya.
If the Explanation to section 2(c) of the Act were not there, perhaps it could be said that a kutcha arhatiya is merely an agent who helps cultivators who bring their produce to the market for sale, to find buyers, assist them in weighment and secure to them payment of price, but the assessee here certainly does not answer that description.
That apart, the Explanation clearly brings within the definition of 'dealer ' in section 2(c) a kutcha arhatiya.
It was not suggested at any time that the Explanation was ultra vires the State Legislature being beyond the ambit of Entry 54 of List II of the Seventh Schedule.
The constitutional validity of a similar Explanation to section 2(c) of the Bengal Finance (Sales Tax) Act, 1941 which brought an auctioneer within the purview of the definition of 'dealer ' in that section.
was upheld by this Court in Chowringhee Sales Bureau (P) Ltd. vs C.I.T., West Bengal.(2) The whole object is to tax a transaction of sale in the 555 hands of a person who carries on the business of selling goods and who has the legal or customary authority to sell goods belonging to the principal.
It is evident from the statement of the case that the business carried on by the assessee was more or less similar to that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya.
It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit.
It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold.
Selling of goods was not simultaneous with receiving them.
These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them.
In these circumstances, the High Court should have held the assessee to be a dealer under section 2(c) of the Act, read with the Explanation thereto.
There remains the question whether the High Court was justified in holding that there was no basis for making a best judgment assessment.
The Addl.
Judge (Revisions) had remanded the case for a reassessment on the basis of best judgment, on his finding that there was no material whatever on record to enable him to come to a conclusion one way or the other, on the disputed question of fact, i.e., whether the best judgment assessment of the taxable turnover at Rs. 3,80,000 could be sustained.
Though the question of the applicability of section 7(3) of the Act was not, in terms, referred to the High Court under section 11(4), the Addl.
Judge (Revisions) in stating the case mentioned that the assessee had contended before him that his account books had been wrongly rejected.
The statement of the case sets out the details of the various surveys made and the nature of the deficiencies found.
The High Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under section 7(3).
It has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968.
In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days.
The High Court observes that 'no adverse inference could be drawn on this account because the assessee 's explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written '.
With regard to the second survey carried out on December 13, 1967 it was discovered that there was 556 a loose parcha containing several entries.
One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books.
That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction.
The High Court observes that 'it has not been found that any other entry contained in the loose parcha had not been entered in the account books ', With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer.
The High Court has again accepted the explanation of the assessee saying that 'there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it '.
It observes that 'there is nothing in section 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer '.
As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968.
Thus there were no entries for eight days.
The explanation of the assessee was that it had not entered into any contract during the eight days in question.
The High Court observes that 'as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book '.
We are not inclined to agree with this line of reasoning.
While we refrain from expressing any opinion on the requirements of section 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot be upheld.
In our opinion, the High Court should have declined to go into the question of the applicability of section 7(3) of the Act.
When a question of law was neither raised before the Addl.
Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of his order.
The question as to whether the Sales Tax officer was justified in making a best judgment assessment under section 7(3) of the Act was not referred to the High Court.
It was, therefore, not open to the High Court to go into the question.
It could not allow the new point to be raised for the first time in reference.
Nor was the High Court entitled on a reference under section 11(4) of the Act to set aside the finding of the Addl.
Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion.
It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books 557 should or should not be accepted.
It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain.
For all these reasons, the judgment of the High Court is set aside and that of the Addl.
Judge (Revisions), Sales Tax Meerut remanding the case for a fresh judgment assessment under section 7(3) of the Act is restored.
There shall be no order as to costs.
N.V.K. Appeal allowed.
| IN-Abs | Section 2(c) of the U.P. Sales Tax Act, 1948 defines "dealer" to mean any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh whether for commission, remuneration or otherwise.
By the U.P. Sales Tax (Amendment) Act, 1949 an Explanation was inserted in this section to provide that a factor, a broker, a commission agent or arhatiya, a del credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principles, or through whom the goods are sold or purchased shall be deemed to be a dealer for the purposes of the Act.
The respondent (assessee) who was registered as a dealer under section 8A was carrying on business in jaggery, amchur, khandsari etc.
on its own account and as kutcha arhatiya.
The nature of the business carried on by the assessee was that cultivators brought their produce to the assessee for sale.
The goods were weighed at his shop and then supplied to the pucca arhatiyas or to other persons.
Price of the commodity in full or part was paid by the assessee to the cultivators directly, and the price from the purchaser were realised after wards.
During the assessment year 1967 68 the Sales Tax Officer by his assessment order rejected the account books of the assessee on the basis of some discrepancy found during the four surveys carried out at the shop and made a best judgment assessment under sub section (3) of section 7 of the Act, determining the taxable turnover of purchases effected by the assessee as a kutcha arhatiya at Rs. 5.3 lacs and taxed it.
On appeal the Assistant Commissioner (Judicial), Sales Tax reduced the taxable turnover of purchase by Rs. 1.5 lacs.
Cross revisions by the appellant as well as by the respondent were allowed by the Additional Judge (Revisions), Sales Tax who by his order negatived the plea of the assessee that he was not a dealer but held from the material on record that the taxable turnover of the assessee could not reasonably be determined at Rs. 3.8 lacs.
The orders of the Assistant Commissioner (Judicial) and Sales Tax officer were set aside and a fresh best judgment assessment was directed to be made.
549 The High Court upon reference, as to the liability of the assessee to tax on the transactions effected by it as kutcha arhatiya held that the assessee was not a dealer.
It further held that a person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold, and that a kutcha arhatiya merely brought together the seller and the purchaser and helped in settling the price and weighment of the goods etc.
In the appeal to this Court it was contended on behalf of the appellant, that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the High Court had completely overlooked the Explanation to section 2(c) which was inserted by the U.P. Sales Tax (Amendment) Act, 1959 particularly the words "through whom the goods are sold or purchased", and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under section 7(3).
Allowing the appeal ^ HELD: 1(i) The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer i.e. a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case.
[551 H] (ii) Explanation to section 2(c) brought within the definition of 'dealer ' not only a commission agent, a factor, a del credere agent or any other mercantile agent by whatever name called, and whether of such description or not, but also a broker, an auctioneer as well as an arhatiya.
[554 D] (iii) The definition of 'dealer ' in section 2(c) is wide enough to include selling or purchasing agent of whatever name or description.
The term 'arhatiya ' is wide enough to include kutcha arhatiya.
[554 E] (iv) The basic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him.
A pucca arhatiya acts as a principal as regards his constituent and not as disinterested middleman who brings principals together, there being no privity of contract between the constituent and the third party.
On the other hand a kutcha arhatiya usually denotes a person who merely 'brings together the buyer and seller ' charging his commission, who has no dominion or control over the goods unlike a pucca arhatiya who deals as a principal in relation to both his constituent and to the third party.
In a commercial sense, a kutcha arhatiya acts as an agent on behalf of his constituent.
[552 G 553 B, F] Bhagwandas Parasram vs Burjorji Ruttonji Bomanji, LR (1917 18) 45 IA 29, Shivnarayan Kabra vs State of Madras.
; , Sobhagmal Gianmal vs Mukundchand Balia, L.R. (1926) 53 I.A. 241, Chowringhee Sales Bureau (P) Ltd. vs C.I.T. West Bengal; , , referred to.
2(i) The High Court should have declined to go into the question of the applicability of section 7(3) of the Act.
When a question of law was neither raised before the Addl.
Judge (Revisions) nor considered by him nor did it arise on findings given by him, it will not be a question arising out of his order.
[556 F] (ii) The question as to whether the Sales Tax Officer was justified in making a best judgment assessment under section 7(3) of the Act was not referred to the High Court.
It was, therefore, not open to the High Court to go into the question.
It could not allow the new point to be raised for the first time in reference.
[556 G] 550 (iii) The High Court was also not entitled on a reference under section 11(4) of the Act to set aside the findings of the Addl.
Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion.
It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted.
[556 H]
|
Civil Appeal No. 840 of 1978.
Appeal by Special Leave from the Judgment and order dated 14th December 1977 of the Punjab and Haryana High Court in Civil Revision No 613/74.
Govind Das, Mrs. Urmila Kapoor and Mrs. Shobha Dixit for the Appellant.
M.N. Phadke, N.C. Jain, S.K. Dhingra and S.L. Sethia for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against a judgment of the High Court of Punjab & Haryana dismissing a tenants ' revision petition.
under section 15(5), East Punjab Urban Rent Restriction Act, 1949 arising out of eviction proceedings.
The respondent, as landlord, applied under section 13(2) (ii) (a) of the East Punjab Urban Rent Restriction Act, 1949 for the possession of a shop forming part of the premises No. 6283, Nicholson Road.
Ambala Cantonment occupied by the appellants.
He claimed that the shop had been let out to the first appellant, Gurcharan Singh but that he had without the written consent of the respondent, sublet the shop to his father, Gurdayal Singh and his brothers, Anoop Singh and Jagjit Singh.
The appellants denied that the shop had been sub let and pleaded that they, along with their father constituted a joint Hindu family, and that the joint Hindu family was the tenant of the shop.
The Rent Controller found in favour of the respondent and passed an order of eviction, which was subsequently affirmed by the Appellate Authority.
The appellants applied in revision, and the High Court has, by its judgment and order dated 14th December, 1977 dismissed the revision application.
The first contention of the appellant is that there is no evidence that the shop was sub let, and the finding is misconceived in ' point of law.
493 It is sufficient to point out that the Rent Control Authorities and the High Court have concurrently found that the shop was let out to Gurcharan Singh and not to the joint Hindu family, and that Gurcharan Singh sub let it in 1967 to a partnership firm consisting of his father and brother.
The finding is supported by ample evidence on the record.
The material shows that the shop was let out to Gurcharan Singh alone, and the business carried on by him was later taken over by a partnership consisting of his father and brothers.
He was no longer proprietor of the business, and merely extended his assistance under a power of attorney enabling him to, act for the partnership.
The execution of the power of attorney establishes that he was not a partner.
It appears that Gurcharan Singh individually carried on some other business, but there is no evidence to show that business was lodged in the shop under consideration.
The material before us demonstrates that the shop was occupied exclusively by the partnership firm and that Gurcharan Singh was left with no right to possession therein.
The evidence is incompatible with the case, now set up before us, that the partnership was merely a licensee of Gurcharan Singh.
Learned counsel for the appellants relies on Hira Singh & Ors.
vs Banarsi Dass.
That case.
however, was one of a joint tenancy, and it was held that the mere circumstance that one of the co tenants had ceased living in the premises for some time could not lead to the inference that he had sub let it to the other co tenants.
The evidence Showed that all the co tenants were carrying or business in partnership, although one of them was not disclosed was a partner.
Some reliance was placed on the circumstance that the licence for carrying on the business stood in the name of Gurcharan Singh.
As the evidence plainly shows, the licence was issued to him when he was carrying on the business, and subsequently, although it continued to stand in his name, it was.
used by the partnership firm, and no inquiry was ever made by the licensing authority, when renewing it, to determine whether the original holder of the licence was still carrying on the business.
We are of opinion that the finding of the High Court and the Rent Control authorities that Gurcharan Singh had sub let the shop is unassailable.
Learned counsel for the appellants contends next that the ground sub letting taken under the East Punjab Urban Rent Restriction Act, 1949 is not available to the respondent because on the date when the sub letting took place that Act was not in force in the Ambala Cantonment.
Now, it appears that section 3 of the Cantonments (Extension 494 of Rent Control Laws) Act, 1957 empowered the Central Government to extend, by notification, to any cantonment with such restrictions and modifications as it thought fit, any enactment relating to the t control of rent and regulation of house accommodation which was in force on the date of the notification in the State in which the cantonment was situated.
In exercise of that power, the Central Government issued Notification No. SRO 7.
dated 21st November, 1969 extending the East Punjab Urban Rent Restriction Act, 1949 to cantonments in the States of Haryana & Punjab.
Consequently, with effect from 21st November.
1969 the East Punjab Urban Rent Restriction Act became a law operating in the cantonment.
Section 13 (2) (ii) (a) of the Act provides for an order of eviction if the Controller is satisfied "that the tenant has, after commencement of this Act, without the written consent of the landlord (a) transferred his right under the lease or sub let the entire building or rented land or any portion thereof.
" It is clear that the tenant falls within the mischief of this sub clause only if he has effected the transfer or sub letting after the commencement of the Act.
The Act commenced to operate in the Ambala Cantonment on 21st November, 1969.
In regard to that territory, it was not law before that date, but only on and from that date.
It is clear that the sub letting in the present case having been effected in 1967, was not made after the commencement of the Act.
Learned counsel for the respondent urges that section 13(2)(ii)(a) of the Act uses the words "has sub let", and submits that sub letting is a continuous process and that even though in the present case it may be said to have commenced before the Act came into force it continued in operation after the Act was brought into force.
Now, when section 13(2)(ii)(a) speaks of a tenant who "has sub let", it refers to a tenant who has entered into a transaction of sub letting.
And the transaction of sub letting is referable to a single point of time.
It is the moment when the act effecting the sub letting is completed.
That transaction is located at a fixed point.
What happens then is that a flowing stream of rights and obligations issues from the sub letting.
Those rights continue as long as the sub lease subsists.
but they have their source in the definitive transaction of sub letting located in a single fixed point of time.
We may add that in the context of section 13(2)(ii)(a) of the Act.
the words "has sub let" imply that the sub letting must subsist on the date when the Act comes into force.
The reason is apparent from the object of the Act, which is to protect the personal occupation of the tenant.
The protection is not extended to a tenant who has abandoned occupation of the premises and has passed possession to another, even though by way of a sub tenancy.
495 The protection against eviction is not available for permitting a tenant to make a profit out of his tenancy rights by sub letting the premises.
Therefore, the words "has sub let" unqualified by any reference to the commencement of the Act.
refer to a transaction of sub letting entered into before or after the commencement of the Act, and in the case where sub letting has been effected before the commencement of the Act the sub lease must subsist, and the rights under it continue to flow, on the date of the commencement of the Act.
In the present case, however, section 13(2)(ii)(a) of the Act confines its scope to sub leases effected after the commencement of the Act, that is to say, transactions of sub letting effected after the date when the Act came into force.
For that reason, a sub letting effected before the commencement of the Act cannot be brought within the mischief of section 13(2)(ii)(a) even though it continues to subsist on or after the commencement of the Act.
In Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji & Anr.
on which learned counsel for the respondent relies, the relevant provision did not include the words "after the commencement of this Act".
and, therefore, took within its scope a sub letting transacted before the coming into force of the relevant Act.
In our opinion, the respondent cannot avail of section 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act on the basis that it was brought into operation in the Ambala Cantonment by the Notification of 1969.
We find, however, that the Cantonment (Extension of Rent Control Laws) Act, 1957 was amended by Act No. XXII of 1972.
Upon amendment, section 1(2) of the principal Act declared that the principal Act would be deemed to have come into force on 26th January, 1950.
The words "on the date of the Notification" were omitted in section 3(1) of the principal Act, and were deemed always to have been omitted, so that under section 3 the Central Government must be deemed to have been empowered always to extend to a cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State even as it stood before the date of the Notification.
This amendment was made in order to accord with the further amendment made by inserting sub section (3) in section 3 of the principal Act, which provided that where an enactment in force in any State relating to the control of rent and regulations of house accommodation was extended to a cantonment from a date earlier than the date of such extension was made, such enactment, as in force on such earlier date, would apply to such cantonment.
Section 3(2) was added in the principal Act, and it provided: 496 "2.
The extension of any enactment under sub section
(1) may be made from such earlier or future date as the Central Government may think fit: Provided that no such extension shall be made from a date earlier than (a) the commencement of such enactment, or (b) the establishment of the cantonment, or (c) the commencement of this Act, whichever is later.
" Subject to the proviso, the Central Government now enjoyed power to extend an enactment from a date earlier than the date of the notification or from a future date.
Subsequently, the Central Government issued Notification No. SRO 55, dated 24th January, 1974 superseding the earlier Notification No. SRO 7, dated 21st November, 1969 and extending the East Punjab Urban Rent Restriction Act afresh to cantonments in the States of Haryana and Punjab.
Section 1(3) of that Act was modified to read that, except for section 19, it would be deemed to have come into force on 26th January.
The result is that the East Punjab Urban Rent Restriction Act will be deemed to have come into force in the Ambala Cantonment on 26th January, 1950.
And if that be so, the sub letting effected in 1967 must plainly be regarded as having been made after the commencement of that Act.
Two points are raised on behalf of the appellants against that conclusion.
The first is that the power under section 3 of the having been exercised once, that is to say, by the Notification dated 21st November, 1969, the power of extension stood exhausted and could not be availed of again, and therefore the Notification dated 24th January, 1974 was without statutory sanction and invalid.
We are referred to Lachmi Narain etc., etc.
vs Union of India & Ors.
That was a case where this Court held that a Notification under section 2 Part States (Laws) Act, 1950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales Tax) Act, 1941 to the State of Delhi, the power given by section 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh Notification modifying the terms in which the Bengal Act was extended.
The case is clearly distinguishable.
The power under which the Notification dated 24th January, 1974 has been issued is a separate and distinct power from that under which the Notification dated 21st November, 1969 was made.
The power now exercised passed into the , 497 1957 when it was amended in 1972.
In its nature and quality it is not identifiable with the power vested under the unamended Act.
A power conferred by statute is distinguished by the character and content of its essential components.
If one or more material components characterising the power cannot be identified with the material components of another, they are two different and distinct powers.
Although broadly the power envisaged in section 3 of the amended is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two.
The power under the unamended Act was a limited power.
It could operate prospectively only.
There was no choice in the matter.
After amendment, the Act provided for a power which could be exercised retrospectively.
The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made.
It was a power whose reach and cover extended far beyond what the power under the unamended Act could achieve.
We are of the view that in issuing the Notification dated 24th January, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from 26th January, 1950, the Central Government exercised a power not available to it when it issued the Notification dated 21st November, 1969.
The contention that the issue of the Notification of 24th January, 1974 amounted to a further exercise of power conferred by section 3 of the , under which the earlier Notification was issued is without force and must be rejected.
The second point raised is that in clause (c) of the proviso to section 3(2) of the , which speaks of "the commencement of this Act", the words "this Act" refer to the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, which commenced to operate from 2nd June, 1972.
The argument is founded in fallacy.
The words "this Act" refer to the principal Act in which sub section 3(2) is inserted by virtue of the amendment, and that Act, by virtue of section 2(2) as amended, must be deemed to have come into force on 26th January, 1950.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.
| IN-Abs | Section 3 of the empowers the Central Government to extend by notification to any cantonment any enactment relating to the control of rent and regulation of house accommodation which was in force on the date of notification in the State in which the cantonment was situated.
In exercise of this power the Central Government by a notification dated November 21, 1969 extended the East Punjab Urban Rent Restriction Act, 1949 to the cantonments in the States of Haryana and Punjab.
By virtue of section 3(2) which was added in the 1957 Act in 1972, the Central Government enjoyed power to extend an enactment from a date earlier than the date of notification or from a future date.
In January, 1974 the Central Government issued a notification superseding tho earlier notification dated November 21, 1969 and extended afresh the 1949 Act to cantonments in Haryana and Punjab.
Section 13(2)(ii)(a) of the 1949 Act provides for an order of eviction if the Controller is satisfied that the tenant has, after the commencement of this Act without the written consent of the landlord has sublet the entire building or a portion thereof.
The respondent landlord in the instant case applied for possession of his premises in Ambala Cantonment under the occupation of the appellant tenant on the ground that without his written consent the tenant had sub let the shop.
The appellant claimed that it was the joint Hindu family of which he was a member that was the tenant and therefore there was no question of the premises being sub let by him to the joint family.
The Rent Controller ordered eviction.
His order was affirmed by the appellate authority.
The High Court dismissed the tenant 's revision application.
Before this Court it was contended that (1) there was no evidence that the shop was sub let; (2) since the 1949 Act was not in force in the Ambala Cantonment in 1967 when the sub letting was alleged to have taken place, the landlord could not avail of the provisions of that Act and (3) the notification issued in 1974 was without statutory sanction and was invalid because once the Central Government had exercised the power in 1969 that power stood exhausted and the Government could not invoke it again in 1974.
491 Dismissing the appeal, ^ HELD: 1 The finding of the High Court and the Rent Controller that the tenant had sub let the shop is unassailable.
The shop, to begin with, was let out to the appellant alone and not to the joint Hindu family.
The business carried on by him was later taken over by a partnership consisting of the father and brothers and he was no longer the proprietor of the business.
[493 G & B] 2(a) The 1949 Act became law operating in the Ambala Cantonment with affect from November 21, 1969 when the Central Government extended that Act to the cantonments in Haryana and Punjab.
The sub letting having taken place in 1967 when the 1949 Act was not in force the landlord could not avail of the provisions of that Act.
[494B D] (b) In the context of section 13(2)(ii)(a) of the 1949 Act the words "has sub let" imply that the sub letting must subsist on the date when the Act came into force.
Tho words "has sub let", if they are unqualified by any reference to the commencement of the Act, refer to a transaction of sub letting entered into before or after commencement of tho Act and in a case where sub letting has been effected before the commencement of the Act the sub lease must subsist, and the rights under it continue to now, on the date of the commencement of the Act.
In the present case, section 13(2)(ii)(a) confines its scope to sub leases effected after the commencement of the Act, that is to say, transactions of sub letting effected after the date when the Act came into force.
For that reason, a sub letting effected before the commencement of the Act cannot be brought within the mischief of the section even though it continues to subsist on or after the commencement of the Act.
[494H; 495A B] Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji & Anr.
; held inapplicable.
3(a) By virtue of tho amendments made to tho 1957 Act in 1972 the 1949 Act will be deemed to have come into force in the Ambala cantonment on January 26, 1950.
Therefore, the sub letting effected in 1967 must plainly be regarded as having been made after the commencement of that Act.
[496D E] (b) In issuing the notification dated January 24, 1974 and thereby extending the 1949 Act to the Ambala Cantonment retrospectively with effect from January 26, 1950 tho Central Government exercised a power not available to it when it issued tho earlier notification of November 21, 1969.
The contention that the notification of January, 1974 amounted to a further exercise of the same power conferred by section 3 of the 1957 Act is without force.
[497 D E] The power under which the notification of January, 1974 had been issued is a separate and distinct power from that under which the earlier notification was made.
The power now exercised passed into tho 1957 Act when it was amended in 1972.
In its nature and quality it is not identifiable with the power vested under the unamended Act.
A power conferred by statute is distinguished by the character and content of its essential components.
If one or more material components characterising the power cannot be identified with the material components of another, they are two different and distinct powers.
The power under the unamended Act was a limited Dower 492 which could operate prospectively only while the power after amendment was retrospective.
It was a power whose reach and cover extended far beyond what the power under the unamended Act could achieve.
[497 A C] (c) The words "this Act" occurring in the commencement of this Act" in clause (c) of the proviso to section 3(2) of the 1957 Act refer to the principal Act in which sub section (2) was inserted in section 3 and not to the Amendment Act of 1972.
By virtue of section 2(2) as amended it is the principal Act which must be deemed to have come into force on January 26, 1950 [497 G]
|
ivil Appeal Nos.
143 147 of 1970.
From the Judgment and Order dated 17 2 1967 of the Calcutta High Court in Appeal from Original Order Nos.
123 127 of 1966.
D. N. Mukherjee and G. section Chatterjee for the Appellants.
section Balakrishnan and M. K. D. Namboodry for the Respondent.
B. Sen and D. N. Mukherjee for the Intervener.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Civil Appeals Nos.
143 to 147 of 1970, all five of which have been filed by certificates granted under article 133(1)(a) of the Constitution by the High Court of Calcutta and are directed against its common judgment dated the 17th February, 1967 accepting five Letters Patent Appeals and, in reversal of the judgment of a learned Single Judge, issuing a writ of mandamus directing the Land Acquisition Collector, Burdwan and the State of West Bengal to cancel or withdraw a notification dated November 3, 1961 and another containing a declaration dated June 20, 1963 issued under sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as the Act) respectively.
575 2.
The facts leading to the litigation covered by the appeals before us may be briefly stated.
On February 12, 1960 a notification (later in this judgment called the first notification) was issued by the Government of West Bengal under section 4 of the Act stating that a piece of land delineated in the plan available in the Office of the Special Land Acquisition Officer, Burdwan, as well as in that of the Director of M/s Sen Raleigh Industries India Ltd. (hereinafter referred to as the Company) at Kanyapur in District Burdwan was likely to be needed for a public purpose (not being a purpose of the Union) namely, for expansion of the factory of the Company and "for construction of quarters for its workers and staff and for providing other amenities directly connected therewith, such as school, play grounds, hospitals, markets, police out posts, etc., in the villages of Sarakdih, Nadiha, Garui, Hatgaruy and Panchgachhia, jurisdiction lists Nos. 1, 2, 3, 42/3 and 34 respectively, Police Stations Asansol and Barabani, Pargana Shergarh, District Burdwan. " at the expense of the Company.
An area totalling 17.20 acres and belonging to the respondents was included in the land covered by the notification.
The respondents preferred objections to the proposed acquisition under section 5A of the Act to the effect that the land was not acquired for any public purpose, that the real purpose was to benefit the Company and that the first notification was a fraudulent exercise of the power conferred by the Act on the State Government.
A fresh notification (second notification for short) under section 4 of the Act was issued on November 3, 1961 in respect of land measuring 146.90 acres which was the same land as was covered by the first notification, except for a small area.
The second notification stated that the land was likely "to be needed for a public purpose, not being a purpose of the Union, namely, for industrial development at Asansol in the villages of Sarakdih, Nadiha, Garui, Hatgaruy and Panchgachhia, jurisdiction list Nos. 1, 2, 3, 78 and 34 respectively, Police Stations Asansol and Barabani, Pargana Shergarh, District Burdwan. at public expense." The area of 17.20 acres mentioned above was included in the land covered by the second notification also and the respondents filed objections under section 5A of the Act over again contending that although the ostensible purpose of the acquisition was a public purpose, the land was really sought to be acquired for a private purpose, i.e., for the benefit of the Company.
The first notification was cancelled by an order dated the 26th April 1962 and, on the 20th June, 1963, the impugned notification 576 containing the declaration under section 6 of the Act (the third notification for brevity) was made.
About three months later the respondents were served with notices under section 9 of the Act informing them that the State Government was taking steps to secure possession of the acquired lands and that they could submit their claims for compensation.
Further representations were made by the respondents in an effort to have the acquisition proceedings dropped but without success and it was then that each one of them filed a petition under Article 226 of the Constitution asking for the issuance of a writ which was ultimately granted to them by the impugned judgment.
The grounds of challenge taken in all the petitions were identical and were to the following effect: (a) Full particulars of the public purpose for which the land was sought to be acquired were not stated in the second and third notifications.
(b) Both those notifications were issued in colourable or malafide exercise of the power conferred by the Act.
Before the learned Single Judge ground (b) was not pressed at the hearing.
In relation to ground (a) he held that the industrial development of a particular area was in itself a public purpose and no further details of such purpose need be given in the notifications issued under the Act.
Reliance in this connection was placed on Barkya Thakur vs State of Bombay(1).
It was further observed by the learned Single Judge that the proceedings under section 5A of the Act in relation to the impugned notifications had not been completed, that it would be open to the respondents might possibly have another cause of action in case the supply of information was refused and that the petitions under Article 226 of the Constitution were, therefore, pre mature.
All the five petitions were in the result dismissed by the learned Single Judge.
In the Letters Patent Appeals decided by the impugned order the argument advanced on behalf of the respondents before us that the purpose of the acquisition as stated in the impugned notifications suffered from vagueness and that they had in consequence been deprived of the right to make effective objections under section 5A of the Act was held to be untenable.
The Division Bench noticed that the learned Single Judge had erred in assuming that the objections filed by the respondents under the section last mentioned had not been decided by the time of his judgment.
The ground that the real purpose of the proposed acquisition was not a public purpose at all but 577 was to benefit the Company and that the impugned notifications were, therefore, issued in colourable exercise of the powers conferred on the State Government by the Act was strongly put forward before the Division Bench and was considered by it at length.
Relying upon Somawanti vs State of Punjab(1), it held that although a declaration made under section 6 of the Act was final and conclusive not only in regard to the need for acquisition but also in regard to the purpose being a public purpose if it was so stated therein, it was open to a person whose land was acquired to challenge it on the ground of colourable exercise of power.
The Division Bench referred to the pleadings of the parties and took note of the fact that although the respondents had clearly taken up the position that the real purpose of the acquisition was not a public purpose but was to benefit the Company, the Land Acquisition Collector had not in his affidavit taken any specific stand on the point but had only made an evasive denial of the plea put forward by the respondents and that while it was open to the State Government to produce documentary evidence showing that the purpose for which the land was acquired was a public purpose and not merely to benefit the Company it had failed to adopt that course.
Refusing to hold, however, that there had been a colourable exercise of power on the part of the State Government the Division Bench held that the presumption that if such evidence had been produced it would be unfavourable to the State Government was available to the respondents in the present case.
In this connection it further observed: "After all, when the proposed acquisition is impugned as acquisition in colourable exercise of power and there is a specific allegation of the real purpose of the acquisition, it is for the respondents to disclose, except for good reasons, the relevant material or information, to enable the Court to pronounce on the matter and not to maintain a meaningful silence or indulge in equivocations and double standards, rely on the doctrine of onus of proof and defect the course of justice.
For the Court to permit this to be done with success, will be to stultify itself, abdicate its functions and abjure its duties.
" and on this finding accepted all the five Letters Patent Appeals.
After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established.
Not only had their attention been drawn to the dictum in Somawanti 's case (supra) but they 578 had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power.
It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established.
It further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents.
While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, section K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power.
He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in that behalf was on them.
In this situation we do not see how the respondents could be given any relief whatsoever.
The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power.
On the other hand.
if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word.
On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing but dismissal.
Learned counsel for the respondents urged that they were really entitled to a finding of malafides on the part of the State Government but we find ourselves wholly unable to agree with him.
The burden, as he concedes, was squarely on the respondents to prove colourable exercise of power.
In the face of the conclusive presumption which the Court has to raise under sub section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true.
the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State.
If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provi 579 sion under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated.
We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on the respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged.
Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area.
On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution.
That averment reads: "That the Asansol Sub Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz.
The Indian Iron & Steel Co., Indian Aluminium Corporation and several collieries, etc., etc.
It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries." This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise of power.
Mr. Balakrishnan, learned counsel for the respondents raised a preliminary point to the effect that the second notification was void inasmuch as it had been issued while the first notification was still in force.
We do not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High Court.
In the result all the five appeals succeed and are accepted.
The impugned judgment is set aside and the petitions made by the respondents to the High Court are dismissed.
There will, however, be no order as to costs in any of the appeals.
P.B.R. Appeals allowed.
| IN-Abs | The State Government issued a notification under Section 4 of the Land Acquisition Act stating that the land referred to therein was needed for a public purpose, namely, for expansion of the factory of a Company at the expense of the company.
On the respondents ' objections that the purported purpose was not a public purpose in that the land was being acquired for the benefit of a company, the State Government issued another notification in respect of the same land as also some more land stating that the land was needed for industrial development at public expense.
Objections were again raised by the land owners that though ostensibly the purpose was a public purpose in truth it was a private purpose, namely, for the benefit of a company.
In cancellation of the first notification the Government issued another notification under section 6.
Dismissing the respondents ' writ petitions under Article 226 a single Judge of the High Court held that the industrial development of a particular area was in itself a public purpose and no further details need be given in the notifications.
On appeal, a Division Bench of the High Court held that although a declaration under section 6 was final and conclusive as to the need for acquisition and as to the purpose being a public purpose, the aggrieved party could challenge a declaration only on the ground of mala fides and colourable exercise of power and that in the instant case no such allegation had been made out.
The appeals were, however, allowed on the ground that the State Government failed to produce evidence that the land was being acquired for a public purpose and not for the benefit of a company.
Allowing the appeals.
^ HELD: The High Court erred in accepting the appeals in view of its finding that mala fides or colourable exercise of power on the part of the State Government had not been established.
It is well settled law that a declaration under section 6 of the Act shall be conclusive evidence that the land is needed for a public purpose, the only exception to this being that the declaration was issued mala fide or in colourable exercise of power.
The third notification 574 in this case had to be taken at its face value in so far as the purpose was concerned.
[577B; 578B] 2.
The burden of proving mala fides or colourable exercise of power is on the party claiming the benefit of the exception, namely the respondents.
This burden could not be held to have been discharged by a mere allegation in that behalf.
[578H] 3.
If the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired is accepted the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated.
It cannot, therefore, be held merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on the respondents) to prove mala fides or colourable exercise of power on the part of the State Government has been discharged.
[578 H, 579 A B] 4.
The respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was in correct for the reason that the acquired land was not suitable for any industry or that no industrial activity, except that by a company, had been undertaken in the neighbourhood of the acquired area.
There is a clear averment to the contrary by the State which was not controverted by the respondents and that cuts at the root of their plea of mala fides or colourable exercise of power.
[579 B C; E]
|
ition No. 4659 of 1979 (Under Article 32 of the Constitution.) G. section Mann for the Petitioner.
Har Dev Singh for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The petitioner applies for relief under Article 32 of the Constitution against the orders of the High Court of Punjab and Haryana withdrawing judicial work assigned to him and thereafter prematurely retiring him from service.
The petitioner, after holding a number of minor posts in the Punjab Government, was appointed to the Punjab Civil Service (Executive Branch) and subsequently in April, 1965 migrated to the Punjab Civil Service (Judicial Branch).
He remained a Judicial officer thereafter.
The petitioner claims that he was entitled to promotion to a Selection Grade post in the Punjab Civil Service (Judicial Branch) and subsequently to a post in the Punjab Superior Judicial Service.
The claim was based in both cases on the footing that a post had been reserved in the two services for a member of the Scheduled Castes.
It was also asserted that the petitioner was entitled to the posts even 509 without reference to such reservation.
The petitioner 's case is that his service record was uniformly good, but as the High Court was actuated by mala fides it refused him promotion.
He cites some instances to support the allegation of mala fides, including the circumstance that having been appointed to the post of Senior Subordinate Judge he was "reverted" as Subordinate Judge.
On 4th November, 1978 the High Court ordered withdrawal of all judicial work from the petitioner and on 8th November, 1978 a Judicial officer was posted in his place.
The petitioner then filed the present writ petition for the quashing of the orders dated 4th November, 1978 and 8th November, 1978, for his reappointment as Senior Subordinate Judge and, thereafter, his promotion to the Selection Grade post of the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966 and his promotion to the Punjab Superior Judicial Service with effect from 1st November, 1967.
He also claimed an injunction against his premature retirement from service.
This Court entertained the writ petition but declined to grant interim relief.
On 29th December.
1978 the Punjab Government, accepting the recommendation of the High Court, sanctioned the premature retirement of the petitioner from the Punjab Civil Service (Judicial Branch) with effect from 30th December, 1978 on which date the petitioner completed twenty five years qualifying service for the purposes of the Punjab Civil Service (Premature Retirement) Rules, 1965.
In regard to the petitioner 's claim for promotion to the Selection Grade post in the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966, and to a post in the Punjab Superior Judicial Service with effect from 1st May, 1967 on the basis that a post had been reserved in each of the services for a member of the Scheduled Castes, it seems to us that the claim is grossly belated.
The writ petition was filed in this Court in 1978, about eleven years after the dates from which the promotions are claimed.
There is no valid explanation for the delay.
That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay.
Relief must be refused on that ground.
It is not necessary, in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the Scheduled Castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to that service.
The petitioner has also claimed that even without the advantage of reservation he is entitled to promotion to a Selection Grade post in the Punjab Civil Service (Judicial Branch) and to a post in the Punjab 510 Superior Judicial Service, and that the High Court should have promoted him accordingly.
The position taken in reply by the High Court is that the character and quality of the petitioner 's work and conduct, as evidenced by confidential reports pertaining to him, did not justify his promotion having regard to the guidelines laid down by the High Court.
We have personally examined the records in respect of the petitioner, and we are unable to say that the view taken by the High Court is unreasonable or arbitrary.
We may now examine the contention of the petitioner that the order of premature retirement is invalid.
He has assailed the application of the Punjab Civil Service (Premature Retirement) Rules, 1975.
He urges that as a Judicial officer in the Punjab Civil Service (Judicial Branch) he is not governed by these rules.
It is true that originally rule 7 of those Rules provided that they would not apply to persons belonging to any judicial service of the State.
But by notification dated 18th August, 1975, * * * in exercise of the powers under Article 234 of the Constitution besides other provisions, Rule 7 was substituted by another rule which did not exempt members of the judicial service from the operation of the Premature Retirement Rules.
The Premature Retirement Rules were finalised after consultation with the High Court and, therefore, must be regarded as complying with Article 234 of the Constitution.
There is nothing in the Punjab Civil Service (Judicial Branch) Rules which excludes the operation of the Retirement Rules.
We are therefore, not satisfied that the Premature Retirement Rules cannot be applied to the case of the petitioner.
It is urged by the petitioner that the High Court, when it applied the Premature Retirement Rules, did not consider the case of the petitioner on its facts.
We have, however, the affidavit of the Registrar of the High Court which states that the case of the petitioner was considered by the High Court on 26th October, 1978, and having regard to the policy laid down by the High Court it was decided to recommend to the Government that the petitioner should be retired from service in the public interest with effect from 30th December, 1978, the date on which he completed twenty five years of qualifying service.
At the same time it was decided as a matter of policy by the High Court that all the work pending in the court of a Judicial officer, in respect of whom a recommendation for premature retirement had been made to the Government, should be withdrawn immediately pending a decision by the Government on such recommendation.
It was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner was made.
511 It is next contended by the petitioner that the expression "public interest" in the Premature Retirement Rules is vague and the rule is for that reason ultra vires.
In our opinion, the expression in the context of premature retirement has a well settled meaning.
It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs.
No stigma or implication of misbehaviour is intended, and punishment is not the objective.
It appears to us to be beyond dispute that the decision of the High Court to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression "public interest".
The petitioner also asserted that Judicial officers whose record of service was inferior or equivalent to that of the petitioner have not been prematurely retired, and have been retained in service.
The High Court, however, has stated that no such Subordinate Judge has been retained in service.
We see no reason why the High Court should not be believed.
Another point raised by the petitioner is that Article 311 of the Constitution has been violated by the Premature Retirement Rules.
We think that the concept of premature retirement which has found expression in the Rules does not fall within the scope of Article 311.
As we have observed, no element of punishment is involved in premature retirement and it is not possible to say that Article 311 is attracted.
The petitioner has justified the filing of this writ petition under Article 32 of the Constitution on the plea that his fundamental rights under Articles 14, 16, 17 and 46 are violated.
We find no substance at all in that plea.
The petitioner alleges mala fides on the part of the High Court.
It is a reckless allegation, and impossible to countenance.
There is nothing whatever to indicate that the High Court, as a body, was motivated by mala fides against the petitioner.
The instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case.
The High Court has offered a perfectly valid explanation in respect of each instance.
The petitioner points out that the High Court has refused to permit encashment of unutilised earned leave.
On 512 the material before us, we are not satisfied that a case of mala fides has been made out.
These are the only points raised by the petitioner which deserve consideration.
There is no force in them.
The petition fails and is dismissed, but in the circumstances there is no order as to costs.
V.D.K. Petition dismissed.
| IN-Abs | The petitioner after holding a number of minor posts in the Punjab Government, was appointed to the Punjab Civil Service (Executive Branch) and subsequently in April 1965 to the Punjab Civil Service (Judicial Branch).
From the post of Senior Subordinate Judge he was reverted as Subordinate Judge.
Later, on 4th November, 1978, the High Court ordered withdrawal of all judicial work from the petitioner and on 8th November, 1978 a Judicial officer was posted in his place.
Subsequently he was prematurely retired with effect from 30th December, 1978 on which date he completed 25 years qualifying service for the purposes of Punjab Civil Service (Premature Retirement) Rules, 1975.
The petitioner then filed a writ petition under Article 32 of the Constitution in the Supreme Court for the quashing of the orders dated 4th November, 1978 and 8th November, 1978, for his reappointment as Senior Subordinate Judge and, thereafter, his promotion to the Selection Grade post of the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966 and his promotion to the Punjab Superior Judicial Service with effect from 1st November, 1967.
He also claimed an injunction against his premature retirement from service, which relief was refused.
Dismissing the petition, the Court. ^ HELD: (1) Inordinate delay without valid explanation therefor to the claim for promotion itself is a valid ground for refusal of relief to a petitioner.
Successive representations made by the petitioner during the period can hardly justify the delay.
[509F] (2) The High Court was justified, as borne out by the records, not promoting the petitioner to a post in the Punjab Superior Judicial Service.
The view of the High Court was neither unreasonable nor arbitrary.
[510A B] (3) The Punjab Civil Service (Premature Retirement) Rules, 1975 are applicable to judicial officers as well.
These rules were finalised after consultation with the High Court and therefore, must be regarded as complying with Article 234 of the Constitution.
Further, there is nothing in the Punjab Civil Service (Judicial Branch) which excludes the operation of the Retirement Rules.
[510 E] 508 (4) As a policy decision was taken by the High Court that all the work pending in the court of the Judicial officers, in respect of whom a recommendation for premature retirement had been made to the Governor, should be withdrawn immediately pending a decision by the Government on such recommendation, it cannot be said that the withdrawal of judicial powers in the case of the petitioner was wrong.
Even his premature retirement had been properly recommended as a policy matter under the Premature Retirement Rules.
[510G H] (5) The expression "public interest" in the context of premature retirement has a well settled meaning.
It refers to cases where the interest of public administration requires the retirement of a Government servant, who with the passage of years, has prematurely ceased to possess the standard of efficiency, competence and utility called for by the Government service to which he belongs.
No stigma or implication of misbehavior is intended and punishment is not the objective.
[511A B] (6) There is no discrimination or violation of Articles 14, 16, 17 and 46 of the Constitution in view of the fact, as borne out by the records, that no other judicial officer whose record of service was inferior or equivalent to that of the petitioner had not been prematurely retired.
[511 F, D] (7) The concept of premature retirement which has found expression in the Punjab Civil Service (Premature Retirement) Rules, 1975, does not fall within the scope of Article 311.
No element of punishment is involved in premature retirement and Article 311 therefore is not attracted.
[511 E]
|
Civil Appeal No. 433 of 1977.
Appeal by Special Leave from the Judgment and order dated 13th August 1975 of the Allahabad High Court in Second Appeal No. 582/71.
A. P. section Chauhan, Guj Raj Singh Chauhan and T. section Arora for the Appellant.
Indra Makwana for Respondent No. 1.
The Judgment of the Court was delivered by DESAI, J.
How technical plea of want of jurisdiction has pushed a petty employee from pillar to post since April 1964 and pilloried him with cost presumably unbearable by him, is shockingly demonstrated in this case.
First respondent joined service as a petty employee in Cane Development Department of the U.P. State Government somewhere in 1949.
On the formation of the U.P. Co operative Cane Union Federation Ltd. (hereinafter referred to as 'the first appellant '), services of the first respondent stood transferred and were put at the disposal of the appellant and he was styled as Supervisor.
At the relevant time he was rendering service under the second appellant, District Co operative Sugarcane Development Society Ltd. (now designated as Zila Sahkari Ganna Vikas Samiti Ltd.,) Budayun, a federating unit of the first appellant and was incharge of manure godown.
He was suspended from service with effect from October 18, 1958.
A prosecution was launched against him for embezzlement of funds of the second appellant in that he failed to account for 293 1/2 bags of ammonium sulphate entrusted to him as keeper of manure godown.
The case ultimately resulted in the acquittal of the first respondent by the High Court.
Disciplinary proceedings were commenced against him on the same charge and ultimately he was dismissed from service on April 4, 1964.
First respondent filed a suit being O.S. No. 30/64 in the Court of Civil Judge, Budayun, inter alia, for a declaration that the order dismissing him from service was invalid and void and for a further declaration that he continued to be in service and for arrears of pay till the date of the suit.
In the written statement filed on behalf of defendants (present appellants) number of contentions were raised but 561 only one may be noticed for the present appeal.
The contention was that the dispute involved in the suit was between an employee of a Co operative Cane Growers ' Society and the Society and, therefore, civil court had no jurisdiction to entertain the suit but the plaintiff must approach the Registrar of Co operative Societies for reference of dispute to arbitration.
The trial Court decreed the suit as per judgment dated May 24, 1967, and granted the declaration prayed for.
The appellants preferred an appeal being Civil Appeal No. 9 of 1967 to the Court of District Judge, Budayun, who allowed the appeal holding that the Civil Court had no jurisdiction to entertain the suit inasmuch as the dispute was between an officer of a Co operative Society and the Society and the dispute was touching the business of the Society and, therefore, rule 115 of the Co operative Societies Rules enacted by the U.P. Government in exercise of the rule making power conferred by section 43 of the (hereinafter referred to as 'the 1912 Act ') in its application to the U.P. State would be attracted and the dispute will have to be resolved by arbitration by the Registrar.
In accordance with this finding the appeal was allowed and the suit was dismissed.
First respondent preferred Second Appeal No. 582/71 to the High Court of Judicature at Allahabad.
The learned single Judge allowed the appeal holding that as the first appellant is governed by U.P. Sugarcane (Regulation of Supply and Purchases) Act, 1953 ( '1953 Act ' for short), it being both a Co operative Society and a Cane Growers ' Co operative Society and in case of an officer or servant of such cane growers ' cooperative society any dispute between its officers and servants and such society would be governed by rules 54 and 55 framed under 1953 Act which provide a complete machinery for resolution of disputes and rule 108 does not encompass dispute arising out of a disciplinary proceeding between such society and its officers and servants and, therefore, in the absence of such provision for compulsory arbitration of such dispute the jurisdiction of the Civil Court is not barred.
The learned judge accordingly allowed the appeal and remanded the suit to the first appellate court for decision on merits.
Hence this appeal by special leave by original defendants.
The only contention that falls for consideration in this appeal is whether the civil court has jurisdiction to take cognizance of a suit arising out of a disciplinary proceeding held by a Cane Growers ' Cooperative Society, governed both by 1912 Act and 1953 Act against its employee or such dispute falls exclusively within the jurisdiction of the Registrar under the to be resolved by arbitration alone.
A brief survey of the relevant provisions is necessary for the effective disposal of this contention.
562 When the suit was filed in the year 1964 the Co operative Societies Act, 1912, as adopted and applied by U.P. State was in force in U.P. State.
The expression 'officer ' has been defined in section 2(d) of the Act as under: "2.
Definitions In this Act, unless there is anything repugnant in the subject or context, (d) 'officer ' includes a chairman, secretary, treasurer, member of committee, or other person empowered under the rules or the bye laws to give directions in regard to the business of the society".
Section 43 conferred power on the Local Government to make rules to carry out the purposes of the Act for the whole or any part of the province, on various topics enumerated in various sub clauses of the section.
Clause (1) of section 43(2) is relevant.
It reads as under: "43.
Rules (1) The State Government may, for the whole or any part of the State and for any registered Society or class of such societies make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may (1) provide that any dispute touching the business of a society between members or past members of the society or persons claiming through a member or past member or between a member or past member or persons so claiming and the committee or any officer shall be referred to the Registrar for decision, or if he so directs, to arbitration, and prescribe the mode of appointing an arbitrator or arbitrators and the procedure to be followed in proceedings before the Registrar or such arbitrator or arbitrators, and the enforcement of the decisions of the Registrar or the awards of arbitrators".
Armed with this power the U.P. State enacted what is styled as U.P. Co operative Societies Rules, 1936, Rule 115 of the rules reads as under: "115.
Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past member, (ii) or between a member or a past member or persons so claiming and the society or its committee or any officer of the society, (iii) between the society or its committee and any officer of the society, and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar.
563 Explanation 1.
A dispute shall include claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party.
Explanation 2.
An officer shall include a person appointed for the supervision of the society.
Explanation 3.
The business of a society includes all matters relating to the objects of the society mentioned in the bye laws as also those relating to the election of office bearers of a society".
This rule 115 has to be interpreted in the light of rule 134 which reads as under: "134.
A decision of an arbitrator or arbitrators under these rules if not appealed against within the said period and an order of the Registrar shall, as between the parties to the dispute, not be liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive".
There is another Act which has a bearing on the topic under discussion styled as U.P. Sugarcane (Regulation of Supply and Purchases) Act.
It is an Act enacted to regulate the supply and Purchase of Sugarcane required for use in sugar factories and gur, rab or khandsari sugar manufacturing units and matters incidental or ancillary thereto.
It contemplates setting up of a sugarcane Board and provides for its functions and duties and the methods of filling up vacancies and regulating its finances.
Section 20 confers power on the Governor to impose by a notification a cess not exceeding the amount prescribed in the section on the entry of sugarcane into an area specified in such notification for consumption, use or sale there.
Section 28 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of the Act.
Clause 2(n) in this behalf is relevant.
It reads as under: "28.
Power to make rule (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Act.
(2) Without prejudice to the generality of foregoing power, such rules may provide for xxx xxx xxx (n) the constitution, operation, management, supervision and audit of Canegrowers ' Co operative Societies and Councils and the U.P. Cane Unions Federations and conditions relating to recognition of such societies or their federation for purposes of this Act and Rules and control of their staff and finances".
564 Armed with this power the U.P. Government enacted the U.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1954.
The relevant rules relied upon are rules 54, 55 and 108.
They may be reproduced in extenso: "54.
The power to appoint, grant leave of absence to, punish, dismiss, transfer and control Secretaries, Assistant Secretaries and Accountants of Cane growers Co operative Societies, whether permanent or temporary, shall be exercised by the Federation subject to the general control of the Cane Commissioner who may rescind or modify and order of the Federation: Provided that the Cane Commissioner may himself exercise any of such powers in case of emergency".
Similar powers as stated in Rule 54 may be exercised by the society in respect of the other staff, subject to the regulations made by the Federation and the general control of the Cane Commissioner".
Any dispute touching the business of (a) a Cane growers ' Co operative Society between members, or between members and society, or between two registered societies, or between a society and a factory, or between a cane grower and a factory, (b) a council and a Cane growers ' Co operative Society, or between a council and a factory or between a council and a cane grower, regarding the payment of contribution to a council by a society or a factory and any other dispute relating to the business of a council, shall be referred to the Cane Commissioner for decision.
The Cane Commissioner shall decide it himself or refer it to arbitration.
No suit shall lie in a Civil or Revenue court in respect of any such dispute".
Having had the survey of the relevant provisions of the Acts and the Rules attention may now be focused on the main and the only controversy in this appeal whether in 1964 when the first respondent as plaintiff filed the suit for a declaration that the order dismissing him from service passed by the first appellant is void and for a declaration that he continues to be in service of the first appellant, in the Civil Court at Budayun, that Court had jurisdiction to entertain the suit or not.
First appellant is a federation of Cane Growers ' Co operative Societies and second appellant is a federating unit or first appellant.
At the relevant time first and second appellants were governed by the 1912 Act as well as by the 1953 Act.
Each as a Co operative Society would be governed by the 1912 Act and each as a Cane growers ' Co operative Society and its federation, for the purpose 565 of regulation of supply and purchase of sugarcane, would be governed by the 1953 Act.
The question is whether the Civil Court would have jurisdiction to entertain a suit in 1964 filed by an employee of a co operative society against the Co operative Society for a declaration that the order dismissing him from service is void and for a declaration that he continued to be in service with an alternative prayer for damages ? This contention may be examined first, inter alia, under the provisions of 1912 Act and the rules framed thereunder and subsequently whether the application of the 1953 Act will have any impact on the conclusion.
We have extracted above the definition of the expression 'officer ' in 1912 Act.
Undoubtedly, it is an inclusive definition.
If only the officers enumerated in the definition are comprehended within the expression 'officer ', the first respondent is not an officer in the sense that he was neither a Chairman, Secretary, Treasurer, or a member of the Committee.
But the expression 'officer ' also embraces such other person empowered under the rules or the bye laws to give directions in regard to the business of the society.
If ejusdem generis canon of construction were to be invoked in construing the expression 'officer ' the expression 'other persons ' must take colour from the words preceding it and accordingly other persons therein envisaged must have some semblance of comparison in respect of power and authority to give directions with regard to the business of the society with the enumerated persons such as chairman, secretary, treasurer or member of the committee.
If every employee of the society were to be an officer it would not be necessary for the legislature to provide that persons other than chairman, secretary, treasurer or member of the committee must be such who must have under the rules or the bye laws the power to give directions in regard to the business of the society.
First respondent was at the relevant time a supervisor in charge of manure godown drawing a salary of Rs. 150 p.m.
Nothing has been pointed out to us by the appellants with reference either to the rules or bye laws that first respondent as supervisor was empowered by any rules or the byelaws to give directions in regard to the business of the society.
First respondent thus not being either chairman, secretary, treasurer or member of the committee, or such other person shown to have been empowered under the rules or the bye laws to give directions in regard to the business of the society, unquestionably he was not an officer of the society.
We are conscious of the fact that the definition of the expression 'officer ' is an inclusive definition.
An inclusive definition widens the etymological meaning of the expression or term including therein that which would ordinarily not be comprehended therein.
Firstly, keeping apart the expansive definition by including 566 officers who would otherwise not be comprehended in the expression 'officer ', it may be necessary to ascertain whether first respondent, giving the expression 'officer ' its ordinary etymological meaning, would be comprehended therein.
It may be noticed that the legislature never intended to include every employee or servant of the society within the expression 'officer '.
There is some element of a right to command in the word 'officer ' with someone whose duty it would be to obey.
If there is an officer ordinarily there will be someone subordinate to him, the officer enjoying the power to command and give directions and subordinate to obey or carry out directions.
It may be that even one who is to carry out directions may be an officer in relation to his subordinates.
Thus, what is implicit in the expression 'officer ' is made explicit by the latter part of definition which provides that such other person would also be an officer who is empowered under the rules and bye laws to give directions with regard to the business of the society.
If it is contended that a particular person is an officer because he is empowered to give directions with regard to the business of the society, it would be a question of fact in each case whether a particular person is an officer or a servant or an employee.
Unless the appellants are in a position to point out that first respondent was an officer in the sense that he had power to command and insist on subordinates to obey his directions with regard to business of the society, it would be difficult to believe that a person designated as supervisor drawing a salary of Rs. 150 and incharge of manure godown would be an officer.
In this connection it would be advantageous to refer to section 43(g) of the 1912 Act which confers power on the Local Government to make rules providing for the appointment, suspension and removal of the members of the committee and other officer, and for the procedure at meetings of the committee, and for the powers to be exercised and the duties to be performed by the Committee and other officers.
No rule enacted in exercise of this power was pointed out to us to assert that first respondent would be such officer as contemplated in section 43(g).
Some illustrative cases were relied upon to point out that a godown keeper would not be an officer within the meaning of section 2(d).
In Co operative Central Bank vs Trimbak Narayan Shinganwadikar, an accountant serving in a co operative bank was held not to be an officer of the Bank inasmuch as he had no power to give any direction in regard to the business of the society nor was any rule framed empowering an accountant to give directions.
He was held to be a servant of the society falling outside the definition of the expression 'officer '.
In Manjeri section Krishna Ayyar vs Secretary, Urban Bank Ltd. & Anr.(2) 567 legal adviser of a co operative society was held to be an officer of the society within the meaning of section 2(d).
In Kailash Nath Halwai vs Registrar, Co operative Society, U.P. & Ors.(1), a Division Bench of the Allahabad High Court speaking through Raghubar Dayal, J. (as he then was), held that a manager of a shop run by a Co operative Society was an officer of the society on the finding that he was in a position to give directions in regard to the business of the shop, a business which was included in the business of the society.
The vital contention in this matter was whether rule 115 of the U.P. Co operative Societies Rules, 1936, was ultra vires, and it was so held.
However, this decision was specifically overruled by a Full Bench of the Allahabad High Court in Abu Bakar & Anr.
vs District Handloom Weavers ' Co operative Society, Mau & Anr.(2), in which it was specifically held that rule 115 of the Rules framed under the , is not ultra vires.
On a conspectus of these decisions and the definition of the expression 'officer ' both expansive definition and its etymological sense, first respondent a supervisor working as a godown keeper could not be styled as an 'officer ' of the Co operative Society.
The next limb of the argument is whether rule 115 enacted in exercise of power conferred by clause (1) of sub section (2) of section 43 of the 1912 Act would be attracted.
Clause (1) of section 43(2) confers power to make rules providing for resolution of disputes envisaged by the clause between the parties contemplated by the clause by the Registrar by arbitration.
In exercise of this power rules 115 and 134 have been enacted.
When rules 115 and 134 are read in juxtaposition it becomes clear that if the dispute is one contemplated by rule 115 and arises between the parties therein envisaged it shall have to be resolved by referring the same to the Registrar who will have to get it resolved by arbitration either by himself or by arbitrator or arbitrators appointed by him.
Rule 134 provides that a decision of an arbitrator or arbitrators under the rules, if not appealed as therein provided, shall be final as between the parties in dispute and not liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive.
If, therefore, the 1912 Act confers power to enact rules and the rules so enacted are statutory and if the rules provide for certain types of disputes between certain specific parties to be resolved by arbitration and the decision of the arbitrators is made final and conclusive not correctible by the civil court or unquestionable before the civil court, undoubtedly, the jurisdiction of the civil court 568 in respect of such specified disputes between specified parties enumerated in rule 115 would be wholly excluded.
The question boils down to this: is a dispute between an employee other than an officer of a co operative society and the society arising out of a disciplinary proceeding one which would fall within the ambit of rule 115 ? Clause (iii) of rule 115 was relied upon by the appellant to urge that such a dispute would be one touching the business of a registered society and it would be one between the society and its committee and any officer of the society.
This contention would stand disposed of in view of our finding that the first respondent is not an officer of the society.
In order to attract rule 115 it must be shown (i) that the dispute is the one touching the business of the co operative society; and (ii) that it is between the society and any officer of the society.
Both the conditions have to be cumulatively fulfilled before rule 115 is attracted which would result in ouster of the jurisdiction of the civil court in respect of dispute in view of the provision contained in rule 134.
The first question is, whether a dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of a co operative society is one touching the business of the society.
It is unnecessary to dilate upon this aspect in view of the two decisions of this Court.
In Deccan Merchants Co operative Bank Ltd. vs M/s. Dalichand Jugraj Jain & Ors., (1) section 91 of the Maharashtra Co operative Societies Act, 1968, came up for consideration before this Court.
After analysing the section and observing that five kinds of disputes are enumerated in sub section
(1) of section 91, the fifth being disputes touching the business of a society, the Court held as under: "It is clear that the word 'business ' in this context does not mean affairs of a society because election of office bearers, conduct of general meetings and management of a society would be treated as affairs of a society.
In this sub section the word 'business ' has been used in a narrower sense and it means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws".
Proceeding from this angle the Court held that the dispute between a tenant of a member of the bank in a building which has subsequently been acquired by the Bank cannot be said to be a dispute touching the business of the Bank.
In reaching this conclusion, this 569 Court disapproved the view in Kisanlal & Ors.
vs Co operative Central Bank Ltd.(1), which has relied upon before us.
Confirming the view in the Deccan Merchants Co operative Bank(2), this Court in Co operative Central Bank Ltd. & Ors.
vs Additional Industrial Tribunal, Andhra Pradesh & Ors.,(3) posed a question to itself whether the dispute between the co operative society and the employee touches the business of the society in the sense explained by this Court in that case.
The Court answered the contention as under: "Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under section 61 of the Act.
The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute.
The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself.
It is true that section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression 'touching the business of the society ', in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression.
Since the word 'business ' is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society".
Therefore, on the strength of the aforementioned two decisions it has to be held that a dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be a dispute touching the business of the society.
To some extent this conclusion can be reinforced by reference to the U.P.
Co operative Societies Act, 1965, which repealed and replaced 570 the , in its application to the State of U.P. Section 70 of the 1965 Act provides for settlement of disputes.
The relevant portion reads as under: "70.
Disputes which may be referred to arbitration (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises . . ".
It will be crystal clear that while making a statutory provision for resolution of disputes involving co operative societies by arbitration by the Registrar, the legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration.
It is legislative exposition of the topic under discussion.
It must, however, be made distinctly clear that at the relevant time 1912 Act was in force and the contention has to be answered with reference to 1912 Act and the rules framed thereunder.
It is, however, difficult to believe that the 1965 Act which repealed and replaced the 1912 Act excluded from the field of operation that which was already included under the repealed Act.
On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch as the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration.
However, we would rest this judgment on the second limb of the submission in that not only the dispute must be one touching the business of the society but it must be between the co operative society and its officer.
Firstly respondent being shown not to be one of enumerated officers of the society nor a person empowered to give directions in regard to the business of the society under the rules or the bye laws, he would not be an officer within the meaning of the expression in 1912 Act.
Any dispute between an employee not being an officer and the society would not attract rule 115.
In that view of the matter such a dispute would fall outside the purview of rule 115 and it being a civil dispute and civil court will have jurisdiction to entertain and adjudicate upon the same.
The High Court approached the matter from an entirely different angle.
The learned judge held that this case would be governed by the 1953 Act and rules 54 and 55 enacted in exercise of the powers conferred by section 28 of the 1953 Act have provided a specific forum, viz., a reference to the Cane Commissioner and appeal to the State 571 Government and as rule 108 is not attracted the dispute is not required to be referred to arbitration and, therefore, the civil court will have jurisdiction to entertain the suit.
With respect, it is difficult to subscribe to this view of the High Court.
1953 Act has been enacted to regulate supply and purchase of sugarcane required for use in sugar factories, gur, rab and khandsari manufacturing units.
It envisages setting up of a sugarcane board and the board was entrusted with the function pertaining to the regulation, supply and purchase of cane for sugar factories and for the maintenance of healthy relation between occupiers, managers, of factories, cane growers, co operative societies, etc.
The Act also envisaged setting up of a development council and its functions have been enumerated in section 6.
On a survey of these provisions it appears that the Act was enacted to regulate relations between the cane growers on one hand and sugar factories on the other.
The expression 'cane growers ' co operative society ' has been defined in section 2(f) to mean a society registered under the , one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under section 8 of the said Act.
The appellant is thus a co operative society and it being a federation of such co operative societies it is also included in the expression "cane growers ' co operative society".
Section 28(2)(n) of the Act was relied upon to show that the State Government has power to frame rules amongst others, for the control of the staff and finances.
In exercise of this power rules 54 and 55 have been enacted.
Rule 54 provides that the power to appoint, grant leave of absence, to punish, dismiss, transfer and control secretaries, assistant secretaries and accountants of Cane Growers ' Co operative Societies whether permanent or temporary shall be exercised by the federation, subject to the general control of the Cane Commissioner who may rescind or modify any order of the Federation.
There is a proviso which is not relevant for the present purpose.
Rule 55 confers powers similar to those enumerated in rule 54 to be exercised by the society in respect of other staff subject to the regulations made by the federation and the general control of the Cane Commissioner.
Shorn of embellishment, rule 55 confers power on the Federation, namely, the first appellant, to make regulations for appointment, granting leave of absence, punishment, dismissal and transfer of the staff other than those enumerated in rule 54 and these regulations have to be made subject to the general control of the Cane Commissioner Rule 108 provides for compulsory arbitration of disputes therein mentioned and it is common ground that a dispute of the present nature under examination will not be covered by rule 108.
The High Court observed that rules 54 and 55 being a complete code in itself with regard to regulation making power for disciplinary action with a provision for 572 appeal to the Cane Commissioner and rule 108 not being attracted, the civil court will have jurisdiction to entertain the present dispute.
The High Court overlooked the fact that 1953 Act neither repeals nor replaces 1912 Act.
A cane grower other than a Cane growers ' Cooperative Society would be governed by 1953 Act but the cane grower not being a co operative society it would not be governed by the 1912 Act.
A Cane Growers ' Co operative Society would be governed with regard to the provisions for law of Co operative Societies by 1912 Act and in respect of its business of growing and selling cane it would be governed by 1953 Act.
Both Acts operate in an entirely different field and are enacted with different objects in view.
1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provision of it.
Therefore, some provisions of 1953 Act cannot override or supersede the provisions of 1912 Act and by mere reference to the provisions of 1953 Act the High Court was in error in totally overlooking and ignoring the provisions in 1912 Act and the rules enacted thereunder.
However, in view of our finding that the dispute brought before the Civil Court in this case was not a dispute between a society and its officer and, therefore, one of the conditions for attracting rule 115 having not been satisfied, the civil court will have the jurisdiction to entertain the suit.
For these reasons the decision of the High Court is confirmed.
Accordingly this appeal fails and is dismissed with costs.
As the dispute is very old, we hope that it would be expeditiously disposed of by the learned district judge to whom the matter was remanded by the High Court.
S.R. Appeal dismissed.
| IN-Abs | The respondent joined service in Cane Development Department of the U.P. State Government in 1949 and later on transferred to District Co operative Sugarcane Development Society Ltd., a federating unit of the U.P. Co operative Cane Union Federation Ltd. He was prosecuted and convicted for alleged embezzlement of funds, but was acquitted by the High Court in appeal.
Later as a result of departmental disciplinary proceedings, his services were terminated.
Respondent, therefore, filed a Civil Suit in 1964 which was decreed on May 24, 1967 rejecting the appellant 's plea of bar of jurisdiction by the Civil Court under Rule 115 of the Co operative Societies Rules, 1936, made under section 43 of the .
The First Appellate Court accepted the appeal and dismissed the suit holding that the dispute was one "touching the business of the Co operative Society" and its employee and hence the Civil Court is barred from entertaining the suit.
However, in the second appeal to it, the High Court reversed the First Appellate Court 's order holding that as the respondent is governed by U.P. Sugarcane (Regulation of Supplies and Purchases) Act, 1953, it being both a Co operative Society and a Cane Growers ' Co operative Society and in case of an officer or servant of such Cane Growers ' Co operative Society any dispute between its officers and servants and such society would be governed by Rules 54 and 55 framed under the 1953 Act which provide for a complete machinery for resolution of disputes and Rule 108 does not encompass dispute arising out of a disciplinary proceeding between such society and its officers and servants and therefore, in the absence of such provision for compulsory arbitration of such dispute, the jurisdiction of the Civil Court is not barred.
Dismissing the appeal by special leave, the Court ^ HELD: (1) On a conspectus of the High Court 's decision and the definition of the expression "officer" both expansive definition and its etymological sense, first respondent a Supervisor working as a Godown Keeper could not be styled as an officer of the Co operative Society, he not being either Chairman.
Secretary, Treasurer, or a member of the Committee or such other person shown to have been empowered under the rules or the bye laws to give directions in regard to the business of the society.
And the legislature never intended 559 to include every employee or servant of the society within the expression "officer".
Neither any rule made under section 43(g) of the 1912 Act refers the respondent as an officer.
[567 D, 565 G, 566 F] Co operative Central Bank vs Trimaak Narayan Shinganwadikar, ; Manjeri section Krishna Ayyar vs Secretary, Urban Bank Ltd. & Anr.
AIR 1933 Mad. 682; Kailash Nath Halwai vs Registrar, Co operative Society, U.P. & ors.
, AIR 1960 Allahabad 194 and Abu Baker & Anr.
vs District Handloom Weavers ' Co operative Society, Mau & Anr., AIR 1966 Allahabad 12, referred to.
(2) Rules 115 to 134 of the Co operative Societies Rules, 1936 make it clear that if the dispute is one contemplated by Rule 115 and arises between the parties therein envisaged it shall have to be resolved by referring the same to the Registrar who will have to get it resolved by arbitration either by himself or by arbitrator or arbitrators appointed by him.
Rule 134 provides that a decision of an arbitrator or arbitrators under the rules, if not appealed as therein provided, shall be final as between the parties to the dispute and not liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive.
If, therefore, the 1912 Act confers power to enact rules and the rules so enacted are statutory and if the rules provide for certain types of disputes between certain specific parties to be resolved by arbitration and the decision of the arbitrators is made final and conclusive not correctible by the civil court or unquestionable before the civil court, undoubtedly, the jurisdiction of the civil court in respect of such specified disputes between specified parties enumerated in Rule 114 would be wholly excluded.
[567 F 568 A] (3) In order to attract Rule 115 it must be shown (i) that the dispute is the one touching the business of the co operative society; and (ii) that it is between the society and any officer of the society.
Both the conditions have to be cumulatively fulfilled before Rule 115 is attracted which would result in ouster of the jurisdiction of the civil court in respect of dispute in view of the provision contained in Rule 134.
A dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be "a dispute touching the business" of the society within the meaning of the Rule 115.
[568C, 569G] Deccan Merchants Co operative Bank Ltd vs M/s. Dalichand Jugraj Jain & Ors.
,[1969] 1 SCR 887; Co operative Central Bank Ltd & Ors.
vs Additional Industrial Tribunal, Andhra Pradesh & ors., followed.
Kisanlal & ors.
vs Co operative Central Bank Ltd., AIR 1946 Nagpur 16 approved.
(4) Section 70 of the U.P. Co operative Societies Act, 1965 also makes it clear that while making a statutory provision for resolution of disputes involving co operative societies by arbitration by the Registrar, the legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration.
What was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not "touch the business of the society" and was not within the purview of the compulsory arbitration was made explicit by section 70 of the 1965 Act (which repeal and replace 1912 Act) by expressly excluding it from the field of compulsory arbitration.
[570C, E] 560 (5) The approach of the High Court in coming to the conclusion that the civil court will have jurisdiction to entertain the suit, however, is not correct and totally overlooks and ignores the provisions in 1912 Act and the rules enacted thereunder.
U.P. Sugarcane (Regulation of Supplies and Purchases) Act, 1953 and the operate in an entirely different field and are enacted with different objects in view.
1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provision of it.
[572 C]
|
CIVIL APPEAL NOS .
1317 1318 of 1976.
Appeals by Special Leave from the Judgment and order, dated 13 9 1973 of the Allahabad High Court in CIVIL Misc.
Writ Petition NOS.
2719/69 & 4034/69.
AND WRIT PETITION NOS.
864 / 79 and 251 / 80 (Under Article 32 of the Constitution) 452 R. K. Garg, V. J. Francis, D. K. Garg and Sunil Kumar Jain for the Appellants in CA No. 1317/76 and Petitioner in WP 251/80.
K. K. Singhvi, Anil Kumar Gupta, Brij Bhushan, Virendra Singh, N. P. Mahendra, A. M. Tripathi and section section Khanduja for the Appellant in CA 1318 / 76.
Yogeshwar Prasad, Ashok K. Srivastava and Mrs. Rani Chhabra for the Petitioners in WP No. 864/79.
D. V. Patel, Anil Kumar Gupta, Brij Bhushan, Virendra Singh, N. P. Mahendra and A. M. Tripathi for the Intervener in CA No. 1317/76.
G. N. Dikist and O. P. Rana for Respondent No. 1 in both the appeals.
Shanti Bhushan and M. C. Bhndare for the Respondents Nos.
2 3 in CA No. 1317/76 & R 21 in CA No. 1318/76.
section Markandaya and V. P. Singh for R. 9 in CA No. 1318/76.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This case illustrates the thesis that unlimited jurisdiction under article 136 self defeatingly attracts unlimited litigation which, in turn, clogs up and slows down to zero speed the flow of ultimate decisions, what with the lengthy orality and legal nicety of lawyers ' advocacy.
This bunch of appeals, affecting this fortunes of a large number of engineers, is evidence of the flood of 'service ' litigation which overwhelms the courts, paralyses public offices and demands of our pyramidal Justice System basic changes, jurisdictional and processual.
The perennial problems of Service Justice, which currently crowd the dockets of the higher courts, save all cases of basic breaches of the fundamental law, may well be made over to expert bodies, high powered and final but presided over by top judicial personnel.
Service Jurisprudence is a specialised branch best administered by Special tribunals, not routinely under article 226.
We do not pontificate but share thoughts.
We are concerned mainly with the competitive claims to seniority mainly as between three groups of engineers belonging to the U. P. Service of Engineers (Irrigation Branch Graduate engineers directly recruited by the Public Service Commission by competitive examination, graduate engineers once appointed in 453 numbers but later absorbed after consultation with the Public Commission and diploma holders later promoted as Assistant Engineers.
Brushing aside the hoary history of the Service when the British were hardly concerned with the development of India 's natural resources, we may start the story with the U. P. Public Works Department of which the Irrigation Wing was a part, the other branch being Buildings and Roads.
Later on, separate departments for Buildings and Roads and for irrigations were formed in 1946 as a developmental imperative of the State.
Recruitment to the Service we are here concerned only with the Irrigation Department was governed by vintage Rules framed under section 96B of the Govt.
Of India Act, 1919, which had a confused course, and that factor i.e. lack of comprehensive structural engineering of the Engineering Service Rules is largely responsible for frequent group clashes among the broad brotherhood of engineers whose whole hearted service, now distracted by litigation, is needed for national reconstruction.
But national dedication so vital to poverty eradication,, is subject to one rider in our society viz. charity begins at home.
And so, for their own justice oriented survival, the groups are fighting in courts while the demands of developmental justice to the people need their presence in the countryside.
There were, to begin with, Class I and Class 11 officers, but in 1948, the two were fused into one, viz. the U. P. Service of Engineers (Junior and Senior Scales).
The Service came into being but fresh rules of recruitment were not made.
Thus, a Service was born but then the rules regulating recruitment, conditions and classifications were unborn.
So, Government relied on the old Rules of 1936 for these purposes with some G. O. Or other issued under pressure of exigencies.
The past projected into the present with ad hoc changes a process which, not being scientific nor systematic.
was bound to produce injustice, as it has, in this Service.
The dialectics of Justice to Public Services lead to conflicts between the thesis (the old conditions and anti thesis (the new expectations until a synthesis realist equilibrium without discrimination) is reached be enlightened governmental policy making.
Had Rules for the Service, in tune with the Constitution and the updated facts of life been made by Government, instead of flirting with the past and improving for the present, things would have been different.
Court litigation is not designed for the end, but judges cannot but make do with what fossil Service Rules with engrafted mutations survive.
To dig into the past is our lot in this case.
We do not blame Government for failure to make a whole scheme of post Constitution Rules of Service, pre occupied as it may well be with other priorities.
454 The struggle between the various groups is for seniority, in some cases even for retention of regular appointment.
The State.
had prepared a list of seniority first in December 1965.
This list was attacked as bad in law and the High Court by its judgment of October 1967 in Civil Misc.
Writ No. 4416 of 1966 ordered: "The petition, therefore, succeeds and is allowed.
The respondents are directed not to give effect or act in virtue of the seniority list announced on December 30, 1965.
They are further directed to redetermine the seniority inter se of the petitioner and respondents 2 to 49 in accordance with rule 23.
" Purporting to act on this direction a fresh seniority list was drawn up by Government in May 1969, and this, in turn was challenged by many as violative of article 14 and the High Court allowed some of the writ petitions and held: "For the reasons set out above, Civil Misc.
Writ Petition .
No. 2719 of 1969 is allowed.
The orders of appointment in the substantive capacity of respondents Nos. 2 to 169 and the seniority list, dated 13 5 1969 (Annexure 'K ' to the petitions are quashed.
The State Government is directed to make fresh appointments and draw seniority list in accordance with law keeping in view the office Memorandum.
dated 7 12 1961" The broad perspective we must adopt is plain enough in the light of this Court 's decision (see the concluding observations of Chandrachud, J. in the State of Jammu and Kashmir vs Shri Triloki Nath Khosa and Ors.
The goal of an egalitarian society must be reflected in the process of classification of services, equalisation being the essential direction and perpetration of divisions and proliferation of classes being reduced to the minimum.
Humanism cum equalism, as a way of life, is integral to our constitutional order and slow though the process be, sure shall our steps be towards fusion, not fission in the various Departments of Public Service.
Unfortunately, this constitutional ethos has yet to be imprinted upon the genetic code of the "United Provinces Service of Engineers Class II Irrigation Branch Rules" framed under section 96B of the Government of India Act, 1919 and continued under article 313 of the Constitution.
The result is micro classifications ad hoc amendments, uncertain service conditions, litigative excursions, and indefinite postponement of even a Seniority List.
The ancient year extant 1936 Rules relating to Class II service framed under different conditions, still govern the Service with such 455 patch work modifications through Government Memoranda as were made by the State from time to time.
A garment of seams and stitches to day drapes this developmentally strategic department despite Reports by two expert Committees.
and this anachronistic set of Rules must be adapted by the Court now to fit the over grown anatomy of Irrigation Engineers (Junior Division).
The fury of the controversy rages round seniority in service among the triple categories of Assistant Engineers which we will presently describe.
Before that.
the basic rules of 1936.
Rule 23 regulates inter se seniority and reads thus: "Seniority in the service shall be determined according to the date of the order of appointment to it, provided that if the order of the appointment of two or more candidates bears the same date, their seniority inter se shall be determined according to the order in which their appointment has been notified".
(emphasis added) So, the order of appointment to the Service is decisive of seniority and the service horoscope of each Assistant Engineer has to be cast with reference to his appointment order.
The next question then, is, when is an engineer appointed to the Service? When, under the Rules, he becomes a member of the Service.
until he gains entry into the Service he cannot claim to be appointed to it.
To hover around with prospects of entry is not the same as actual entry.
Therefore, we have to examine when an engineer becomes a member of the Service under the Rules.
Clause (b) of Rule 3 defines 'Member of the Service ' to mean a government servants 'appointed in a substantive capacity under the provisions of these rules. to a post in the cadre Of the Service. ' What, then, is the cadre of the Service? What do we mean by appointment in a substantive capacity to a post in the cadre? Can there be a temporary post included in the cadre? Here, r. 1 becomes relevant.
Rule 4 prescribes the sanctioned strength of the cadre.
It provides that the government may, subject to the provisions of r. 40 of the Civil Services (Classification.
Control and Appeal) Rules, 1930 'increase the cadre by creating permanent or temporary posts from time to time as may be found necessary. ' So a cadre post can be permanent or temporary and if an engineer were appointed substantively to a temporary or permanent post he becomes a member of the Service.
The touchstone then, is the substantive capacity of the appointment.
Here we get into service jargon with slippery semantics and flavoured officialese.
456 Now, we must go to the plural sources of recruitment the arrangement of the ratio among the sources and the requirements for them to get into the Service.
Rules S and 6 relate to this branch of enquiry.
The sources of recruitment are set out thus: Sources of Recruitment: (i) by direct appointment from amongst engineer students who have passed out of the Thomson Civil Engineering College.
Roorkee, and who have completed a course of training in the Irrigation Branch as engineer students, after consulting a permanent Board of Selection, (ii) by direct appointment after advertisement and after consulting a permanent Board of Selection; (iii) by the appointment of officers in the temporary service of the United Provinces.
in Public Works Department, Irrigation Branch, after consulting a permanent Board of Selection; (iv) by promotion of members of the United Provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department, Irrigation Branch, who have.
in the opinion of Government shown exceptional merit.
We have stated earlier that these Rules were framed long before the Constitution of India and have suffered many amendments one of which is the substitution of the Public Service Commission for a permanent Board of Selection.
A Proviso has been added to r. S and that runs thus: "Provided that it will not.
be necessary to consult the Com mission in the case of appointment of a temporary officer to a permanent vacancy if he has already been appointed to a temporary post in the cadre of service after consultation with the Commission.
The amendments shall have effect from the date of notification.
" This Proviso shows 'that temporary officers (whatever that expression means) could be appointed to permanent vacancies without consultation with the Commission, if they had already been appointed to temporary posts after consultation with the Commission.
Thus, we gel the idea of temporary posts and permanent posts, provisional appointments and substantive appointments.
Indeed, the bewildering variety was brought out during arguments by reference to the Fundamental Rules.
A permanent posts means "a post carrying a definite rate of pay sanctioned without limit of time 457 A temporary post means A "a post carrying a definite rate of pay sanctioned for a limited time [FR 9(30)] Fundamental Rule 22B speaks of holding a post in a substantive, temporary of officiating capacity.
But this jargon is not the last word after the Constitution came to be enacted.
Be that as it may, the sources of recruitment are 4 fold.
The Thomson College appointments were formally stopped by a G. O. Of 1950.
Another big change took place.
Direct recruitment, routed through the Public Service Commission was introduced in 1961.
The rules of procedure for direct recruitment and kindred matters are provided by an office Memorandum of December 1961 which we will consider more closely as they bear upon the crucial controversy.
Rule 6 gives power to Government to fix quotas for the various sources and not less than 20% of the vacancies are reserved for selected qualified members of the Subordinate Engineering Service who are category 4 in r. section Persons who are recruited in terms of rr.
5 and 6 are appointed subject to r. 17 which stipulates a spell of probation in regard to all candidates who are not already in the permanent employment of the Irrigation Branch.
We quote the rule: 17.
All persons appointed to the service who are not already in the permanent employ of the Irrigation Branch of the United Provinces Government shall be placed on probation for four years provided that such of them as have undergone training as engineer students, or have served as temporary engineers in the Irrigation Branch of the United Provinces Government, may be permitted to count the period of such training and service respectively towards this period of probation: Provided also that the Government may extend the period of probation in any case.
The Govt.
may at any time during the period of probation dispense with the service of an officer, after giving him one moth 's notice.
, G The probationer is confirmed in his appointment on his satisfactory completion of probation after passing the necessary tests.
Rule 19 relates to confirmation in the appointment of a probationer and reads thus: 19(i) A probationer shall be confirmed in his appointment when (a) he has completed the prescribed period on probation, 458 (b) he has passed all the tests prescribed in the last preceding rule, and (c) the Government are satisfied that he is fit for confirmation.
(ii) All confirmations under this rule shall be notified in the United Provinces Gazette.
Two vital factors must guide us in this interpretative exercise.
If a dated rule of colonial times is to be applied to day.
that meaning which sustains it as constitutionally valid must be preferred to another which may be appealing, going by officialese or literal sense.
We have to regard it as a case of 'new wine in old bottle '.
We must re interpret the rules to comport with articles 14 and 16 by constitutionally acceptable construction, not rigid connotation given to expressions in the vintage vocabulary of British Indian days.
We Stress this aspect because the argument urged is one of unconstitutionality of the Seniority List and of the Rules which deprive many engineers appointed in the normal course and serving for long years arbitrarily and unreasonably of the credit of such service merely because the literal rigour of old Rules requires it.
We must strive to salvage the Rules, if need be, by assigning a fresh sense, language permitting, which will fit the Rules into the "fundamental rights" mould.
We are thus thrown into the meaning of meanings, released from officially sanctified meanings.
In short, while reading the Rules we must remember the Constitution., Secondly, words themselves are but them skins of thought and once we get that, the root though which the language of the rules seeks to express, it is possible to interpret the words accordingly.
Even so, we cannot run away from the Rules as they are, though moth eaten by time and by tinkering amendments.
One of the principal groups in this forensic battle is the direct recruits selected by competitive tests by the Public Service Commission.
So we must bestow some attention on their genesis and position in the total scheme.
We reject the submission that the official Memorandum incorporating these Rules, not being expressed to have been issued in the name of the Governor, is of no legal validity.
We cannot 'bastardize ' these Rules made and published under Government authority, acted upon for two decades and recruitments made by the Public Service Commission and universally accepted as binding 'Rules Regulating Selection for Recruitment of Assistant Engineers (U. P. Service of Engineers class II) in the Various State Engineering Services in Uttar Pradesh '.
We will set out some parts of these Rules of December 7, 1961.
459 We may, at this point, crystallise the effect of the Rules read A so far, so that it may serve as a spring board for further discussion.
The battle between the parties or groups very much turns on what is the intent and effect of Rules 23, 3, 4, S, 6, 17 and 18 and their impact on r.23 read in the new context of this 1961 Rules.
We have to grapple with the crucial question of seniority which, when we hark back to r.23, in turn, revolves round the "date of the order of appointment".
The effect of probation and confirmation is also another consideration.
But r.23 sets out the guideline and the entire endeavour of both sides has been to supply an answer which gives one group a superior position as against another in the competition for seniority which apparently has promotional value when posts of Executive Engineers fall vacant We must confess that because of the absence of a coherent policy of recruitment and conditions of service and on account of frequent changes through executive instructions, apart from the mystique of officialese, it has become difficult for us to rationalise the rules and decode the principles underlying regular appointments relevant to seniority.
Even in court, as the argument proceeded.
judges and advocates had to wrestle with the rules to extract a coherent system out of them.
The High Court, on both the occasions, when challenges were made, quashed the seniority lists and directed fresh lists to be prepared.
But in the absence of clear judicial guidelines the exercise by the Executive would lead to further confusion and cavil and that is why we express our dismay at the whole situation where from stage to stage, chaos, not cosmos, has been the result.
Reference was made to an investigation by the Lal Committee and the Shukla Committee which went into the question of rationalisation of the scheme of recruitment.
classification, seniority and promotion; but as late as 1980 we are in no better position than when the moth eaten rules and instructions were made decades ago.
May be, the Reports of the Lal Committee and Shukla Committee to which reference was made need not, as is the fate of most Reports, gather dust but give light where the will to seek light exists.
This is a sad commentary on the functional failure at the Service level of the State Government which has led not merely to incessant litigations among engineers, uncertainty about their future but also discontent and disincentive vis a vis their work in the Irrigation Department.
We see nothing arbitrary in the 1961 Memorandum although in its application, we have to remember the prior rules and when the 460 two are woven into each other or, rather, when the later 1961 Memorandum is devetailed to the 1936 Rules the results that may follow will have to be ascertained with care and consistently until the ratio of the decisions of this Court in cognate situations.
What is significant to know its that Govt.
decided in 1961 to resort to direct recruitment of Assistant Engineers through competitive examinations held by the Public Service Commission.
It was, however, alive to the fact that massive appointments had already been made, in the years gone by, to the posts of Asst.
Engineers from among graduates in engineering by direct selection and later approval by the Public Service Commission apart from Thomson College graduates in engineering.
The Government was also aware of the promotional claims of those in the subordinate services.
Moreover, there were vacancies permanent and temporary and there were appointees, permanent and temporary.
The equities of the situation had to be taken Dote of because Government could not, without being guilty of cruel snobbery relegate all those, except direct recruits, from among degree holders by competitive examinations through the Public Service Commission, to a secondary status.
In this holistic view it was that the office Memorandum, dated December 7, 1961 was promulgated.
We extract it because its import and impact are decisive to an extent of the fate of the cases before us: The principles regulating selection for recruitment to permanent and temporary posts of Assistant Engineers in the various State Engineering Services have been under the consideration of Government for some time past and after thorough consideration the Governor is pleased to order that in future direct recruitment to both permanent and temporary vacancies of Assistant Engineers (Civil, Electrical and Mechanical) in the Public Works, Irrigation and Local Self Government Engineering Departments will be made on the results of competitive examinations to be conducted by the Public Service Commission.
Candidates possessing technical and other qualifications prescribed in the rules for the Uttar Pradesh Service of Engineers in the Departments concerned will be eligible to appear at the examination for that particular service.
Successful candidates in order of merit will subject to the relevant rules regarding physical fitness and other matters.
be appointed directly on probation against vacant permanent posts and those following will be appointed against temporary posts.
461 3.
All vacancies in the permanent cadre in the Irrigation and Local Self Government Engineering Departments in a particular year will be pooled and filled as follows: (a) 50 per cent by direct recruitment through competitive examination.
(b) 20 per cent by promotion from subordinate services.
(c) 30 per cent by selection from amongst temporary Assistant Engineers recruited through the Public Service Commission.
xx xx xx However, as measure of concession to the existing temporary Assistant Engineers who were recruited as temporary Assistant Engineers on the advice of the Public Service Commission prior to the introduction of this scheme for the time being distribution of vacancies in the permanent cadre of Assistant Engineers will be as follows: (a) 30 per cent by direct recruitment through competitive examination (25 per cent for the Public Works Department), (b) 20 per cent by promotion from subordinate service (25 per cent for the Public Works Department), (c) 50 per cent by selection from amongst existing temporary Assistant Engineers who were recruited as temporary Assistant Engineers through the Public Service Commission.
The distribution of vacancies in the permanent cadre in the above manner will be subject to the condition that the Governor in consultation with the Public Service Commission, may, for special reasons.
increase or decrease the percentage fixed for recruitment by selection and competitive examination in any particular year.
The candidates selected on the results of competitive examination and appointed against permanent vacancies shall be placed on probation for a period of 3 years.
However, in the case of such directly recruited candidates who have served as Assistant Engineers in a particular department in temporary capacity, continuous period of temporary service rendered as Assistant Engineer immediately before selection for permanent post of Assistant Engineer may be allowed to count towards this period of probation.
The candidates will not be required to possess one year 's practical experience, prescribed in the existing rules for recruitment of Assistant Engineers as a pre requisite qualification for 462 recruitment of Assistant Engineer in the various departments.
The period of practical experience will be covered by the period of probation.
During the probationary period candidates will be required to pass the Departmental Examination prescribed by the various departments.
Probationers may be confirmed subject to passing these examinations and their work continuing to be satisfactory.
Temporary and officiating Assistant Engineers possessing the requisite technical qualifications will be eligible to appear in the competitive examination.
The maximum age limit in the case of those working in the department with the approval of the Commission or after having been recruited by the Commission will be 40 years.
Plan and the syllabus of the competitive examination will be as shown in Appendix 'A ' enclosed with these orders.
There is more of this maze of rules and notifications but we desist from bringing them on record since they have not much bearing on the ultimate result.
We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified.
If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights.
Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long lived.
It is irrational to reject the claim of the 'temporary ' appointee on the nominal score of the terminology of the post.
We must also express emphatically that the principle which has received the sanction of this Court 's pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorise and do not admit of any ambiguity and cruelly arbitrary cut off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts.
463 While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16.
While assessing the effect of the totality of the two sets of rules placed before us, we have to make the broad approach set out above and not become prisoners of the 'official ' meaning of abstruse expressions used in the rules which themselves have frequently changed with a view to "rationalisation".
The two committees (the Lal Committee and the Shukla Committee) examined the entire matter but we have no idea, from the Government 's affidavits, as to how far the rules ave been intelligently moulded by these reports.
Right in the beginning, we have indicated that r. 23 is of spinal significance, and for purposes of seniority, one has to go by the order of appointment to the Service in a substantive capacity.
It is difficult to overlook r. 23 or slur over the expression 'substantive capacity '.
But we cannot attribute fixed connotations to expressions like 'substantive capacity ', 'service ', 'Cadre ' and the like because we find that probation even for temporary appointees is provided for in the rules which means that even temporary appointments Gan be substantive.
For, there cannot be probation for a government servant who is not to be absorbed substantively in the Service on completion thereof.
With this background, if we approach the scheme unfolded by the Office Memorandum of December 1961 superimposed on the 1936 Rules, we get three categories of Assistant Engineers and a fixation of the proportion among them.
Firstly, there are to be direct recruits through open competition held by the Public Service Commission.
50% of the posts will go to them although it is stated that the vacancies are to be "in that permanent cadre".
Secondly, the subordinate services will get 20% by promotion and thirdly, 30% will belong to the temporary Assistant Engineers recruited through the Public Service Commission in the past.
The office Memorandum makes it clear that direct recruitments will be made to "both permanent and temporary vacancies of Assistant Engineers".
But this scheme of 1961 cannot stand in isolation and has to be read as subordinate to the 1936 Rules.
After all, the 1961 Memorandum cannot override the Rules which are valid under article 313, and so must be treated as filling the gaps, not flouting the provisions.
So, read, what is the eventual conclusion? The State, in its counter affidavit, has urged that all parties must be deemed to have accepted the decision of the High Court in its judgment of October 30, quashing the seniority list of December 30, 1965.
We are inclined to proceed on that footing because, after that decision 464 was rendered, Government accepted it and went through the exercise of preparing a fresh seniority list and all the engineers concerned acquiesced in the decision and never raised any objection to the fresh preparation of a seniority list consequent upon the High Court 's decision of 1967.
That, by itself, does not give us any conclusive answer to the present question which has been agitated before us.
First of all, we must understand the two grievances brought to our notice by the appellant and the writ petitioners.
Their contention is that whether their appointments were to temporary posts or not, the long service they have put in must weigh in reckoning seniority.
Their further contention is that if the Public Service Commission has arranged the order of merit in a particular manner and if appointments have been made irregularly without reference to that order or priority, they have no objection to marginal re adjustments while arranging the seniority of the various appointees by giving effect to The order in which the Public Service Commission has made its recommendations.
It is also fairly apparent from the arguments, although not formally conceded by counsel, that officiation, from the date from which temporarily appointed Assistant Engineers have been formally approved by the Public Service Commission on reference by the State Governments must be given credit or at least from the date of Government 's acceptance.
Of the Commission 's recommendation.
There was nothing more by way of impediment in their appointments being treated as regular.
They were Assistant Engineers duly qualified.
Their appointments might have been temporary, but temporary posts and temporary appointments are within the Rules.
The Public Service Commission has since been consulted and has concurred and Government has accepted it.
Every indicium of regular appointment is thus present.
There is nothing relied on by the rivals to dislodge the reckoning of service for purposes of seniority from then on except the sole contention that the temporary Assistant Engineers are not members of the Service because their appointment is not in substantive capacity and not a permanent post.
We are free to confess that the rules, stricking divergent notes, like ill tuned cymbals, have vexed us a while.
The touchstone of valid interpretation being the Constitution and harmonisation of rules with fundamental rights being the proper path we have tried to sensitize the provisions to do equal justice under the law refusing to petrify r. 23 or the other relevant rules we have referred to Rule 4 of the 1936 Rules clearly contemplates a cadre, as covering "permanent or temporary posts".
So, a cadre takes in temporary posts.
Once we cease to be allergic to 'temporary posts ' as a component of a cadre we reach 465 the next step that a cadre is, as it were, a layer in the Service.
Rule 4 itself, while dealing with the strength of the cadre, speaks of a holder of a post in a cadre as a member of the Service may be the holder of a temporary or a permanent post.
We have two, perhaps three, types of direct recruits.
The first is the vanishing species of Roorkee University 'engineer students '.
They were directly appointed but on a temporary footing.
Massive appointments were made of other degree holders as Assistant Engineers on a temporary footing to meet the massive developmental requirements.
No one can imagine that the guaranteed posts to the brilliant Roorkee boys was temporary only or that the large number of graduates were being lured into employment for long term engineering requirements on a fleeting footing for a few months.
Surely, Government wanted to recruit them on a regular basis but hesitated to appoint them to permanent posts as such because budgetary provisions, creation of permanent posts by assessment of the total requirements and the like were not instant jobs but needed more time.
The Plan was to take these degree holders on a regular lasting basis but to make them permanent after study of the situation.
Permanency carries with it other rights than mere seniority and promotion.
Permanent posts and temporary posts are, in ordinary officialese, sharply different but in the historical context of the evolving U.P. Service of Engineers 'thin partition do their bounds divide '.
The recruitment of even temporary engineers under source (iii) of r. 5 requires consultation with the Public Service Commission.
Likewise r. 14 requires for all the three types of direct recruits, temporary included, physical fitness tests.
No person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service.
Before a candidate is finally approved for appointment to the service under the provisions of rules 5(i), 5(ii) or 5(iii) he shall be required to pass an examination by a Medical Board at his own expenses and shall pay a fee of Rs. 16 for such examination.
Probation, tests and confirmation are laid down under rr.
17 to 19 for "all persons appointed to the service".
We delve into these details to drive home the propinquity in status of permanent and temporary engineers in the special conspectus of facts here.
We see no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity.
In Service terminology, 466 perhaps, eye brows may be raised when we say so, but then, we must remember that the State itself in its counter affidavit has construed r. 17 of the Rules as providing "that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years).
This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation.
That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Service.
It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc.
From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity.
The only advantage for permanent appointees, i.e. Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of official life.
We are not interested in the arithmatics given in the affidavits and counter affidavits regarding the permanent vacancies in the various categories designated as A, B and C.
What we focus on is the set of principles which must regulate the service available for computation of seniority.
In paragraph 22 of the State 's counter affidavit the break up of the vacancies available in the various years to the various categories has been set out.
Their accuracy has not been shown to be wrong and we may, perhaps, proceed on the correctness of those figures.
It is also made clear by the State that many officers belonging to the class of temporary Assistant Engineers were directly recruited before October 1958 and some of them were promoted as temporally Assistant Engineers from the Subordinate Engineers Service.
"These officers had been approved for temporary appointment by the Public Service Commission before 1958".
Likewise, for the other years, particulars have been furnished.
The Government has also clearly undertaken that the competitive seniority as between direct recruits and the temporary appointees who have been regularised may have to be taken up later on.
The State 's affidavit asserts: "It is also correct that in the appointment order it was mentioned that seniority inter se and on the list of permanent Assistant 467 Engineer of the officers will be determined later on.
" We do not consider it right or necessary to fix the seniority vis a vis the date of appointment of the various parties, as that is the administrative function of Government.
Nor do we think we should interfere with the order of the High Court setting aside the seniority list of 1969.
A fresh list has anyway to be prepared but the more meaningful judicial exercise is to lay down the correct principles and guidelines, free from discriminatory infirmities and fairly in keeping with the extant Service Rules.
The Rules are, we make it clear, those made in 1936 under the Government of India Act, 1919 and continued by force of article 313 of the Constitution.
Changes wrought by orders and instructions such as the 1961 Memorandum cannot over ride the Rules themselves but will operate subject to them in case of inconsistency.
Even an Administration of Inaction Unlimited must remember that a systematic set of Service Rules is vital not only in fulfillment of its constitutional obligation under the proviso to article 309 but also to keep the morale and to promote contentment among the Civil Services by eliminating the 'inglorious uncertainties ' about career prospects which cut at the root of planned living.
So we hope that, what with two expert committee reports slumbering in the Secretariat cells, Government will frame rules, tuned to the finer notes of article 16 and other mandates and in consonance with the realities obtaining in this and sister services, after hearing affected sides as a stroke of fair play and without being file logged for long.
We hold that r. 23 is the relevant mariner 's compass when a question of seniority arises.
Deducing therefrom we get the further guideline that the order of appointment in a substantive capacity is the significant starting point for reckoning seniority.
Substantive capacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed.
On the contrary, its meaning must be consistent with article 16 and must avoid the pitfalls of arbitrariness and irrational injustice.
So viewed, we hold that the appointment need not necessarily be to a permanent post.
It is sufficient even if it is to a temporary post of long duration.
In a Department which had permanent posts and temporary posts of a quasi permanent nature, there is not much to distinguish the quality of service as between the two.
Patwardhan 's case and Chauhan 's case have primarily or in passing clarified the equal value of officiating service.
468 In Patwardhan 's case, Chandrachud, J. Observed in the course of the discussion "There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both.
" Later, the learned Judge observed in the same strain: The fact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IV cadre.
The Court, in that case, also held that confirmation cannot be the sole touchstone of seniority as that will be indefensible: Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies.
A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court.
It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed.
It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.
In Chauhan 's case this Court observed: "Seniority, normally, is measured by length of continuous officiating service the actual is easily accepted as the legal.
" Of course, an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim.
Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term.
We must make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department.
In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably.
A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head 'temporary ' for budgetary or other technical reasons.
Those who are appointed 469 and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporary post.
What, in the context, is a substantive capacity vis a vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B ' or constituent or relating to what is essential".
We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity".
What is independent in a substantial measure may reasonably be described as substantive.
Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State.
Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post.
To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.
Once we understand 'substantive capacity ' in the above sense, we may be able to rationalise the situation.
If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.
Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary.
If it is not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commission 's approval has been obtained and whether probation, medical fitness etc., are complete.
Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority.
For other purposes they may remain temporary.
It may well be that another interpretation may make r. 23 vulnerable.
If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time honoured classification, can it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all 470 functional respects but with ten years less of service steals a march.
Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations.
We take the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6.
So much so.
the various.
groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.
The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist.
We see nothing in the scheme of the Rules contrary to that principle.
Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.
We, therefore, direct that a seniority list be prepared in the light of the principles laid down by us.
It is not for the court to find out how many among the temporary Assistant Engineers are eligible for permanency, how many have cleared all the requirements regarding regular appointments even in temporary vacancies in short, how many must be deemed to have been appointed in a substantive vacancy though temporary.
That will be worked but by the State in the light of what we have laid down.
We do not agree with the High Court in the partly misleading reasoning it has adopted, but do concur in the conclusion that the seniority list deserves to be set aside.
We do so in partial allowance of the appeals and dismiss the writ petitions.
Parties will be 'heard ' by Government through written or oral representations as it chooses, when it prepares a seniority list but the principles we have put down shall govern.
The parties will bear their costs through out.
P.B.R. Appeals partly allowed.
Petitions dismissed.
| IN-Abs | Under rule 3(b) of the U. P. Service of Engineers (Junior and Senior Scales) irrigation Branch Rules a member of the service means a government servant appointed in a substantive capacity under the provisions of the rules to a post in the cadre of the service.
Rule 4 empowers the State Government to increase the cadre by creating permanent or temporary posts from time to time according to the exigencies.
Rules S and 6 contemplate recruitment (i) by direct appointment from amongst engineer students of the Thomson Civil Engineering College, Roorkee, (ii) by direct appointment, (iii) by appointment of officers in the temporary service of the United Provinces, Public Works Department (Irrigation Branch), (the selection in all these three categories was to be after consulting a permanent Board of Selection) and (iv) by promotion of members of the Subordinate Engineering Service, who have, in the opinion of the Government, shown exceptional merit.
The proviso to rule S states that it would not be necessary to consult the Commission in the case of appointment of a temporary officer to a permanent vacancy, if he has already been appointed to a temporary post in the cadre of service after consultation with the Commission.
In 1950 recruitment through Thomson College was stopped and in 1961 direct recruitment was made through the Public Service Commission.
Rule 6 empowers the Government to fill quotas for members of the Subordinate Engineering Service.
Rule 17 stipulates a period of probation in regard to all candidates who were not in the permanent employment of the Irrigation Branch.
Rule 19 provides the mode of confirmation of a probationer in his appointment.
Rule 23 regulating the inter se seniority of the officers states that seniority in the ser ice shall be determined according to the date of the order of appointment to it.
In 1948 by combining class I and class II officers into one service the Government constituted the U. P. Service of Engineers (Junior and Senior Scales) but since the rules regulating their recruitment, conditions and classifications could not be made, the Government followed the 1936 Rules which were modified from time to time by Government orders.
The High Court struck down the seniority list of engineers prepared by the State Government in 1965 and gave directions to the Government to re determine the seniority in accordance with Rules 23 of the Rules.
Purporting to act on these directions a fresh seniority list was drawn up by the Government in May, 1969 but that too was struck down by the High Court.
450 In appeal to this Court it was contended that it was not correct to say that the temporary Assistant Engineers were not members of the service on the ground that their appointment was not in a substantive capacity in permanent posts since they had fulfilled all the requirements of the rules for being appointed on a regular basis viz. possessing the requisite qualifications, selection by the State Service Commission etc.
irrespective of whether their appointments were to temporary posts or not, the long service they had put in must weigh in reckoning the seniority.
Allowing the appeal in part ^ HELD: The G. O. Of December 1961 in so far as it fixes the proportion of permanent vacancies to be filled from the various sources had statutory force being under rule 6.
So much so, the various groups can claim permanency only in terms of that proportion, although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.
[470B C] While temporary and permanent posts have great relevancy in regard to the career of the government servants, keeping posts temporary for long, sometimes by annual renewals for several years and denying the claims of the incumbents on the score that their posts are temporary, makes no sense and is arbitrary especially when both temporary and permanent appointees are functionally identified.
If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no right.
Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long lived.
It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of tho post.
[462 D] Officiating service in a post is for all practical purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity and an arbitrary cut off of long years of service does not take place.
While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16.
[462 G H] For purposes of seniority, one has to go by the order of appointment to the Service in a substantive capacity.
But no fixed connotations can be attributed to expressions like 'substantive capacity ', 'service ', 'cadre ' and the like because probation even for temporary appointees is provided for in the rules which means that even temporary appointments can be substantive.
For there cannot be probation for a government servant who is not to be absolved substantively in the Ser ice on completion thereof.
Permanency carries with it other rights than mere seniority and promotion.
Permanent posts and temporary posts are in official terminology sharply different but in the historical context of the U.P. service of Engineers there is no difference because recruitment of even temporary engineers requires consultation with the Public Service Commission, undergoing physical fitness tests, probation and 451 departmental tests.
The temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation must be deemed to be appointed in a substantive capacity.
[465 D E] It is not correct to say that when Engineers are appointed to temporary posts but after fulfilling all the tests for regular appointment they are not appointed in a substantive capacity.
It was concluded by the State in its counter affidavit that all the persons appointed to the service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years (since reduced to two years), which means that persons who were not permanently appointed but only temporarily appointed are also placed on probation and officer are not put on probation unless they arc on their way to membership in the Service on completion of probation.
That is to say although they are temporary appointees, if their probation was completed and other formalities fulfilled, they become members of the service.
Merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission.
[466 A D] Rule 23 is the relevant rule when a question of seniority arises.
The order of appointment in a substantive capacity is the significant starting point for reckoning seniority.
The appointment in a substantive capacity need not necessarily be to a permanent post.
It is sufficient even if it is to a temporary post of long duration.
[467 E G] An appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim.
Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one, who, by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term.
[468 F] A person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation.
If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.
[469 D E]
|
Civil Apptal Nos.
1285 1296 of 1970.
Appeals by Special Leave from the Judgment and order dated 6 3 1969 of the Mysore High Court in W.P. Nos.
2560 61/66 and 46, 47, 50, 51, 975, 1718, 1719, 1921, 1979 and 1980/67.
G. L. Sanghi, M. N. Shroff and Miss A. Subhashini for the Appellants.
R. B. Datar for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
These appeals by special leave are directed against the judgment of the Karnataka High Court allowing 12 writ petitions filed by different respondents.
Each of the respondents owned at the material time not more than 4 powerlooms and carried on business of manufacturing cotton fabrics on those powerlooms.
The case of the respondents was that each of them acquired his powerlooms from person who were or had been licensees and started manufacturing cotton fabrics on those powerlooms prior to 1st April, 1961.
The respondents claimed that since each of them had not more than 4 powerlooms in his factory, no excise duty was payable on the cotton fabrics manufactured by him and this claim for exemption was based on a notification dated 5th January, 1957 issued by the Government of India in exercise of the powers conferred upon it by Rule 8(1) of the Central Excise Rules, 1944.
The Superintendent of Central Excise, however.
rejected the claim for exemption on the ground that though the powerlooms owned by each of the respondents were not more than 4, manufacture of cotton fabrics on them had started after 1st April, 1961 and none of the respondents was, therefore, entitled to exemption from payment of excise duty on the cotton fabrics manufactured by him.
The excise duty was accordingly levied on each of the respondents by the Superintendent of Central Excise and this levy was confirmed in appeal by the Assistant Collector and in further appeal by the Collector of Central Excise.
Each of the respondents thereupon preferred a writ petition in the Karnataka High Court challenging the levy of excise 516 duty and praying that a writ of mandamus may be issued against the Excise Authorities directing them not to enforce the notice demanding excise duty.
The writ petitions were allowed by the High Court and hence the Union of India preferred the present appeals after obtaining special leave from this Court.
Before we proceed to examine the rival contentions of the parties in regard to the controversy arising in these appeals, it is necessary to set out briefly the relevant provisions of law having a bearing on this controversy.
The Central Excise and Salt Act, 1944 by section 3 read with Item 19 provided for levy of excise duty on all varieties of cotton fabrics including cotton fabrics manufactured on powerlooms.
Section 37 sub section (2) of the Act conferred power on the Central Government to make Rules providing for a number of matters including inter alia clause (xvii) which was in the following terms: "Exempt any goods from the whole or any part of duty imposed by this Act.
" The Central Government in exercise of this rule making power made the Central Excise Rules, 1944 of which Rule 8 clause (1) provided that "the Central Government may from time to time by notification in the official Gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from the whole or any part of the duty leviable on such goods.
" In exercise of this power of exemption conferred under Rule 8 clause (1) the Central Government issued a notification dated 5th January, 1957 exempting certain varieties of cotton fabrics from the whole of the excise duty leviable thereon and one of such varieties set out in Item 7 was as under: "Cotton fabrics produced in factories commonly known as powerlooms (without spinning plants) provided that the number of powerlooms producing cotton fabrics in such factories does not exceed four." This item was later substituted by another item by a notification of the Central Government dated 19th January, 1957 and the substituted item was as follows: "Cotton fabrics manufactured by or on behalf of the same person in one or more factories commonly known as powerlooms (without spinning plants), in which less than 5 powerlooms in all are installed.
" The scope of the exemption granted under this item was restricted by the addition of the following proviso by a Central Government notification dated 26th November.
1960: 517 "Provided that this exemption shall not be applicable to a manufacturer who commences production of the said fabrics for the first time on or after the 1st December, 1960 by acquiring powerlooms from any other person who is.
or has been a licensee of powerloom factory.
" There was a further change made by a notification issued by the Central Government on 1st March, 1961 and the then existing Item 7 was substituted by the following Item: "(7) Cotton fabrics manufactured by or on behalf of the same person in one or more factories commonly known as powerlooms (without spinning plants) in which less than 3 powerlooms in all but not roller locker machine are installed.
" The result was that the exemption granted under Item 7 was considerably narrowed down and the proviso taking away the exemption in certain cases was deleted.
But again, by a notification dated 1st April, 1961, the Central Government introduced the following proviso under Item 7: "Provided that this exemption shall not be applicable to a manufacturer who commences production of the said fabrics for the first time on or after the 1st April, 1961 by acquiring powerlooms from any other person who is or has been a licensee of powerloom factory." Thus from 1st March, 1961 the benefit of the exemption from excise duty was available only to those manufacturers who had not more than 2 powerlooms in all in their factories and from and after 1st April, 1961 even this limited exemption was withdrawn from manufacturers who commenced production of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from any person who was or had been a licensee of powerloom factory.
Now in the present appeals each of the respondents owned admittedly not more than 4 powerlooms, but it does not appear from the record before us as to whether any of them owned more than 2 powerlooms.
If it is found that any of the respondents owned more than 2 powerlooms, he would not be within the exemption granted under Item 7 of the amended Notification dated 5th January.
1957 and excise duty would be payable on the cotton fabrics manufactured by him.
But even if any of the respondents owned not more than 2 powerlooms and was, therefore, within the exemption granted under item 7 of the amended notification dated 5th January, 1957, the question would still arise whether he forfeited the exemption by reason of the proviso to Item 7 introduced by the notification dated 1st 518 April, 1961.
The answer to this question would depend upon the true construction of the proviso and we shall presently consider this question, but before we do so, it is necessary to refer to some other notifications issued by the Central Government under the Central Excise Rules, 1944.
On 1st March, 1961, the Central Government in exercise of the power conferred upon it under Rule 96 J of the Central Excise Rules, 1944 issued a notification providing for a compounded levy scheme for payment of excise duty on cotton fabrics.
By this notification, the Central Government fixed different rates "per shift, per month, per powerloom employed by or on behalf of the same person in the manufacture of cotton fabrics" depending upon the number of powerlooms employed by such person.
The rates prescribed for a case where more than 2 but not more than 24 powerlooms were employed were Rs. 20 where medium and/or coarse fabrics were manufactured and Rs. 25 where the powerlooms were employed in the manufacture of superfine and/or fine fabrics.
There was a proviso at the foot of the notification (hereinafter referred to as the first proviso) which laid down as to how the computation should be made where roller locker machines were employed.
The rates prescribed for a case where more than 2 but not more than 24 powerlooms were employed, were partially modified with retrospective effect by a subsequent notification issued by the Central Government on 18th March, 1961 and the new rates were Rs. 10 and Rs. 12.50 in respect of the first 4 powerlooms and Rs. 20 and Rs. 25 in respect of the balance.
The first proviso dealing with the case where roller locker machines were employed however, remained unchanged.
Then came another notification of the Central Government dated 1st April, 1961 by which the notification dated 18th March, 1961 was amended by substituting the words "where more than 2 but not more than 24 powerlooms are employed" by the words "where not more than 24 powerlooms are employed" and adding a further proviso (hereinafter referred to as the third proviso) after the existing first proviso: "Provided also that where a person commences manufacture of the said fabrics for the first time on or after the 1st April, 1961, by acquiring powerlooms from any other person who is, or has been.
a licensee of powerloom factory, the rate per shift, per month, per powerloom shall be the next higher rate, if any.
" This was followed by a notification dated 20th April, 1961 issued by the Central Government by which after the first proviso, the following proviso (hereinafter referred to as the second proviso) was inserted in the notification dated 18th March, 1961 519 "Provided further that where a person employs not more than four powerlooms and the said powerlooms are worked in not more than one shift, no duty shall be payable in respect thereof.
" The result was that from 18th March, 1961 upto 1st April, 1961, a manufacturer having more than two but not more than 24 powerlooms was liable to pay excise duty at the rates set out in the amended notification dated 18th March, 1961 and from 1st April, 1961 to 21st April, 1961, the position was that if such a manufacturer was found to have commenced manufacture of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from another person who was or had been a licensee of powerloom factory, the rate at which excise duty would be payable by him would be the next higher rate specified in the amended notification dated 18th March, 1961.
So far as a manufacturer having two or less powerlooms was concerned, he was during the period from 18th March, 1961 upto 1st April, 1961 exempt from excise duty by reason of the notification dated 5th January, 1957, but from 1st April, 1961 to 21st April, 1961 this exemption stood with drawn if it was found that the manufacturer had commenced manufacture of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from another person who was or had been a licensee of powerloom factory and in such a case a manufacturer would be liable to pay excise duty at the next higher rate prescribed in the amended notification dated 18th March, 1961.
This was the position which obtained upto 20th April, 1961, when the second proviso was introduced exempting a manufacturer employing not more than 4 powerlooms and working even in not more than one shift from payment of excise duty.
Each of the respondents had admittedly not more than 4 powerlooms and it was the case of the respondents that these powerlooms were worked in not more than one shift and hence the respondents claimed that they were exempted from liability for payment of excise duty by virtue of the second proviso.
But the answer made on behalf of the Revenue was that the third proviso carved out an exception from the second proviso and since each of the respondents commenced manufacture of cotton fabrics for the first time after 1st April, 1961, he was not exempt from payment of excise duty, but was liable to pay the same at the next higher rate provided in the amended notification dated 18th March, 1961.
Now going back to the proviso under Item 7 of the notification dated 5th January, 1957, we find that the language of this proviso is clear and explicit and does not admit of any doubt or equivocation.
It says in so many terms that the exemption under Item 7 shall not be applicable to a manufacturer who has commenced his production 520 of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from another person who is or has been a licensee of powerloom factory.
There are two conditions which must exist before the mischief of the proviso is attracted.
One is that the manufacturer must have commenced production of cotton fabrics for the first time on or after 1st April, 1961 and the other is that the powerlooms on which he manufactures cotton fabrics must have been acquired by him from a person who is or has been a licensee of powerloom factory.
It is clear on a plain grammatical construction that the prescription of the date, 1st April, 1961, has reference only to commencement of production of the cotton fabrics and not to the acquisition of the powerlooms.
What is required is that the production of cotton fabrics must have been commenced by the manufacturer for the first time on or after 1st April, 1961 and not that the powerlooms also must have been acquired by him on or after that date.
It is immaterial as to when the manufacturer acquired the powerlooms; he may have acquired them prior to 1st April, 1961; that is totally irrelevant.
The only attribute that the powerlooms must satisfy is that they must have been acquired from a person who is or has been a licensee of powerloom factory and if this attribute is present, then it is of no consequence as to when the powerlooms were acquired by the manufacturer.
The event which then attracts the applicability of the proviso is that the manufacturer should have commenced production of cotton fabrics on these powerlooms for the first time on or after 1st April, 1961.
If this condition is satisfied, the proviso comes into play and withdraws the exemption which would otherwise have been available to the manufacturer under the main Item 7.
If the intention of the Central Government in framing the proviso was that not only the production of cotton fabrics on the powerlooms should have commenced on or after 1st April, 1961, but that the powerlooms also should have been acquired by the manufacturer on or after that date, the Central Government could have easily expressed such intention by using appropriate language in the proviso.
The Central Government could have transposed the words "on or after the 1st April, 1961" and put them at the end of the proviso.
That would have clearly conveyed the intention of the Central Government that the powerlooms must be acquired by the manufacturer on or after 1st April, 1961 and if the powerlooms are acquired on or after 1st April, 1961, it must follow a fortiorari that the production of cotton fabrics on the powerlooms by the manufacturer would necessarily commence on or after that date.
But the Central Government advisedly placed the words "on or after the 1st April, 1961" after the clause referring to commencement of production and before the clause relating to acquisition of powerlooms.
It is a 521 well settled rule of interpretation applicable alike to the rule making authority as to the legislature that where there are two expressions which could have been used to convey a certain intention, but one of these expressions conveys that intention less clearly than the other, it is proper to conclude that if the draftsman used that one of the two expressions which would convey the intention less clearly, he does not intend to convey that intention at all.
Moreover, here the dictates of grammar as well as language compel us to take the view that the date 1st April, 1961 has reference only to commencement of production and not to acquisition of the powerlooms.
It is to our mind clear that if a manufacturer is found to have commenced production of cotton fabrics on powerlooms for the first time on or after 1st April, 1961, he would fall within the mischief of the proviso and it would be entirely immaterial as to when he acquired the powerlooms, whether before or after 1st April, 1961, so long as the powerlooms are acquired from a person who is or has been a licensee of powerloom factory.
The High Court was, therefore, clearly in error in construing the language of this proviso to mean that the powerlooms also must have been acquired by the manufacturer on or after 1st April, 1961 in order to attract the applicability of the proviso.
The same construction must obviously be placed on the third proviso introduced in the notification dated 18th March, 1961 by the notification of 1st April, 1961.
The language and structure of the third proviso are identical with the language and structure of the proviso under Item 7 of the notification dated 5th January, 1957 and the same view must, therefore, govern the interpretation of the third proviso.
It is unnecessary to repeat what we have said in the foregoing paragraph, because what we have said there applies fully and completely in regard to the interpretation of the third proviso and, therefore, in order to determine whether this proviso is applicable to any of the respondents, we have to consider whether the respondent concerned commenced manufacture of cotton fabrics on the power looms for the first time on or after 1st April, 1961, irrespective whether he acquired the powerlooms before or after that date.
The only relevant inquiry necessary to be made is as to when the manufacturer of cotton fabrics on the powerlooms was commenced for the first time by the respondent.
If it was on or after 1st April, 1961, the mischief of the third proviso would be attracted and the respondent would be liable to pay excise duty at the next higher rate.
Of course, the second proviso introduced in the notification dated 18th March, 1961 with effect from 20th April, 1961 provided that where a person employs not more than 4 powerlooms and these powerlooms are worked in not more than one shift, no excise duty shall be payable in respect thereof, 522 but the third proviso on its proper interpretation, enacts a substantive provision for payment of excise duty at the next higher rate in the cases therein specified and this substantive provision overrides the second proviso.
The second proviso exempts a manufacturer employing not more than 4 powerlooms and working not more than one shift from payment of excise duty in those cases which do not fall within the third proviso and where a case is covered by the third proviso, the second proviso would be inapplicable and the manufacturer would be liable to pay excise duty, at the next higher rate.
This is the only way in which the two provisos can be harmoniously construed in a manner which would give effect to both.
We are, therefore, of the view that even though each of the respondents in the present case owned not more than four powerlooms, he would be liable to pay excise duty at the next higher rate under the third proviso to the notification dated 18th March, 1961, if he started manufacture of cotton fabrics on his powerlooms for the first time on or after 1st April, 1961, irrespective whether he acquired the powerlooms from the licensee before or after that date.
We must, therefore, set aside the judgment of the High Court and send the matter back to the High Court so that the High Court may decide the writ petitions of the respondents in accordance with law and in the light of the observations contained in this judgment.
We accordingly allow the appeals, set aside the judgment of the High Court and remand the writ petitions to the High Court for disposal in accordance with the law.
Though the appellants have succeeded, they will pay the costs of the respondents as provided in the order granting special leave.
N.K.A. Appeals allowed.
| IN-Abs | Exercising the power of exemption conferred under rule 8(1) of the Central Excise Rules, 1944, the Central Government by a notification dated January 5, 1957 exempted certain varieties of cotton fabrics from the whole of the excise duty leviable thereon.
Item 7 set out one of such varieties as under: "Cotton fabrics produced. powerlooms. provided that the number of powerlooms producing cotton fabrics in such factories does not exceed four.
" By a notification dated November 26, 1960 a proviso was added to this item stating that "this exemption shall not be applicable to a manufacturer who commences production for the first time on or after the December 1, 1960 by acquiring powerlooms from any other person who is or has been a licensee of a powerloom factory.
" From March 1, 1961 item 7 was substituted and from April 1, 1961 a proviso was added to item 7, the effect of both of which was that while from March 1, 1961 the benefit of exemption from excise duty was available only to those manufacturers who had not more than two powerlooms in their factories, from and after April 1, 1961 even this limited exemption was withdrawn from manufacturers who commenced production for the first time on or after April 1, 1961 by acquiring powerlooms from any person who was or had been a licensee of powerloom factory.
From March 18, 1961 a second proviso to item 7 was added which provides "where a person employs not more than four powerlooms and the said powerlooms are worked in not more than one shift no duty shall be payable in respect thereof".
From April 1, 1961 a third proviso was added stating "where a person commences manufacture of the said fabrics for the first time on or after April 1, 1961 by acquiring powerlooms from any other person who is or has been a licensee of powerloom factory the rate per shift per month per powerloom shall be the next higher rate if any".
The respondents had acquired powerlooms after April 1, 1961 from persons who were or had been licensees and were manufacturing cotton fabrics on those powerlooms prior to April 1, 1961.
They claimed that since each of them had not more than four powerlooms which worked in not more than one shift he was exempt from payment of excise duty by virtue of the second proviso to item 7.
The Superintendent of Central Excise on the other hand contended that the third proviso carved out an exception from the second proviso and since 514 each of the respondents commenced manufacture of cotton fabrics for the first time after April 1, 1961 he was not exempt from payment of excise duty but was liable to pay duty at the next higher rate provided in the amended notification of March 18, 1961.
Appeals of the respondents having been rejected by the Assistant Collector and the Collector they filed writs in the High Court challenging the levy of excise duty.
Their writ petitions were allowed by the High Court.
Allowing the appeals ^ HELD:(1) It is a well settled rule of interpretation applicable alike to the rule making authority as to the legislature that where there are two expressions which could have been used to convey a certain intention, but one of these expressions conveys that intention less clearly than the other, it is proper to conclude that if the draftsman used that one of the two expressions which would convey the intention less clearly, he does not intend to convey that intention at all.
[523 A] It is clear on a plain grammatical construction of the proviso under Item 7 of the Notification dated 5th January, 1957 that the prescription of the date 1st April, 1961 has reference only to commencement of production of the cotton fabrics and not to the acquisition of the powerlooms.
What is required is that the production of cotton fabrics must have been commenced by the manufacturer for the first time on or after 1st April, 1961 and not that the powerlooms also must have been acquired by him on or after that date.
[520 C D] 2 (a) Even though each of the respondents owned not more than four powerlooms he would be liable to pay excise duty at the next higher rate under the third proviso to the notification dated March 18, 1961, if he started manufacture of cotton fabrics on his powerlooms for the first time on or after April 1, 1961, irrespective whether he acquired the powerlooms from a licensee before or after that date.
[522 C D] (b) The exemption under item 7 is not applicable to a manufacturer who has commenced his production of cotton fabrics for the first time on or after April 1, 1961, by acquiring powerlooms from another person who is or has been a licensee of a powerloom factory.
Two conditions which must exist before the mischief of the proviso is attracted are: (1) the manufacturer must have commenced production of cotton fabrics for the first time on or after April 1, 1961 and (2) the powerlooms on which he manufactures cotton fabrics must have been acquired by him from a person who is or has been a licensee of a powerloom factory.
The event which attracts the applicability of the proviso is that the manufacturer should have commenced production of cotton fabrics on these powerlooms for the first time on or after April 1, 1961.
If this condition is satisfied the proviso comes into play and withdraws the exemption which would otherwise have been available to the manufacturer under item 7.
[519H 520B, E] (3) The language and structure of the third proviso being identical with the language and structure of the proviso under item 7 of the notification dated 5th January, 1957 the same view must govern the interpretation of the third proviso.
[521 E] 515 The third proviso on its proper interpretation, enacts a substantive provision for payment of excise duty at the next higher rate in the cases therein specified and this substantive provision overrides the second proviso which exempts a manufacturer employing not more than four powerlooms and working not more than one shift from payment of excise duty in those cases which do not fall within the third proviso and where a case, is covered by the third proviso the second proviso would be inapplicable and the manufacturer would be liable to pay excise duty at the next higher rate.
[522 A B]
|
Civil Appeal No. 1134 of 1974.
From the Judgment and Order dated 2 8 1973 of the Gujarat High Court in L.P.A. No. 255/71.
Appellant in person.
L. J. Nain and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by certificate granted under Article 133(1)(c) of the Constitution of India by the High Court of Gujarat is directed against its judgment dated 2 8 1973 and the sole point requiring decision therein is as to whether an order passed by the President of India under sub section (1) of section 29 of The Bombay Reorganization Act, 1960 (hereinafter referred to as the Act) and determining that the appellant shall on the 1st day of May 1960 cease to be a Judge of the High Court of Bombay and become a Judge of the High Court of Gujarat is to be regarded as an order of transfer under article 222(1) of the Constitution.
The appellant was appointed an Additional Judge of the High Court of Bombay on June 29, 1959.
After the Act came into force the President of India passed the said order (hereinafter referred to as the impugned order) under section 29(1) of the Act in respect of the appellant, who was still an Additional Judge of the High Court of Bombay (and 4 other Judges of that Court) so that with effect from the 1st of May 1960 the appellant became an Additional Judge of the High Court of Gujarat.
Claiming that the impugned order amounts to an order of transfer within the meaning of article 222(1) of the Constitution the appellant brought a petition under article 226 thereof with the prayer that the Governments of the Union of India and the State of Gujarat be directed to pay him an allowance to which, according to him, he had become entitled under article 222(2) of the Constitution with effect from October, 1963.
Another prayer was also made in the petition but therewith we are no longer concerned as the same was withdrawn at a later stage.
In order to appreciate the contention raised by the appellant before a learned Single Judge of the Gujarat High Court and again in the Letters Patent Appeal before the Division Bench which passed 615 the judgment now under appeal, it is necessary to set out the provisions of clause (1) of article 217 and those of article 222 of the Constitution: "217(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty two years: "Provided that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India." "222(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. "(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.
" According to the appellant 's contentions before the High Court the only source of power conferred on the President to effect the transfer of a Judge from one High Court to another was article 222 read with article 217(1)(c) and the impugned order which was an order flowing from that source of power, therefore amounted to an order of transfer even though it was passed under section 29(1) of the Act which runs thus: "(1).
Such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by President shall on that day cease to be Judges of the High Court at Bombay and become Judges of the High Court of Gujarat.
" 616 The High Court noted that the Act was passed in pursuance of the powers vested in Parliament under articles 3 and 4 of the Constitution.
Article 3 provides, inter alia, for the formation of new States.
Under clause (a) thereof Parliament may by law form a new State by separation of territory from any existing State or by uniting two or more existing States or parts thereof or by uniting any territory to a part of any State.
Under article 4(1) any law referred to in article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of such law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
Under clause (2) of article 4 no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368.
The learned Single Judge held that an order under section 29 of the Act was an order of "allocation" of Judges of the High Court of Bombay to the two new High Courts and that such allocation did not amount to a transfer within the meaning of article 217(1)(c) or 222(1) of the Constitution.
It was in that view of the matter that he dismissed the petition presented by the appellant.
In Letters Patent Appeal the Division Bench was of the opinion that although the impugned order amounted to an order of transfer, the transfer effected by it was of a type entirely different from that contemplated by article 222(1).
In effect, however, the reasons for dismissal of the appeal were the same as those for which the petition could not succeed before the learned Single Judge.
According to the Division Bench the transfer envisaged by article 222 was a transfer in a situation when a Judge of a High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court in consequence, while section 29 of the Act was part of the provisions which were supplemental, incidental or consequential to the formation of the State of Gujarat.
It was also argued before the Division Bench that the Government of Gujarat itself had, during the course of its correspondence with the appellant, treated his appointment to the High Court of Gujarat as a transfer from the High Court of Bombay, a fact which was not denied but which, the High Court held, had no bearing on the matter in dispute as there was no plea of estoppel raised in the petition presented by the appellant.
After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and, broadly 617 speaking, our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court, Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution.
The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it.
It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution.
The entitlement to compensatory allowance under article 222(2) is conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1).
Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance.
In the result the appeal fails and is dismissed but there will be no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | Exercising power under section 29(1) of the Bombay Reorganisation Act the President had determined that the appellant who then was an additional Judge of the Bombay High Court should cease to be a Judge of that High Court and become a Judge of the newly formed High Court of Gujarat.
In his petition under article 226 of the Constitution the appellant claimed that the source of power to transfer a Judge from one High Court to another being in article 222 read with article 217(1) (c) of the Constitution the impugned order though purporting to have been passed under section 29(1) of the Bombay Reorganisation Act, amounted to an order of transfer of a Judge and therefore, he was entitled to the compensatory allowance contemplated by article 222(2).
A single Judge of the High Court held that the order passed under section 29 was an order of allocation of Judges of the erstwhile High Court of Bombay to the two new High Courts and that such allocation did not amount to transfer.
On appeal a Division Bench held that the transfer envisaged by article 222 was a transfer in a situation when a Judge of one High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court while section 29 was part of the provisions which were supplemental, incidental or consequential to the formation of the State of Gujarat.
Dismissing the appeal ^ HELD: The entitlement to compensatory allowance under article 222(2) is conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1).
Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he was not entitled to claim the compensatory allowance.
[617 D] Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution.
The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and establishment of a High Court for it.
It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were so 614 to say allotted to the High Court of Gujarat and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, they cannot be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution.
[617 A C]
|
Civil Appeal No. 278 of 1972.
From the Judgment Order dated 29 6 1970 of the Gujarat High Court in SCA No. 46/68.
Appellant in person.
M. M. Abdul Khader, J. L. Jain and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This is an appeal by certificate granted by the High Court of Gujarat under article 133(1)(c) of the Constitution of India and is directed against its judgment dated 29th June 1970 dismissing a petition under article 226 of the Constitution in which the appellant, who began his career as a member of the Indian Civil and was ultimately appointed a High Court Judge, prayed for the issuance of appropriate writs to ensure that he was granted two pensions independently of each other, one in relation to his service as a High Court Judge and the other for the service rendered by him prior to his appointment as such.
The facts leading to the petition decided by the impugned judgment are not in dispute and may be shortly stated.
On the 6th October 1932 the appellant was appointed by the Secretary of State for India to the Indian Civil Service and was allotted to its Bombay 601 cadre.
On the 15th August 1947, he was serving as a District Judge in the Province of Bombay and thereafter continued in service in accordance with the provisions of section 10(2) of the Indian Independence Act, 1947 (hereinafter referred to as the 1947 Act) and article 314 of the Constitution.
He was appointed Additional Judge of the Bombay High Court on the 12th June 1959 and on bifurcation of the State of Bombay on the 1st May 1960 became an Additional Judge of the High Court of Gujarat wherein he was made a permanent Judge on the 5th April 1961 and continued to serve as such till 10th February 1969 on which date he submitted his resignation from and relinquished charge of his office Through a letter dated 28th May 1966 addressed to the Registrar of the High Court of Gujarat, the Accountant General, Gujarat requested the appellant to exercise his option in accordance with the proviso to section 15th of the high Court Judges (Conditions of Service) Act, 1954 (hereinafter called the 1954 Act) and to intimate whether he would receive his pension under Part I or Part II of the First Schedule to that Act.
The stand taken by the appellant was that he was not bound to exercise any option and that pension in relation to his service as a High Court Judge was payable to him under section 14 of the 1954 Act read with Part I of the said First Schedule.
The Government of India not having agreed with the stand taken by the appellant, he moved the High Court as stated above and in his petition challenged the validity of the second proviso to section 14 of the 1954 Act as also of clause (a) of section 15 thereof read with Part II of the said First Schedule.
The relevant provisions of law may with advantage be noticed here.
Prior to 1947 a High Court Judge was entitled to pension in accordance with paragraphs 17, 18 and 19 of the Government of India (High Court Judges) order, 1937 (for short the 1937 order) promulgated by His Majesty in Council under the provisions of section 221 of the Government of India Act, 1935.
Those paragraphs classified High Court Judges for purposes of pension into three categories according as (1) they were members of the Indian Civil Service, (2) members of services other than Indian Civil Service or (3) were not drawn from any of the civil services, and provided a different scale of pension for each category.
By virtue of section 10(2) of the 1947 Act, the 1937 order continued to be in force right up to the commencement of the Constitution, article 221(2) of which provided, inter alia: "Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from 602 time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule.
" Sub paragraphs (1) & (4) of paragraph 10 of Part D of the Second Schedule to the Constitution provided: "(1) There shall be paid to the Judges of the High Court of each State specified in Part A of the First Schedule, in respect of time spent on actual service, salary at the following rates per mensem, that is to say: The Chief Justice 4,000 rupees Any other Judge 3,500 rupees" "(4) The rights in respect of leave of absence (including leave allowances) and pension of the Judges of the High Court of any State shall be governed by the provisions which immediately before the commencement of this Constitution, were applicable to the Judges of the High Court in the corresponding Province." The provisions relating to pension contained in the 1937 Order thus continued to apply to High Court Judges till the 20th May 1954 when the 1954 Act came into force, after having been enacted by Parliament in exercise of its legislative power under article 221(2) of the Constitution.
Section 14 of the 1954 Act then stood as follows; "Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule: "Provided that no such pension shall be payable to a Judge unless (a) he has completed not less than twelve years of service for pension; or (b) he has attained the age of sixty two years, and in the case of a Judge holding office on the 5th day of October, 1963, sixty years; or (c) his retirement is medically certified to be necessitated by ill health.
" The following proviso was added to sub paragraph (1) of paragraph 10 of Part D of the Second Schedule to the Constitution by the Constitution (Seventh Amendment) Act, 1956 (the 1956 Act, for brevity) with effect from the 1st November, 1956: "Provided that if a Judge of a High Court at the time of his appointment is in receipt of a pension (other than a disability 603 or wound pension) in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments, his salary in respect of service in the High Court shall be reduced (a) by the amount of that pension, and (b) if he has, before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof, by the amount of that portion of the pension, and (c) if he has, before such appointment, received a retirement gratuity in respect of such previous service, by the pension equivalent of that gratuity.
" The 1956 Act also deleted sub paragraph (4) above extracted.
A second proviso was added to section 14 of the 1954 Act by section 6 of the High Court Judges (Conditions of Service) Amendment Act, 1958 (for short the 1958 Act) with effect from the 1st November, 1956 and stated: "Provided further that if a Judge at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service in the Union or a State, the pension payable under this Act shall be in lieu of, and not in addition to, that pension.
" Section 15 of and the relevant portions of Parts I, II and III of the First Schedule to the 1954 Act as amended by the 1958 Act with effect from the 1st November, 1956, may also be set out in extenso: "15.
Every Judge (a) who is a member of the Indian Civil Service shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part II of the First Schedule; (b) who is not a member of the Indian Civil Service but has held any other pensionable Civil Post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule: "Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the First Schedule or, as the case may be, Part II or Part III of the First Schedule, and the pension payable to him shall be calculated accordingly." 604 "THE FIRST SCHEDULE "PENSION OF JUDGES "PART I "1.
The provisions of this Part apply to a Judge who is not a member of the Indian Civil Service or has not held any other pensionable civil post under the Union or a State and also apply to a Judge who, being a member of the Indian Civil Service or having held any other pensionable civil post under the Union or a State, has elected to receive the pension payable under this Part.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in paragraph 3 increased by the additional pension, if any, to which he is entitled under paragraph 5.
The basic pension to which such a Judge shall be entitled shall be (a) for the first seven completed years of service for pension, Rs. 5000 per annum; and (b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum: "Provided that the basic pension shall in no case exceed Rs. 10,000 per annum.
For the purpose of calculating additional pensions, service as a Judge shall be classified as follows: "Grade I. Service as Chief Justice in any High Court; "Grade II.Service as any other Judge in any High Court.
For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be entitled to the additional pension specified in relation to that grade in the second column of the table annexed hereto: "Provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year.
605 "TABLE "Service Additional pension Maximum aggregate per annum pension per annum.
Rs. Rs. "Grade I. 740 20,000 "Grade II.
470 16,000" "PART II "1.
The provisions of this Part apply to a Judge who is a member of the Indian Civil Service and who has not elected to receive the pension payable under Part I. "2.
The pension payable to such a Judge shall be (a) the pension to which he is entitled under the ordinary rules of the Indian Civil Service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) the additional pension, if any, to which he is entitled under paragraph 3.
If such a Judge has completed not less than seven years of service for pension in a High Court, he shall be entitled to an additional pension in accordance with the following scale: Per annum Rs. "For seven completed years of service for pension 1,333 For eight completed years of service for pension 1,600 For nine completed years of service for pension 1,866 For ten completed years of service for pension 2,133 For eleven completed years of service for pension 2,400 For twelve or more completed years of service for pension 2,666" 606 "PART III "1.
The provisions of this Part apply to a Judge who has held any civil pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I. "2.
The pension payable to such a Judge shall be (a) The pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension of Rs. 500 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service, shall exceed Rs. 2500 per annum.
The contentions raised on behalf of the appellant before the High Court were: A.
The second proviso to section 14 of the 1954 Act is violative of articles 221, 314 and 14 of the Constitution and is, therefore, void.
The appellant is accordingly entitled to elect for pension under Part I of the First Schedule to that Act without being required to forego the benefit of the pension earned by him prior to his elevation to the Bench.
B. Clause (a) of section 15 of the 1954 Act is applicable only to a Judge who is a member of the Indian Civil Service.
That Service, however, came to an end on the 15th of August, 1947 whereafter there was no Judge who could be said to be a member of that Service.
The clause has, therefore, no application to any situation prevailing after the said date.
C. Clause (a) of section 15 of the 1954 Act read with Part II of the First Schedule thereto is violative of article 14 of the Constitution so that in case the second proviso to section 14 of the 1954 Act is held to be good, the appellant would be entitled to pension under clause (b) of section 15 of that Act read with Part III of the said Schedule. 5.
In regard to contention A the High Court held that the appellant having accepted appointment as a High Court Judge in Continuation of his service as a District Judge, he never became entitled to pension for the period preceding his elevation to the Bench 607 so that the second proviso to section 14 of the 1954 Act never became applicable to him and the validity or otherwise of that proviso was irrelevant for the determination of his claim.
Contention B was negatived by the High Court on the ground that the expression "who is a member of the Indian Civil Service" appearing in clause (a) of section 15 of the 1954 Act had to be given some meaning in spite of the fact that the Indian Civil Service had ceased to be alive as such after August 15, 1947 and that the only reasonable way of interpreting the expression was to hold that it meant a person who had been a member of the Indian Civil Service immediately before August 15, 1947.
The conclusions arrived at by the High Court as a result of the consideration it gave to ground C may be summarised thus: (a) Under the Civil Service Regulations read with the 1937 Order a member of the Indian Civil Service who was promoted from the post of a District Judge to that of a High Court Judge was not entitled to pension for the period prior to his elevation to the Bench.
His right to pension accrued only when he relinquished the office of High Court Judge.
This position continued to obtain till the enforcement of the Constitution by reason of section 10(2) of the 1947 Act and after such enforcement by reason of the provisions of the Constitution, namely, articles 314 and 221(2) read with sub paragraph (4) of paragraph 10 of Part D of the Second Schedule as that sub paragraph stood prior to its deletion by the 1956 Act.
Thus the Constitution itself through its provisions just above mentioned provided that High Court Judges who had earlier been members of the Indian Civil Service would get pension according to the formula contained in the 1937 Order which was a formula different from the one applicable to High Court Judges who had not been members of any of the civil services.
(b) The 1954 Act preserved the trichotomy envisaged by the 1937 Order but made an additional provision that if a High Court Judge who had earlier been a member of the Indian Civil Service felt that it would be more beneficial to him to receive pension on the basis of the provisions set out in section 14 of the 1954 Act read with Part I of the First Schedule thereto he could elect to do so.
This additional provision was obviously introduced for the benefit of the erstwhile members of that Service.
608 (c) The Constitution itself put its seal on the trichotomy above detailed through articles 314 and 221(2) read with paragraph 10 of Part D of the Second Schedule and the differentiation made by the Constitution itself cannot be attacked as discriminatory when it was adopted by Parliament in the 1954 Act.
(d) The basis of calculating pension in clause (a) of section 15 of the Act read with Part II of the First Schedule thereto on the one hand and clause (b) of section 15 of that Act read with Part III of the said Schedule on the other, is continuity of service.
Service rendered by a person as High Court Judge is tagged on with any earlier service for the purpose of computation of basic pension; for, otherwise High Court Judges who had earlier been members of civil services would be deprived of the pensionary benefit in respect of their service rendered as such members.
This was the reason for the trichotomy which was adopted not only by the 1937 Order but also by the 1947 Act and later on by the Constitution as well as the 1954 Act for the benefit of such Judges.
The differentiation is not only not irrational but is eminently desirable and is based on rational criteria.
It was in the above premises that the High Court did not find any substance in the petition dismissed by the impugned order.
All the contentions raised before the High Court have been reiterated before us but after hearing the appellant in person at length we see no reason at all to differ from the conclusions reached by the High Court.
We may first take up contention B which need not detain us long.
It is a cardinal principle of interpretation of statutes that the legislature does not use meaningless language and that every word used by it must be presumed to have some meaning even though the phraseology employed may some times be obscure or ambiguous.
The expression "who is a member of the Indian Civil Service" appearing in clause (a) of section 15 of the 1954 Act cannot be just ignored as being inapplicable to an existing situation and thus rendered otiose.
As pointed out by the High Court what was meant was to describe as a class High Court Judges who had earlier been members of the Indian Civil Service so that they could be distinguished from High Court Judges who had not been such members.
In this connection it is noteworthy that although the Indian Civil Service ceased to function as a Service of the Secretary of State for India after the 15th of August 1947 when the 1947 Act was enforced, its members were automatically appointed to corresponding posts under the Crown in 609 connection with the affairs of the Dominion of India or of a Province by virtue of the provisions of sub clause (1) of clause 7 of the India (Provisional Constitution) Order, 1947.
That sub clause runs thus: "7.
(1) Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or Governor General in Council or of a Province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province." The Indian Civil Service was not abolished in so many words and, on the other hand, its members were given the right to continue in service on and after the 15th August, 1947 under the same conditions of service as were applicable to them immediately before that date.
This is clearly made out by sub sections (1) and (2) of section 10 of the 1947 Act which are reproduced below: "(1) The provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts. "(2) Every person who (a) having been appointed by the Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; or (b) having been appointed by His Majesty before the appointed day to be a Judge of the Federal Court or of any Court which is a High Court within the meaning of the Government of India Act, 1935, continues on and after the appointed day to serve as a Judge in either of the new Dominions: shall be entitled to receive from the Government of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time a Judge, the same conditions of service as respects remuneration, leave and pension, and the same rights 610 as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day.
" All that sub section (1) enacted was that the provisions of the Government of India Act, 1935 ceased to operate in relation to appointments to the civil services of, and civil posts under, the Crown in India, by the Secretary of State but sub section (2) fully preserved the rights of and conditions of service applicable to holders of appointments already made by the Secretary of State, the only difference being that in place of the Secretary of State the employers of the incumbents became the respective Governments concerned.
In this situation it would not be correct to say that the expression who is a member of the Indian Civil Service" would be meaningless and wholly inapplicable to any existing situation after the 15th August 1947; and when an Act of Parliament uses that expression surely it must be given the meaning that the High Court says it has, i.e., that it denotes persons who were members of the Indian Civil Service prior to the enforcement of the 1947 Act and were elevated to the Bench thereafter.
The other contentions raised by the appellant ignore one basic reason which provides justification for the trichotomy operating right from the enforcement of the 1937 Order.
He does not (and of course cannot) challenge that trichotomy for the period prior to the commencement of the Constitution because his objection to it is based on discrimination violative of article 14 thereof.
But then he has failed to realise what the Constitution itself enacted in paragraph 10 of its Second Schedule both before and after its amendment by the 1956 Act.
Prior to the 1st November 1956 (which is the date on which the 1956 Act came into force) sub paragraph (4) of the said paragraph 10 provided for pension of Judges of the High Court of any State being governed by the provisions which were applicable to such Judges before the commencement of the Constitution.
Those provisions were, as pointed out above, contained in the 1937 Order which initiated the trichotomy.
The High Court was thus right in holding that the Constitution itself adopted that trichotomy.
Then came the 1954 Act which was brought on the statute book by Parliament in exercise of its legislative powers under article 221(2) of the Constitution.
The trichotomy introduced by the 1937 Order was repeated in the 1954 Act, till when it had been kept alive by sub paragraph (4) above mentioned.
And that trichotomy is good not only because it was adopted by the Constitution till legislation 611 was enacted under article 221(2) thereof but also because it was necessitated by reason of High Court Judges being drawn from three different sources.
In so far as persons who had been members of the Indian Civil Service or of a State Judicial Service before being appointed as High Court Judges are concerned, the period of service put in by them in such Service has to be taken into account.
On the other hand, High Court Judges recruited directly from the Bar do not have any prior service to their credit.
All the High Court Judges, though holding equivalent posts, are thus not similarly situated, particularly in regard to the payment of pension and other retirement benefits.
That is why different provisions were considered necessary in the case of each of the three categories in regard to payment of pension.
The classification so made is a reasonable classification based on intelligible differentia having a proper nexus to the object to be achieved.
The matter may be viewed from another angle.
According to the proviso added to sub paragraph (1) of the said paragraph 10 by the 1956 Act (which proviso we have set out above), the salary of a High Court Judge who "is in receipt of a pension. . in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments,. . . . . . shall be reduced by the amount of that pension. . . . . " That proviso would have fully applied to the case of the appellant if he had actually been in receipt of a pension prior to his elevation to the Bench.
That he was not in receipt of any such pension is, however, admitted on all hands and, therefore, as held by the High Court, the second proviso to section 14 of the 1954 Act has no application to him.
But then his argument is that he should be deemed to have been in receipt of a pension according to his entitlement immediately before he took oath as a High Court Judge.
Even if we assume this argument to be correct, his case would not improve in any manner; for, then his salary as a High Court Judge would automatically come down to less than Rs. 3500 which is the salary payable to Judges who have not been members of any of the civil services earlier, and the difference would not be merely marginal.
It is the case of the appellant that if he had retired from the Indian Civil Service immediately prior to the 12th June 1959 when he was elevated to the Bench he would have been entitled to receive a pension of Rs. 13350 per annum or about Rs. 1111 per mensem.
On his elevation to the Bench he would in that case be entitled to a salary of less than Rs. 2400 as compared to Rs. 3500 payable to other High Court Judges who had not belonged to any civil services earlier.
This difference in salary being substantial 612 is itself a good reason for treating the appellant and other High Court Judges similarly situated in a manner different from High Court Judges not so situated and the same reasoning would apply to High Court Judges who had earlier been members of civil services other than the Indian Civil Service.
It is of course not the case of the appellant that the proviso to sub paragraph (1) of paragraph 10 above mentioned is itself not enforceable for one reason or the other; and if that be so, the trichotomy of which he complains becomes fully justifiable.
We may make it clear, however, that the appellant 's plea that he must be held entitled to a separate pension for his service immediately preceding his elevation to the Bench cannot be accepted as correct in the face of the finding by the High Court that he was entitled to pension only after his retirement and, therefore, after his service as a High Court Judge came to an end, and that too according to the 1937 Order.
The appellant has failed to show how that finding is erroneous.
In this connection it may be stated that it was only after the Accountant General had requested him to indicate his option in accordance with the proviso to section 15 of the 1954 Act that he claimed two pensions, one in respect of the period prior to his elevation to the Bench and one for that for which he was a High Court Judge.
At no time prior to that had he claimed any pension for his service as a member of the Indian Civil Service or any of the other civil services.
The trichotomy originating with the 1937 Order and finally adopted by the 1954 Act having been found by us not to suffer from any legal or constitutional infirmity and, on the other hand, to have the sanction of the Constitution itself, none of the three articles thereof,namely, 14, 221 & 314 on which the appellant banks, comes to his rescue.
His claim is accordingly held to be without force and the appeal is dismissed but with no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | Dismissing the appeal by certificate, the Court ^ HELD: (1) The trichotomy originating with the Government of India (High Court Judges) Order, 1937, continued under section 10(2) of the Independence Act, 1947 and finally adopted by the does not suffer from any legal or constitutional infirmity and, on the other hand, has the sanction of the Constitution itself.
[612 F] (2) The trichotomy is good not only because it was adopted by the Constitution till legislation was enacted under Article 221(2) thereof, but also because it was necessitated by reason of High Court Judges being drawn from three different sources, namely, Indian Civil Service, State Judicial Services and directly from the Bar.
All the High Court Judges though holding equivalent posts are thus not similarly situated, particularly in regard to the payment of pension and other retirement benefits.
The classification so made is a reasonable classification based on intelligible differentia having a proper nexus to the object to be achieved and there is thus no question of any violation of Articles 14, 221 and 314 of the Constitution.
[610 H 611 A, C; 612F] (3) It is a cardinal principle of interpretation of statutes that the legislature does not use meaningless language and that every word used by it must be presumed to have some meaning even though the phraseology employed may sometimes be obscure or ambiguous.
[608 F] The expression "who is a member of the Indian Civil Service" appearing in clause (a) of section 15 of the 1954 Act cannot be just ignored as being inapplicable to an existing situation and thus rendered otiose.
What was meant was to describe as a class High Court Judges who had earlier been members of the Indian Civil Service so that they could be distinguished from High Court Judges who had not been such members.
Although the Indian Civil Service ceased to function as a Service of the Secretary of State for India after the 15th of August 1947 when the 1947 Act was enforced, its members were automatically appointed to corresponding posts under the Crown in connection with the affairs of the Dominion of India or of a Province by virtue of the provisions of sub clause (1) of clause 7 of the India (Provisional Constitution) Order, 600 1947.
The Indian Civil Service was not abolished in so many words and on the other hand, its members were given the right to continue in service on and after the 15th August, 1947 under the same conditions of service as were applicable to them immediately before that date as made out by sub sections (1) and (2) of section 10 of the 1947 Act.
[608 G 609A, C D] All that sub section (1) enacted was that the provisions of the Government of India Act, 1935 ceased to operate in relation to appointments to the civil services of, and civil posts under, the Crown in India, by the Secretary of State but sub section (2) fully preserved the rights of and conditions of service applicable to holders of appointments already made by the Secretary of State, the only difference being that in place of the Secretary of State the employers of the incumbents became the respective Governments concerned.
[610 B C] (4) The second proviso to section 14 of the 1954 Act has no application to the appellant inasmuch as he was not in actual receipt of a pension for his services in the Indian Civil Service under proviso to para 10 of Part D of second Schedule to the Constitution as added by the Constitution (Seventh Amendment) Act, 1956.
The appellant having accepted appointment as a High Court Judge in continuation of his service as a District Judge, he never became entitled to pension for the period preceding his elevation to the Bench.
Further he did not claim such a pension until the Accountant General requested him to indicate his option in accordance with the proviso to section 15 of the 1954 Act.
The claim to two pensions, therefore, is inadmissible.
[611E, H, 612D]
|
ivil Appeal Nos.
301 303 of 1970.
From the Judgment and Order dated 17 11 1967 of the Andhra Pradesh High Court in Writ Petition Nos. 138/63, 1256/63 and 1460/63.
A.V.V. Nair for the Appellant.
K. Rajendra Chowdhary for the Respondent.
628 The Judgment of the Court was delivered by KRISHNA IYER, J.
We are in complete agreement with the reasoning and conclusions of the High Court and a brief statement of the short point that arises for decision and of the grounds for dismissing the appeal is all that is needed.
The Motor Vehicles (Taxation of Passengers and Goods) Act passed by the Madras legislature in the composite Madras State was made applicable to Andhra Pradesh when that State was carved out.
There were certain difficulties in the matter of levy of taxation on vehicles plying on inter state routes and the State of Andhra Pradesh thought it fit to enact its own legislation, which it did in the form of the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, Section 4(2) whereof empowered the State Government to make necessary rules to effectuate the enactment.
Pursuant to this power, certain rules were framed, of which rule 1 consisted of three sub rules.
On 19 6 1957 sub rules (4) and (5) were added to that rule and sub rule (5) ran thus: "The proviso to sub rule 1 of Rule 1 shall cease to be operative on and from 1st October, 1955 and the composition fee calculated with reference to clause (a) or clause (b) of sub rule (1) in respect of vehicle plying on inter State routes lying partly in Madras State and partly in the Andhra State shall, with effect from that date be paid in the State where the vehicles are registered and normally kept." This sub rule enabled operators of Motor Vehicles on inter state routes lying partly in the Madras State and partly in the State of Andhra Pradesh to pay the tax duly to either of these two States.
It was, however, deleted along with sub rules (3) and (4) on 29th March, 1963 with effect from 1st April, 1962 and it is the retrospectivity of the deletion that is challenged before us because the Andhra Pradesh State sought to collect tax for the period commencing 1st April, 1962 from the respondent under the Act above referred to, although he had already paid the same to the State of Madras.
The ground of invalidity was stated to be that section 4(1) did not confer on the State Government power to make rules with retrospective effect.
Thus, the only question which engages our attention is as to whether section 4(2) does confer on the delegate, namely, the State Government, the power to make retrospective rules.
The High Court, after an elaborate discussion on the jurisprudence of subordinate legislation, came to the conclusion that no such power was conferred on the State Government and that consequently the deletion which resulted in retrospective operation of the liability to payment of tax was bad in law.
629 The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations.
But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication.
In the present case the power under section 4(2) does not indicate either alternative.
The position has been considered by the High Court at length and there is no need for us to go through the exercise over again.
Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances.
He argued that the impugned rule was framed in pursuance of a dissolution passed by the legislature.
The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rules.
The second ground pressed before us by learned counsel for the appellant is that the rules had to be placed on the table of and approved by the legislature.
This was sufficient indication, in his submission, for us to infer that retrospectively in the rule making power was implicit.
We cannot agree.
The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules.
The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand vs Union of India,(1) Mr. Justice Khanna speaking for the Bench observed: "The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act.
It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statutes Law that there are three kinds of laying: (i) Laying without further procedure: (ii) Laying subject to negative resolution: (iii) Laying subject to affirmative resolution.
The laying referred to in sub section (3) of Section 40 is of the second category because the above sub section contemplates that the rules would have effect unless modified or annulled by 630 the House of Parliament.
The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government.
" It is, therefore, plain that the authority of the State Government under the delegation does not empower it to make retrospective rules.
With this position clarified there is no surviving submission for appellant 's counsel.
The appeal must be dismissed and we do so with costs (one set).
| IN-Abs | Dismissing the special leave petition, the Court ^ HELD: (1) The legislature has no doubt plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the constitutional limitations.
But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication.
In the present case the power under Section 4(2) does not indicate either alternative.
Therefore the authority of the State Government under the delegation does not empower it to make retrospective rules.
[629 A B; 630 B] (2) The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules.
The whole purpose of laying on the table of the legislature the rules framed by the State Government is different.
[629E] Hukum Chand vs Union of India, ; (902), followed.
Observation: The State Government should have been more careful in giving effect to the resolution passed by the legislature and should not have relied upon its delegated powers which did not carry with it the powers to make retrospective rules.
[629C]
|
Appeal No. 249 of 1953.
On appeal from the judgment and decree dated the 1st day of September, 1949, of the Bombay High Court in Appeal No. 23 of 1947 from original decree arising out of the decree dated the 28th September 1946 of the Civil Judge, Session Division at Belgawn in Suit No. 360 of 1945.
K.R. Beneri, J. B. Dadachanji and Sri Narain Andley for A. C. Dave for the appellants.
H.B. Datar and Naunit Lal for respondent No. 1.
676 1956.
September 20.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by leave of the High Court of Judicature at Bombay from the decision of a Division Bench of that Court reversing that of the trial court in respect of items 3, 4 and 6 in the list of the properties attached to the plaint as the subject matter of the dispute.
In respect of the other items of property in dispute the courts below have given concurrent decisions and that part of their judgments is no more in controversy at this stage.
The three items aforesaid of the property along with the others in dispute had been decreed in favour 'of the original plaintiffs 2 and 3 as Watan property.
But on appeal by the third defendant, the High Court reversed the decision of the trial court only in respect of those three items and confirmed the decision of the trial court in respect of the rest of the plaint properties.
The propositus was one Shreemant who died on the 23rd November, 1941 leaving him surviving his wife Radhabai.
Radhabai died on the 9th May 1945 and on her death the dispute arose between the reversioners on the one hand including the plaintiffs 2 and 3, appellants in this Court, and the defendants on the other who claimed by virtue of alleged adoptions said to have been made by Radhabai aforesaid.
The first plaintiff is out of the picture now on the concurrent finding by the courts below that he had no right to the state left by the propositus by virtue of the adoption found in his favour, inasmuch as before he was adopted the estate had already vested in the actual reversioners, plaintiffs 2 and 3, the agnatic relations of Shreemant.
The estate of Shreemant, so far as it related to Watan lands, vested in plaintiffs 2 and 3 aforesaid under the provisions of Bombay Act v of 1886.
If either defendant 2 or defendant 3 bad proved his alleged adoption by Radhabai aforesaid, he would have been entitled to the estate as the adopted son of the propositus, thus excluding the agnatic relations, namely, plaintiffs 2 and 3.
But both the courts below have concurrently found that 677 neither of the two defendants 2 and 3 had succeeded in proving the adoption respectively pleaded by them.
The trial court had substantially decreed the suit in respect of all the items of property in dispute including the three items which, as indicated above, are the only properties now in controversy in this Court, on the finding that these also were Watan properties which like the rest of the plaint properties were inherited by the reversioners aforesaid, namely, plaintiffs 2 and 3., The High Court on appeal held that the three items of property now in dispute, though originally Watan properties, had lost their character as such by reason of the fact that they had been resumed by Government after dispensing with the service and after levying full assessment on those lands.
Those lands have been called "Japti Sanadi Inam lands" in the records of the courts below and it is by that name that we.
shall refer to the disputed lands in the course of this judgment.
It would thus appear that the controversy has narrowed down to the question whether the Japti Sanadi Inam lands still retain their character as Watan lands as held by the trial court, or have lost their character as such in view of the events that had happened as decided by the High Court.
It is not disputed that in the former case the plaintiff appellants will be entitled to them also even as they gave been adjudged to be entitled to the rest of the properties in dispute which were admittedly Watan lands.
It is equally undisputed that, if the Japti Sanadi Inam lands are no more Watan lands, this appeal must fail.
On this question both the courts below have been rather cryptic in their remarks.
The trial court held them to be Watan lands, with the following observations: "The lands at serial Nos. 3, 4 and 6 are Japti Sanadi lands.
They still retain the character of Sanadi lands inspite of the fact that services have been temporarily dispensed with and full assessment levied.
Sanadi lands have been held to be Watan lands governed by the Watan Act".
The trial court has made no attempt to support its conclusions with reference to any statutory rules or 678 precedents.
The lower appellate court has disposed of this question in these words: "Now it is conceded before us that there is no evidence to support the observation made by the learned trial Judge, that the services were temporarily dispensed with by the government.
If therefore,the Record of Rights show that the full assessment is being levied in respect of these lands, and that services are not required to be performed and they are described as Japti Sanadi Inam lands, meaning thereby that they were once Sanadi lands, but in respect of which there has been resumption by the Government, the conclusion must inevitably follow that these lands have ceased to be lands held on Sanadi tenure and are held in ordinary occupancy rights".
The learned counsel for the appellants has vehemently argued that the High Court was in error in concluding that the lands in question had ceased to be Watan lands simply because the service attaching to them had been dispensed with and full assessment levied by Government.
This argument was based on the provisions of the Bombay Hereditary Offices Act (Bombay Act III), 1874.
Apart from authority, therefore, we have to examine the relevant provisions of that Act in order to determine whether those provisions support the conclusions of the High Court.
In section 4, "Watan property", "Hereditary office" and "Watan" have been defined as follows: "Watan Property means movable or immovable property held, acquired or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office.
It includes a right to levy customary fees or perquisites, in money or in kind, whether at fixed times or otherwise.
It includes cash payments in addition to the original watan property made voluntarily by Government and subject periodically to modification or withdrawal. 'Hereditary office ' means every office held hereditarily for the performance of duties connected with the administration or collection of the public revenue, or with the village police, or with the settlement of boundaries, or other matters of civil administration, 679 The expression includes such office even where the services originally appertaining to it have ceased to be demanded.
The watan property, if any, and the hereditary office and the rights and privileges attached to them together constitute the watan".
From these definitions it is clear that in order that there may be a Watan it is necessary that there should be a hereditary office and Watan property which is assigned to the "Watandar" by way of remuneration for the performance of the duty appertaining to his office.
But it has been argued on behalf of the appellants that it is common ground, that the Sanadi Inam lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character.
No precedent or statutory provisions directly supporting this wide proposition have been brought to our notice.
But our attention was called to the provisions of section 15 which make it permissible for the Collector to commute the service and relieve the bolder of the Watan and his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreed upon.
If we have been able correctly to appreciate the argument based upon section 15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted, but even after the commutation of the service the Watan remained and the lands continued to retain the character of Watan lands.
This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued.
That is begging the question.
Furthermore, clause (1) of section 15 contemplates commutation "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such bolder".
Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of 680 so many varieties that in some cases the Watan character of the land may be maintained, whereas in others the conditions agreed between the parties may themselves contemplate the cessation of that character.
In the present case, apart from the entries in the Record of Rights, we have no other evidence to indicate as to on what terms the service bad been completely dispensed with in perpetuity and the full assessment levied upon those lands.
, It is not therefore clear upon the findings of the courts below that there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure.
It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure in spite of the fact that the holders have been excused the performance of the customary service.
On the other hand, it may be that there were no conditions agreed between the parties continuing the Watan character of the land after dispensing with the service.
On the findings of the courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did not arise.
On the other hand, the provisions of section 22 of the Act clearly predicate that a Watan may lapse in part or in whole or may be confiscated or otherwise lawfully resumed by Government and that in such cases it is lawful for Government to attach such land to a newly created Watan in favour of such persons as may be appointed by Government.
That being so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watan land.
Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenue assess 681 ment.
That is what appears to have happened in the present case.
The very description of the land as Japti Sanadi Inam land would mean that which was once the subject matter of an inam grant by virtue of a sanad has been resumed or confiscated by Government and the land left in possession of the holder as ryotwari holding.
As pointed out by the courts below, there is no evidence as to the original character of the grant or as to how and when the grant was resumed and the land thus became subject to ordinary occupancy rights.
But they have proceeded on the basis that it was the subject matter of a Watan by sanad which has been subsequently resumed by Government as service was no more required and the necessity for the grant was no more there.
They have only differed on the legal result of the resumption.
A similar question arose for decision in the Bombay High Court in the case of Ramijyabi Muktum Saheb vs Gudusaheb(1) after the present case had been decided by that Court.
In that case property which was originally Watan was continued with the holder thereof but without the obligation to render any service and with the full levy of assessment in respect of the land.
The question arose whether such land continued to be Watan land with its special incidents as regards alienation, etc., or whether it was ordinary occupancy holding.
A single Judge of that Court who heard the appeal in the first instance came to the conclusion that the land continued to be Watan land.
On Letters Patent Appeal, the Division Bench after a very elaborate examination of the relevant rules and precedents came to the contrary conclusion and held that the land had ceased to have the character of Watan and was subject to the ordinary law of land tenures in that State.
We are in agreement with the conclusion reached by the Letters Patent Bench in that case, the facts of which were similar to those of the present case.
Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants.
The appeal is accordingly dismissed with costs.
| IN-Abs | Certain lands which were originally Watan lands were resumed by the Government after dispensing with the services that were being rendered and full assessment was levied thereon.
Thelands were subsequently described as "Japti Sanadi Inam" lands.
Held, that the lands had lost their character as Watan lands and had become ryotwari lands of the holder.
Ramijyabi Muktum Saheb vs Gudusaheb, , approved.
The very description of the lands as Japti Sanadi Inam lands means that the lands were once the subject matter of an Inam grant by virtue of a Sanad and have been resumed or confiscated by the Government and have been left in the hands of the holder as ryotwari holding.
The Government may commute the services to be rendered and it will then depend on the terms of the agreement between the holder of the Watan lands and the Government entered into at the time of the commutation whether the lands are to retain their character as Watan lands or not.
|
Civil Appeal No. 112 of 1975.
Appeal by Special Leave from the Judgment and Order dated 3 10 1974 of the Andhra Pradesh High Court in Criminal Appeal Nos. 57 and 325/72.
P. Rama Reddy, G. section Rao and G. N. Rao for the Appellant.
A. N. Mulla and G. Narisimhalu for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal preferred by the State of Andhra Pradesh is directed against a judgment of the Andhra Pradesh High Court by which a learned Judge of that Court exercising jurisdiction under section 429 of the Code of Criminal Procedure, 1898 set aside the order of conviction and the sentences passed on the respondents before us by the Sessions Judge, Chittoor Division.
The charge against the respondents was that at about ten on the night of September 5, 1971 Venkataramaiah Chetty and Chakala Giddappa (P.W. 1) were returning to their village Sanganapalle from Kadepalle where they had gone and when they were about a mile from Sanganapalle, respondent No. 1 armed with a bill hook and respondent No. 2 with a stout stick attacked them and beat Venkataramaiah Chetty severely causing multiple injuries as a result of which he died.
The Sessions Judge accepted the evidence of P.W. 1 and the dying declaration said to have been made by Venkataramaiah Chetty in the presence of several witnesses including P.W. 1 and convicted the respondents under section 302 read with section 34 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life.
On appeal preferred by the accused a Division Bench of the High Court rejected the dying declaration but accepted the evidence of P.W. 1 to find that the accused caused the injuries to which Venkataramaiah Chetty succumbed; the learned Judges composing the Division Bench however differed on the nature of the offence that was committed by the accused in causing these injuries.
Madhava Reddy J. held that having regard to the nature of the injuries it was not possible to find that the accused intended to cause death and that the offence committed by the accused was culpable homicide not amounting to murder punishable under section 582 304 Part I of the Indian Penal Code.
Sriramulu J. was of the opinion that in causing the injuries the accused had the common intention to kill Venkataramaiah Chetty.
He also observed that even assuming the offence did not fall under clause "Firstly" of section 302 of the Indian Penal Code, it undoubtedly fell under clause "Thirdly" of that section and on this view reached the conclusion that the Sessions Judge was justified in convicting the accused persons under section 302 read with section 34 of the Indian Penal Code.
The case was then referred to a third Judge, Ramchandra Raju J., under section 429 of the Code of Criminal Procedure, 1898.
Raju J. found on a consideration of the evidence that "there does not appear to be any motive, much less sufficient motive, for the accused to commit the offence".
The immediate motive for the offence according to the prosecution was an incident said to have taken place on September 1, 1971, four days prior to the date of occurrence, when P.W. 5, a son of the deceased, was beaten by the accused when cattle of the deceased strayed into the field of the first respondent.
According to Raju J. what happened on September 1, was a trivial incident, P.W. 5 did not sustain any injury, he did not report the matter to anyone and even when the deceased came and intervened there was no quarrel, the accused did not try to assault the deceased nor the deceased tried to beat the accused.
Pointing out certain infirmities in the evidence of the sole eye witness P.W. 1, Raju J. found that his evidence was "doubtful and suspicious".
P.W. 7 who sought to corroborate a part of the evidence of P.W. 1, according to Raju J. did not "inspire much confidence".
Raju J. did not think it "safe to find the accused guilty by placing absolute reliance on the evidence of P.W. 1 and accordingly he acquitted both the accused.
Before us Mr. P. Rama Reddy for the State of Andhra Pradesh contends that it was not open to the third Judge to upset the concurrent finding of both the learned Judges composing the Division Bench that the accused were guilty of some offence; it is argued that as the difference between the two Judges of the Division Bench was confined to the nature of the offence only, the third Judge to whom the case was referred under section 429 of the Code of Criminal Procedure had no power to acquit the accused.
Section 429 of the Code of Criminal Procedure, 1898 reads: "When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion." 583 In support of his contention Mr. Rama Reddy relies on the judgment of this Court in Bhagat Ram vs State of Rajasthan.(1) This was a decision by a Bench of two Judges.
In that case Bhagat Ram, an Inspector of Police, was charged with having committed offences under sections 120B, 161, 218, 347 and 389 of the Indian Penal Code and also under section 5(1)(a) read with section 5(2) of the Prevention of Corruption Act.
Another accused, Ram Swaroop, who was tried along with Bhagat Ram was charged with having committed offences under sections 120B and 165A of the Indian Penal Code.
The trial court acquitted both Bhagat Ram and Ram Swaroop of all the charges framed against them.
The appeal preferred by the State of Rajasthan against the acquittal was heard by a Division Bench composed of Tyagi and Lodha JJ.
The Division Bench confirmed the acquittal of Ram Swaroop.
The acquittal of Bhagat Ram in respect of the charges under sections 347, 218, 389 and 120B was also affirmed.
The Judges however differed on the point whether the acquittal of Bhagat Ram regarding the charges under section 161 of the Indian Penal Code and section 5(1)(a) of the Prevention of Corruption Act should be maintained; according to Tyagi J. these charges had not been proved, in the opinion of Lodha J. they had been.
In view of this difference, the learned Judges passed the following order: "The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed.
The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed.
In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act, the matter may be laid before Hon 'ble the Chief Justice for referring it to the third Judge.
" Jagat Narayan J., the third Judge to whom the case was referred, held that Bhagat Ram was guilty of offences under Section 161 and also sections 120B, 218 and 347 of the Indian Penal Code.
This Court held in Bhagat Ram vs State of Rajasthan (supra) that it was not permissible for the third Judge to reopen the matter and convict Bhagat Ram of offences under sections 120B, 218 and 347 of the Indian Penal Code because: "The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because acquittal or conviction of Bhagat Ram had 584 been left open because of a difference of opinion between the two Judges.
Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of the order of acquittal made by the trial Judge in respect of Bhagat Ram.
On the contrary, as mentioned earlier, an express order had been made by the Division Bench upholding the acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed.
" Clearly the decision in Bhagat Ram 's case turns on the construction put on the order of the Division Bench referring "the matter" to the third Judge that he was to decide only the question on which the two Judges had differed Bhagat Ram 's acquittal in respect of the offence under section 161 Indian Penal Code and section 5(1)(a) of the Prevention of Corruption Act was justified.
The scope of section 429 was not considered in Bhagat Ram 's case, no question was raised whether the Judges of the Division Bench could restrict the powers of the third Judge under section 429, nor the notice of the Court appears to have been drawn to three earlier decisions of this Court on the point.
In Babu and others vs State of Uttar Pradesh(1) a Bench of five Judges held: "The section [section 429] contemplates that it is for third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit" The next case is Hethubha vs The State of Gujarat(2) which was decided by a Bench of two Judges.
In that case the Sessions Judge acquitted three accused of the charge under section 302 read with section 34 Indian Penal Code but convicted them under section 304 Part II read with section 34.
Two of them were also convicted under section 323 and the third was convicted under section 323 read with section 34.
On appeal to High Court one of the two Judges composing the Division Bench held that it was the first appellant alone who inflicted the fatal injury on the victim and found him guilty under section 302, while the second and third appellants were found guilty under section 324 read with section 34.
The other learned Judge was of the view that all the accused must be acquitted as, according to him, the evidence was not satisfactory.
The case was then placed before a third Judge under section 429 of the Code of 585 Criminal Procedure, 1898 who convicted the first appellant under section 302 of the Indian Penal Code, and the second and third appellants under section 302 read with section 34.
The conviction of the first and the second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld.
In appeal to this Court it was contended that the third Judge under section 429 of the Code of Criminal Procedure, 1898 could only deal with the differences between the two Judges and not with the whole case.
Repelling this contention it was held: "This Court in Babu and Ors.
vs State of Uttar Pradesh(1) held that it was for the third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit.
Mehta.
J. here dealt with the whole case.
Section 429 of the Criminal Procedure Code states "that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion".
Two things are noticeable; first, that the case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case." In Union of India and another vs B. N. Ananti Padmanabiah etc.,(2) which was unreported when Bhagat Ram 's case was decided, a three Judge Bench of this Court confirmed the decision in Hethubha 's case.
In this case the accused who were found guilty of offences under sections 5(2) and 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 as well as sections 467 and 471 of the Indian Penal Code by the Special Judge, Gauhati, challenged the order of conviction in the High Court of Assam and Nagaland.
On difference of opinion between the two Judges of the Division Bench of the High Court, the case was referred to a third Judge.
Before the third Judge new plea was advanced that the Magistrate at Delhi had no jurisdiction to accord sanction to an Inspector of the Delhi Special Police Establishment to investigate the case in Assam.
The third Judge held that an order of a magistrate of the local jurisdiction was necessary, that only a magistrate of the district where the crime was committed and no magistrate outside the jurisdiction was competent to make an 586 order for investigation and accordingly the learned Judge quashed the proceedings before the Special Judge.
In appeal to this Court it was contended that the third Judge could only deal with the difference between the two Judges and not with the whole case.
This contention was rejected with the observation: "This question came up for consideration in the recent unreported decision in Hethubha & Ors.
vs The State of Gujarat (supra).
This Court held that the third learned Judge could deal with the whole case.
The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of Appeal shall be laid before another Judge of the same Court.
The other noticeable feature in section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.
" In view of these authorities which were not noticed in Bhagat Ram 's case we are unable to agree that the learned third Judge in the instant case to whom it was referred under section 429 overstepped the limits of his jurisdiction in deciding the case as he did.
On the merits of the case, we have already indicated how the learned third Judge viewed the evidence; it cannot be said that the view taken was unreasonable or perverse.
The appeal is accordingly dismissed.
N.V.K. Appeal dismissed.
| IN-Abs | The Sessions Judge convicting the respondents under section 302 read with section 34 of the Indian Penal Code, sentenced each of them to imprisonment for life.
On appeal, a Division Bench of the High Court found that the accused caused the injuries but the Judges composing the Division Bench differed on the nature of the offence committed by the accused.
The third Judge to whom the case was referred under section 429 of the Code of Criminal Procedure 1898, found no motive for the accused to commit the offence and held that the evidence of the chief prosecution witness was of a doubtful nature and that it was not safe to find the accused guilty relying on that evidence.
He acquitted both the accused.
In appeal to this Court by the State, it was contended that as the difference between the two Judges of the Division Bench was confined to the nature of the offence only, the third Judge to whom the case was referred in a reference under section 429 of the Code of Criminal Procedure, had no power to acquit the accused by upsetting the concurrent finding of two Judges.
Dismissing the appeal, ^ HELD: 1.
The third Judge to whom the case was referred under section 429 did not over step the limits of his jurisdiction and it cannot be said that the view taken by him was unreasonable or perverse.
[586 D E] 2.
In Bhagat Ram 's Case, the scope of section 429 was not considered, nor any question was raised whether the Judges of the Division Bench could restrict the powers of the third Judge under section 429, nor was the notice of the Court drawn to the three earlier decisions of this Court.
[584 D] 3.
What Section 429 contemplates is that it is for the third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.
[584 E] Babu and Others vs State of Uttar Pradesh ; applied.
The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of 581 Appeal shall be laid before another Judge of the same Court and that the judgment or order shall follow the opinion of the third Judge who can or will deal with the whole case.
[585 D E] Union of India and another vs B. N. Ananti Padmanabiah etc.
Hethubha vs The State of Gujarat ; ; referred to.
|
Civil Appeal No. 219 of 1970.
Appeal by Special Leave from the Judgment and Decree dated 30 4 1969 of the Rajasthan High Court in section B. Civil Regular Second Appeal No. 569/65.
section M. Jain, section K. Jain and Indira Makwana for the Appellant.
R. K. Garg, V. J. Francis and Sushil K. Jain for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
A deed of adoption is alleged to have been executed by one Mansaram on August 10, 1944, stating that he had adopted the appellant, Madan Lal.
A suit to challenge that deed was dismissed by the trial Court.
The learned District Judge, Jodhpur, confirmed the judgment of the trial Court but in second appeal No. 569 of 1965, a learned single Judge of the Rajasthan High Court set aside the judgment of the Courts below and decreed the suit.
By this appeal by special leave, the defendant questions the correctness of the High Court 's judgment dated April 30, 1969.
The principal point of controversy involved in the suit was whether Mansaram was in a fit state of mind when he executed the deed of adoption.
This, substantially, is a question of fact but we find that the trial Court and the District Court wholly ignored the weight of preponderating circumstances on the record and allowed their judgments to be influenced by inconsequential matters.
The High Court was, therefore, justified in reappreciating the evidence and in coming to its own independent conclusion on the basis of that evidence.
596 Earlier, Mansaram had allegedly executed another deed of adoption in favour of the appellant Madan Lal but the Registrar refused to register that deed by his order Exhibit 2 dated January 29, 1940 on the ground that Mansaram, who presented the deed for registration, appeared to him to be a lunatic.
The matter was remanded by the Mahakma Khas to the Registrar with a direction that Mansaram be recalled and the question whether the deed should be registered decided afresh.
The Registrar thereupon examined Mansaram and passed an order Exhibit 3 dated July 14, 1940, stating that Mansaram, no doubt, appeared to be a little better but that, while at one time he talked like a same man, he would, on occasions, fall into a reverie and was completely lost to the world.
The Registrar noted that Mansaram was unable to understand the simplest questions put to him, that he took an unreasonably long time to answer those questions and gave wholly incorrect answers to elementary questions like whom he had adopted and whether he himself was married or unmarried.
The Registrar, therefore, reaffirmed his pre remand view and refused to register the deed.
A suit was then brought by the appellant on September 11, 1940 for the compulsory registration of the aforesaid deed of adoption.
The Court of Joint Kotwal (No. 2), in which the suit was filed, was, concededly, a regular Civil Court of competent jurisdiction at the relevant time.
A written statement was filed in that suit by one Shri Raj Narain, advocate, on behalf of Mansaram admitting the appellant 's claim that he was validly adopted by Mansaram.
The authority of that admission having been challenged, the learned Chief Justice of the High Court, sitting in revision, made an order Exhibit 15 dated August 16, 1941, stating that the matter did not appear to him to be "absolutely clear".
He observed that Mansaram claimed to be an M.A. in English though, in fact, he did not understand a simple sentence in English.
The learned Chief Justice, therefore, examined the matter further and made an order Exhibit 18 dated December 4, 1941, directing that an issue be framed on the question whether Mansaram was of sound mind and was capable of protecting his own interest in the suit.
After the remand, the learned Joint Kotwal recorded the statement of Mansaram on December 14, 1943.
That statement is at Exhibit 5.
Mansaram 's wit and wisdom is reflected in a part of that statement wherein he said that he was 65 years of age and that his mother was about 50 years old.
When the fundamental absurdity of this hypothesis was pointed out to him, he made a feeble attempt to correct himself by saying that his mother may be of 70 years of age.
In fact, the record of the evidence given by Mansaram before the Joint Kotwal shows that he gave, at one time, an impression 597 that his mother was alive and was living with him although, admittedly, she had died long since.
In the circumstances, the Joint Kotwal passed an order on January 4, 1944 (which was the only order to pass) that he had no hesitation in holding that Mansaram was not of sound mind and was incapable of protecting his interest in the suit.
The learned Judge formed the impression, which he recorded in the proceedings, that Mansaram was tutored to make certain statements on the questions arising in the suit and that he looked like a "frightened animal".
The deed of adoption dated August 10, 1944, which is impugned in the present suit, contains a bald assertion that Mansaram had taken the appellant Madan Lal in adoption.
But, significantly, the deed does not mention the year, the date or the place of adoption.
It does not either mention, as adoption deeds generally mention, the names of persons who were present at the time of adoption.
In fact, on the record of this case there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed.
We cannot accept the submission, though strongly pressed upon us by Shri Sobhagmal Jain who appears on behalf of the appellant, that what the plaintiff had challenged in the suit was the validity of the deed of adoption and not the factum of adoption.
On a broad and careful reading of the plaint we are left in no doubt that the real drift of the plaint is that Mansaram was not in a fit state of mind at the relevant time, that no adoption could have taken place in fact and that, therefore, the deed of adoption cannot confer on the appellant the rights of an adopted son.
Relying on the evidence of Somdatt D.W. 2, Shri Raj Narain D.W. 6, a lawyer, Moolraj D.W. 9 and Dr. Umraomal, D.W. 10, Shri Sobhagmal Jain argues that Mansaram was in a fit state of mind when he executed the impugned deed.
We are unable to accept this submission.
Indeed, the halting evidence of Dr. Umraomal itself throws a cloud on the mental capacity of Mansaram and renders it improbable that he could perform or authorise the performance of the act of adoption or that he could have executed the deed of adoption with an understanding mind.
His mental faculties were evidently too enfeebled to enable him to enter into a transaction which, in law has a religious cum spiritual significance and which, in a worldly way, affects valuable rights to property.
The High Court has examined every facet of the evidence with great care and we are in agreement with the learned Judge that Mansaram was not in a fit state of mind when he executed the deed of adoption.
He could 598 not have, possibly, understood the nature and consequences of what he was doing.
In the result, the appeal fails and is dismissed but there will be no order as to costs.
May we add that this judgment, properly understood, will not be a charter for interference by the High Courts with findings of facts recorded by the final Court of facts.
The situation, here, was of an exceptional character where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable tribunal could rationally reach.
N.K.A. Appeal dismissed.
| IN-Abs | A deed of adoption was executed by one M on August 10, 1944 stating that he had adopted the appellant.
A suit to challenge this deed was filed contending that M was not in a fit state of mind when he executed the deed.
The suit was dismissed by the Trial Court and this order was confirmed by the District Court.
In second appeal the High Court set aside the judgments of the Courts below and decreed the suit.
Earlier M had executed another deed of adoption in favour of the appellant, but the Registrar refused to register that deed on the ground that the executant appeared to him to be a lunatic.
The matter was remanded by the Mahakma Khas to the Registrar with a direction that the executant be recalled and the question decided afresh.
The Registrar thereupon examined the executant and finding him unable to understand the simplest questions put to him, and giving wholly incorrect answers to elementary questions like whom he had adopted, reaffirmed his pre remand view and refused to register the deed.
A Suit was then brought by the appellant on September 11, 1940 for the compulsory registration of the aforesaid deed of adoption.
A written statement was filed on behalf of M admitting the appellant 's claim that he was validly adopted.
The authority of that admission having been challenged, the High Court, in revision, examined the matter further and directed that an appropriate issue has been framed on the question.
After the remand, the Joint Kotwal passed an order on January 4, 1944 holding M was not of sound mind and was incapable of protecting his interest in the suit.
The High Court agreed with the findings of the Joint Kotwal.
On appeal by special leave, and dismissing the appeal, it was, ^ HELD: (1) Apart from the bald assertion that the appellant was taken in adoption, the deed does not mention the year, the date or the place of adoption.
It does not either mention the names of persons who were present at the time of adoption.
In fact there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed.
[597 C D] (2) The real drift of the plaint is that M was not in a fit state of mind at the relevant time, that no adoption could have taken place in fact and that, therefore, the deed of adoption cannot confer on the appellant the rights of an adopted son.
[597 E] 595 (3) The argument that M was in a fit state of mind when he executed the deed cannot be accepted.
Indeed the halting evidence of the doctor, one of the witnesses, throw a cloud on the mental capacity of M and renders it improbable that he could perform or authorise the performance of the act of adoption or that he could have executed it with an understanding mind.
His mental faculties were evidently too enfeebled to enable him to enter into a transaction which in law has a religious cum spiritual significance and which, in a wordly way, affects valuable rights to property.
[597 F H] (4) The trial court and the District Court wholly ignored the weight of prepondering circumstances on the record and allowed their judgments to be influenced by inconsequential matters.
The High Court was, therefore, justified in re appreciating the evidence and coming to its own independent conclusion on the basis of that evidence.
[H] (5) The situation here was of an exceptional character, where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable Tribunal could rationally reach.
This judgment will not be a charter for interference by the High Courts with findings of facts recorded by the Final Court of facts.
[598 B C]
|
ivil Appeal Nos.
782 783 of 1973.
Appeals by Special Leave from the Judgment and Order dated 18 11 1972 of the Andhra Pradesh High Court in Cases Referred Nos. 50 and 52 of 1970.
P. A. Francis, K. C. Dua and Miss A. Subhashini for the Appellant.
L. A. Subba Rao for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These two appeals by Special Leave are filed against a common judgment dated November 18, 1971 delivered by the High Court of Andhra Pradesh in Case Referred Nos. 50 and 52 of 1970.
Sri Bommidala Kotiratnam (hereinafter referred to as 'the statutory agent ') is a dealer in tobacco at Guntur in the State of Andhra Pradesh.
During the previous year relevant to the assessment year 1962 63, the statutory agent purchased tobacco in India and exported it to Japan, where it was sold through M/s. Toshoku Ltd. (the assessee involved in Civil Appeal No. 782 of 1973 a Japanese Company and admittedly non resident.
Under the terms of the agreement between the statutory agent and the assessee referred to above, the latter was appointed the exclusive sales agent in Japan for selling tobacco exported by the former.
The assessee was entitled to a commission of 3% of the invoice amount.
The sale price received on the sale of tobacco in Japan was remitted wholly to the statutory agent who debited his commission account with the amount of commission payable to the Japanese company and credited the same in the account of the Japanese company in his books on December 31, 1961.
The amount was remitted to the Japanese company on 589 February 1, 1962 on which date an appropriate debit entry was made in the account of the Japanese company with the statutory agent.
The statutory agent had similarly sold some tobacco during the same accounting period through another non resident business house by name 'M/s Societe Pour Le Commerce International Des Tobacs ' (the assessee involved in Civil Appeal No. 783 of 1973) carrying on business in France.
The terms of agreement were the same as in the case of the Japanese Company referred to above, the only difference being the geographical area in which each of them had to render service as a selling agent.
In this case also the statutory agent made similar entries in his books regarding the commission payable to the assessee and ultimately made a debit entry in the account of the assessee in his books when the amount was transmitted to the assessee.
During the assessment year the question whether the commission amounts sent to the Japanese company and the French business house (hereinafter referred to collectively as 'the assessees ') were assessable in terms of section 161 of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') arose for consideration before the Income tax Officer.
The statutory agent contended that the amounts in question were not taxable in view of the clarification of the legal position by the Board Circular (XXVII I) of 53 No. 26 (II/53) dated July 17, 1953 which stated: "A foreign agent of an Indian exporter operates in his own country and no part of his income arises in India.
Usually his commission is remitted directly to him and is therefore not received by or on his behalf in India.
Such an agent is not liable to Indian Income tax.
" The Income tax Officer, however, came to the conclusion that the sums in question were taxable in view of the decision of this Court in P. V. Raghava Reddi & Anr.
vs Commissioner of Income tax(1) and assessed them under section 143(3) read with section 163 of the Act.
The appeals preferred by the statutory agent against the orders of assessment before the Appellate Assistant Commissioner of Income tax and the Income tax Appellate Tribunal were unsuccessful.
Thereafter the following common question of law was referred to the High Court of Andhra Pradesh under section 256(1) of the Act: "Whether on the facts and in the circumstances of the case the assessment on the appellant under section 161 of the Income tax, Act, 1961 is justified?" 590 The High Court held that the assessments were not justified and answered the question against the Department.
Hence these appeals under Article 136 of the Constitution.
The relevant provisions of the Act on which reliance is placed before us are sections 5(2), 9(1)(i), 160, 161 and 163.
Section 5(2) of the Act which deals with the chargeability of the income of a person who is a non resident under the Act provides that subject to the provisions of the Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived (a) which is received or is deemed to be received in India in such year by or on behalf of such person, or (b) accrues or arises or is deemed to accrue or arise in India during such year.
Explanation 1 to section 5(2) of the Act declares that an income arising abroad can not be deemed to be received in India for the purpose of that section by reason only of the fact that it is included in a balance sheet prepared in India.
Section 9(1)(i) of the Act provides that all income accruing or arising whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India shall be deemed to accrue or arise in India.
The explanation to this clause provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India and in the case of a non resident no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export.
An agent of a non resident including a person who is treated as an agent under section 163 of the Act becomes, according to section 160(1) of the Act, the representative assessee in respect of the income of a non resident specified in sub section (1) of section 9 of the Act.
Section 161 of the Act makes a representative assessee, who is an agent of a non resident personally liable to assessment in respect of the income of the non resident.
Section 163 of the Act defines persons who may be regarded as agents of non residents for the purposes of the Act.
Sections 160, 161 and 163 of the Act are merely enabling provisions which empower the authorities at their option to make assessment on and to recover tax due under the Act from the representative assessee.
It is not disputed in these cases that if the incomes in question of the assessees are taxable, the statutory agent is liable to pay the tax.
The real question which falls for determination is whether the said incomes are taxable.
The facts found in these appeals are that the statutory agent exported his goods to Japan and 591 France where they were sold through the assessees.
The entire sale price was received in India by the statutory agent who made credit entries in his account books regarding the commission amounts payable to the assessees and remitted the commission amounts to them subsequently.
One extra feature in the case of the Japanese company is that it had been appointed as an exclusive agent for Japan.
It is not disputed that the assessees rendered service as selling agents to the statutory agent outside the taxable territories.
In order to establish its case, the Revenue has strongly relied on the decision of this Court in the case of P. V. Raghava Reddy (supra).
A perusal of that decision shows that the said case is distinguishable on facts.
In that case the assessee had exported in the years 1948 49 and 1949 50 certain quantity of mica to Japan.
Mica was not exportable directly to Japanese buyers during those years as Japan was under military occupation but to a State organisation called Boeki Cho (Board of Trade).
To negotiate for order and to handle its other affairs in Japan in connection therewith the assessee engaged San Ei Trading Co. Ltd., Tokyo as its agent.
The Japanese Company was admittedly a 'non resident ' company.
Under the agreements the assessee under took to pay certain percentage of gross sale proceeds as commission to the Japanese Company.
With regard to the mode of payment of commission, the agreements provided a term which read thus: "In view of the difficulties in this country it is requested that the first party credits all these amounts to the account of the second party with them without remitting the same until definate instructions are received by the first party.
" The first party to the agreement was the assessee and the second party was the Japanese Company.
During the two accounting years a total amount of Rs. 13,319 12 4 was paid to the Japanese Company either directly or through others to whom the assessee was instructed by the Japanese Company to pay the amount.
The Court rejected the contention of the assessee that the Japanese Company was not in receipt of the amount in the taxable territories and the amount was not income within the meaning of section 4(1)(a) of the Indian income tax Act, 1922 with the following observations: "This leaves over the question which was earnestly argued, namely, whether the amounts in the two accounting years can be said to be received by the Japanese Company in the taxable territories.
The argument is that the money was not actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt cl.
(a) cannot apply.
We need not consider the fiction, 592 for it is not necessary to go into the fiction at all.
The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company.
Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee.
The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal.
The character of the money changed from a debt to a deposit in such the same way as if it was credited in a Bank to the account of the Company.
Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of section 4(1)(a).
Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way.
In our opinion, the High Court was right in answering the question against the assessee." The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on that basis.
In the cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddi 's case (supra).
It cannot be said that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non residents as the amounts so credited in their favour were not at their disposal or control.
It is not possible to hold that the non resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtor 's own books does not constitute payment which will secure discharge from the debt.
They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.
The second aspect of the same question is whether the commission amounts credited in the books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non resident assessees during the relevant year.
This takes us to section 9 of the Act.
It is urged that the commission amounts 593 should be treated as incomes deemed to have accrued or arisen in India as they, according to the Department, had either accrued or arisen through and from the business connection in India that existed between the non resident assessees and the statutory agent.
This contention overlooks the effect of clause (a) of the Explanation to clause (i) of sub section (1) of section 9 of the Act which provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India.
If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India.
If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India.
(See Commissioner of Income tax, Punjab vs R. D. Aggarwal & Co. & Anr.(1) and M/s. Carborandum Co. vs C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income tax Act, 1922, which corresponds to section 9(1)(i) of the Act.) In the instant case the non resident assessees did not carry on any business operations in the taxable territories.
They acted as selling agents outside India.
The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act.
The commission amounts which were earned by the non resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India.
The High Court was, therefore, right in answering the question against the Department.
For the foregoing reasons, the appeals fail and are hereby dismissed with costs.
(Hearing fee one set).
V.D.K. Appeals dismissed.
| IN-Abs | Dismissing the Revenue appeal by special leave, the Court ^ HELD: (1) The credit entries made in the books of a statutory agent do not by themselves amount to receipt by assessees who are non residents as long as the amounts so credited in their favour are not at their disposal or control.
[592 F] The non resident assessees in this case neither received nor could be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtor 's own books does not constitute payment which will secure discharge from the debt.
They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.
[592 F G] P. V. Raghava Reddi & Anr.
vs Commissioner of Income tax [1962] Supp. 2 S.C.R. 596, distinguished.
(2) Under clause (a) of the Explanation to clause (i) of sub section (1) of section 9 of the Income Tax Act.
in the case of the business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India.
If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India.
If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India.
[593 B D] 588 In the instant case the non resident assessees did not carry on any business operations in the taxable territories.
They acted as selling agents outside India.
The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act.
The commission amounts which were earned by the non resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India.
[593 E G] Commissioner of Income tax, Punjab vs R. D. Aggarwal & Co. & Anr. and M/s. Carborandum Co. vs C.I.T. Madras ; , referred to.
|
Civil Appeal No. 3115 of 1979.
Appeal by Special Leave from the Judgment and Order, dated 6 8 1979 of the Delhi High Court in Civil Writ No. 395 of 1979.
K. K. Venugopal, H. K. Puri and section C. Dhanda for the Appellant.
A. K. Gupta for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Jawharlal Nehru University, considered to be one of the prestigious academic institutions of the country, is the appellant in this appeal by special leave of this Court under Article 136 of the Constitution.
Named after the great liberal, humanist and democrat of the century, the University was established by Act of Parliament to "embody a unique synthesis of Humanities, the Sciences and Technology" and to "endeavour to promote the study of principles for which Jawaharlal Nehru worked during his lifetime, namely, national integration, social justice, secularism, democratic way of life, international understanding and scientific approach to the problems of society". 'The Court ' is the supreme authority of the University and it has the power to review the acts of the Executive Council and the Academic Council.
The Vice Chancellor is the Principal Executive and Academic Officer of the University.
The Executive Council is the executive body of the University, in charge of the general management and administration of the University while the Academic Council is the academic body of the University, responsible for the maintenance of standards of instruction, education and examination within the University.
The Executive Council is empowered to make 'Statutes ' in the manner prescribed by the Jawaharlal Nehru University Act and to make 'Ordinances ' in the manner prescribed by the Statutes.
Ordinances have been duly made and Ordinance 13 deals with the award of M.A., B.A., (Honours) and B.A. (Pass) degrees.
The University offers Integrated Five Year Programmes of studies leading to the award of M.A. Degree in several Disciplines and Languages.
Russian is one of the languages in which such a programme of studies is offered.
The programme is spread over ten semesters, 620 in five academic years.
In the first two semesters, courses described as 'C ' level courses are given, in the next four semesters 'B ' level courses are given and in the last four semesters 'A ' level courses are given.
Each 'C ' level course carries two credits, each 'B ' level course three credits and each 'A ' level course four credits.
Paragraph 7.3 of Ordinance 13 prescribes a minimum of 144 credits in the case of Social Sciences and 176 credits in the case of languages for the Master of Arts Degree, out of which there have to be a minimum of 20 credits from 'C ' level courses, 60 from 'B ' level courses and 64 from 'A ' level courses in the case of Social Sciences and a minimum of 28 from 'C ' level courses, 84 from 'B ' level courses and 64 from 'A ' level courses, in the case of languages.
It is further prescribed that a minimum of 50% of credits but not more than 75% should be in the discipline in which the student is formally registered for the Master 's degree.
It may be mentioned here that the courses in the discipline in which the student is formally registered are known as the 'core courses ' while the other courses for which also the student has to prescribe are known as 'Tool courses ' and 'optional courses '.
Paragraph 7.5 prescribes that the courses on the basis of which a student earns his 'C ' level credits shall be atleast from four disciplines.
Paragraph 7.6 provides that a student shall be required to earn atleast a minimum of ten credits from courses in Tools, Techniques and Methodology.
Paragraph 8 of Ordinance 13 prescribes the method of evaluation.
Sessional work is to carry the same weight as the semester examination.
In each course a student is graded on a ten point scale and the final grade point is obtained by applying the formula Fg = #n Cigi/#n Ci Where F is the final grade point of the student C is the credit of the ith course, G is the grade point secured by the student in the ith course and n is the total number of courses for which the student has prescribed.
A student who fails in a course is required to repeat the course or clear another course in lieu of the course in which he has failed.
Paragraph 9 of the Ordinance prescribes the minimum standard of grade point requirements.
Every student is required to maintain a minimum cumulative grade point average of 2.0 during the first two semesters.
At the end of the sixth semester the cumulative grade point average has to be 4.0 if he is to further continue in the programme of study.
If he is to be awarded the Master of Arts degree he must have a minimum cumulative grade point average of 4.0.
Paragraph 11 of the 621 Ordinance is important for the purposes of this case and it may be extracted here.
As it stood at the relevant time, it was as follows: "The Board of the School, on the recommendation of the Centre, may remove the name of a student from the course on the basis of unsatisfactory academic performance".
The respondent B. section Narwal was admitted, in 1974, to the five year integrated programme of study leading to Master of Arts Degree in Russian Language at the Centre of Russian Studies in the Jawaharlal Nehru University.
As he was seeking a degree in Russian Language, the 'core courses ' had necessarily to be those concerned with Russian language, literature and translation.
In the first two semesters, he failed to take the sessional tests in any of the 'core courses ' in Russian and consequently he was not allowed to sit for the end semester examinations.
He thus failed to clear any of the 'core courses ' in the first two semesters.
He, however, appeared for the examinations in the 'tool ' and the 'optional courses ' in the first two semesters and prescribed for five credits in two courses, in the first semester and eight credits in three courses, in the second semester.
In the third semester the respondent requested permission of the University to repeat the courses of the first semester so as to enable him to pass them.
As a special case, he was permitted to do so, but he failed in all the five courses in respect of which he sought and obtained permission to so repeat.
The respondent, however, passed (securing B+) in an optional course for which he prescribed in the third semester.
At the end of the third semester the net result was that he had not cleared a single 'core course '.
The Centre of Russian Studies was dissatisfied with the performance of the respondent and some other students and at a meeting held on January 20, 1976, the Centre decided to recommend to the Board of Studies, School of Languages, that seven students including the respondent should be struck off the rolls of the University for unsatisfactory performance.
The recommendation of the Centre of Russian Studies was accepted by the authorities of the University and by an office order, dated January 31, 1976, the respondent and others were removed from the rolls of the University for unsatisfactory performance as recommended by the Centre.
The respondent appeared to accept the decision of the University and kept quiet for a period of two years and six months, but in August, 1978, he filed a Writ Petition in the Delhi High Court challenging the order removing him from the rolls of the University 622 on the ground that the order had been made in violation of the principles of natural justice.
The Writ Petition was opposed by the University but when the Writ Petition came for hearing on November 24, 1978, on a query by the Court whether it was feasible to readmit the respondent, the University agreed to reconsider the question sympathetically.
Thereupon, the Writ Petition was dismissed.
Pursuant to the assurance given before the High Court the Centre of Russian Studies considered the question once again and found itself unable to admit the respondent in the middle of the academic year.
The respondent was, however, informed that his case could be considered in the monsoon semester commencing from July 1979, that is, at the beginning of the academic year.
The respondent was advised to send a fresh application for admission.
The respondent being dissatisfied with the attitude of the University filed a fresh Writ Petition in the High Court, once again, challenging the order removing him from the rolls of the University.
The High Court by their judgment, dated August 6, 1979 allowed the Writ Petition firstly on the ground that the respondent was given no opportunity to show cause before action was taken against him and secondly on the ground that the University did not apply its mind to the question whether the petitioner 's performance was unsatisfactory.
The High Court quashed the order removing the respondent from the rolls of the University and gave the following directions to the University: "(1) That the petitioner B. section Narwal should be admitted in the 7th semester which is the monsoon semester of 1979; (2) that the petitioner should be permitted to complete the ten semesters by the end of the academic year 1981 so as to qualify him to get his M.A. Degree; (3) that the petitioner should be permitted to secure the required 180 credits by the end of the academic year 1981 and to make up the deficiency in the credits he has secured so far by taking up the contact hours, sessional tests and semester examination of the appropriate semester before the completion of his 10th semester; (4) that the University shall permit the petitioner to join the appropriate groups for taking up the required courses and make proper arrangements of sessional tests and semester examinations at reasonable intervals so as not to crowd too many academic requirements at one time".
The first question for our consideration is whether the respondent was entitled to an opportunity of being heard before action 623 was taken removing him from the rolls of the University.
What should be mentioned right at the outset is that this is not a case of expulsion of a student pursuant to a claim, by the authorities of a University to discipline the student at their discretion and the right of the student to freedom and justice.
The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts perhaps, are least qualified to judge.
Nor can there be any question of any opportunity to be heard being given.
One does not hear of a claim to be heard when a candidate fails to qualify at an aptitude or intelligence test, written or oral.
When duly qualified and competent academic authorities examine and assess the work of a student over a period of time and declare his work to be unsatisfactory we are unable to see how any question of a right to be heard can arise.
The duty of an academic body in such a case is 'to form an unbiased assessment of the student 's standard of work based on the entirety of his record and potential(1).
That is their function.
The very nature of the function of academic adjudication (if the use of the word adjudication is permissible in the context) appears to us to negative any right to an opportunity to be heard.
If the assessment by the academic body permitted the consideration of 'non academic ' circumstances also, a right to be heard may be implied.
But if the assessment is confined to academic performance, a right to be heard may not be so implied.
Of course, if there are allegations of bias or malafides different considerations might prevail, but in the absense of allegations of bias or malafides we do not think that the declaration by an academic body that a student 's academic performance is unsatisfactory, is liable to be questioned in a Court on the ground that the student was not given an opportunity of being heard.
Large and expanding, perhaps rightly, as the field of natural justice and fail dealing is, necessary and wholesome as 'hearing ' an affected partly even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of 'audi alteram partem '.
Without granting absolutism to academic authorities even in academic matters, we think this case hardly calls for judicial intervention.
The learned Counsel for the respondent relied on Regine vs Aston University Senate(2) to contend that the examining body of the University was bound to give an opportunity to a student before requiring him to withdraw from the University consequent on his 624 failure in the examination.
Admittedly, in that case, the examiners took into consideration a "wide range of extraneous factors some of which their very nature, for example, personal and family problems might only have been known to the students themselves".
Therefore.
Donaldson J., observed that in common fairness the students should have been given an opportunity.
Even so, Lord Parker C. J., did not appear to be convinced about the correctness of Donaldson J 's view and in Herring vs Templeman & Ors.
(supra), the Court of Appeal expressed the view that Donaldson J 's opinion required reconsideration on some suitable future occasion.
From the earlier narration of facts it would be seen that the respondent had not cleared any of the core courses in the first three semesters.
If a candidate for the M.A. degree in a certain discipline fails to clear any single core course in that discipline in the first three semesters, surely, no one can complain that the academic body which has declared the academic performance of the candidate as unsatisfactory has acted arbitrarily in so declaring.
The complaint of the respondent, however, was that he was unable to clear the 'core courses ' in the first two semesters because the University authorities failed to provide teachers to take classes and this was a factor which the authorities of the University had failed to consider and the authorities must, therefore, be held not to have applied their minds.
It appears that in the very first semester the respondent joined the University late and missed several classes.
The result was that while the rest of the students had made sufficient progress in Russian language the respondent who had yet to learn the alphabet could not straightaway join the rest of the students attending the core courses.
The therefore, had to attend other classes in Russian language where Russian language was taught not as a 'core subject ' but as a 'tool or optional subject '.
According, to the respondent there was none to teach Russian language to his group between October 6. 1974 and December 6, 1974.
Again, in the second semester, though there were Russian classes from 10th February to 30th March, 1975, there were no arrangements to teach Russian language to his group after 30th March.
The High Court appeared to attach great importance to the failure of the University to expressly deny the respondent 's allegation that there were no teaching facilities between October 6 and December 6.
1974 and again between 10th February and 30th March, 1975.
True the University did not in express terms deny the allegations.
But the University did mention the following facts in their counter affidavit.
In paragraph 5 it was said 625 "He joined the first semester on 22nd of August 1974 although it started from 9th August 1974.
So much so he was to be grouped together with students who had offered Russian as a non core subject and for whom the Russian classes happened to be starting from 1st September.
Again, from 8th October 1975 to 20th December 1975, he was not regular in attendance.
How could the respondent University afford a special curriculum for the sake of a particular student who does not avail of the regular course of teaching provided by the University to a class of students? It was no fault of the University if the petitioner could not attend the classes when they were conducted, and the petitioner should be blamed for his irregular attendance".
Again in paragraph 9 it was said: "In reply to paragraph 9, I say that the petitioner did not join the course on 9th August 1974 when the classes for Russian as a core subject commenced.
When the Petitioner came on 22nd August 1974 to join the course, the students who had offered Russian as a core subject and started their classes on 9th August, had made substantial progress.
The Petitioner, being a beginner in Russian language, could not be accommodated in any of those groups.
He had, therefore, to be grouped together with students who had offered Russian classes happened to be starting from September 1.
" These statements show that the University did run the necessary classes for the 'core courses ' but the Respondent was unable to take advantage of them on account of his insufficient knowledge of Russian, for which reason he had to attend classes for 'optional ' courses instead of classes for core courses.
The University naturally could not run a special programme for an individual student.
These statements went unnoticed by the High Court.
We are, therefore, of the view that the finding of the High Court that the authorities of the University were oblivious of the circumstance that the University itself had failed to provide teaching facilities in Russian and therefore, must be considered not to have applied their minds is without factual foundation.
We have, therefore, no option but to allow the appeal and dismiss the Writ Petition filed by the Respondent.
We may add that we would not, in any case, have confirmed the directions given by the High Court, as they appear to involve a virtual re writing of that ordinances of the University.
While allowing the appeal, 626 we leave it to the University, to consider if the career of the respondent cannot be salvaged by admitting him into some appropriate semester in accordance with the ordinances, if he chooses to submit an application for admission.
There will be no order regarding costs.
Civil Miscellaneous Petition No. 1926 of 1980 is dismissed.
| IN-Abs | The appellant University offered integrated 5 years programme of study leading to the award of M.A. degree in several disciplines and languages.
The programme was spread over ten semesters in 5 academic years.
The courses in the discipline in which a student was formally registered were known as the 'core courses ' while the other courses for which also the student had to prescribe were known as 'tool courses ' and 'optional courses '.
The respondent was a student of the five year integrated programme of study in the Master of Arts degree in Russian Language at the appellant University.
In the first two semesters, he failed to take the sessional test in any of the 'core courses ' in Russian and consequently he was not allowed to sit for the end semester examinations.
He, however, appeared for the examinations in the 'tool courses ' and the 'optional courses ' in the first two semesters.
In the third semester the respondent requested permission of the University to repeat the courses of the first semester so as to enable him to pass them.
The University permitted him to do so but he failed in all the five courses in which he was permitted to do so.
Dissatisfied with his performance the Centre of Russian Studies recommended to the Board of Studies that the respondent 's name be struck off the rolls and his name was accordingly removed from the rolls.
The High Court, allowed the respondent 's writ petition on the ground that: (1) no opportunity to show cause was given to him before his name was struck off the rolls, and (2) that the University did not apply its mind to the question whether the respondent 's performance was unsatisfactory.
In the appeal to this Court on the question: whether the respondent was entitled to an opportunity of being heard, before removing him from the rolls of the University.
Allowing the appeal: ^ HELD: 1.
In the absence of allegations of bias or mala fides, the declaration by an academic body that a student 's academic performance is unsatisfactory is not liable to be questioned in a Court on the ground that the student was not given an opportunity of being heard.
[623 E F] This is not a case of expulsion pursuant to a claim by the authorities of a University to discipline the student at their discretion and the right of the 619 student to freedom and justice.
The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts are least qualified to judge.
[623 A B] Herring vs Templemen & Ors. & 584; Regina vs Aston University Senata referred to.
|
Civil Appeal No. 224 of 1979.
Appeal by Special Leave from the Judgment and Order dated 6 12 1978 of the Delhi High Court in C.W. No. 1361/78.
P. Parameswara Rao and R. Nagarathnam for the Appellant.
K. Parasaran, Sol.
Genl., V. Gauri Shanker, K.L. Hathi and Mrs. Hemantika Wahi for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a Division Bench judgment dated December 6, 1978 of the High Court of Delhi and arises under the following circumstances.
The appellant was inducted as a tenant by one Mithanlal who was the owner of the premises in question and the rent payable at the time of the tenancy was Rs 55 per month.
The premises were, however, purchased by the Life Insurance Corporation of India (for short, LIC) at a court auction on July 19, 1958 and the appellant in view of the same attorned to the new landlord, namely, the LIC.
The Delhi Rent Control Act of 1958 (hereinafter referred to as the 'Rent Act ') came into force on February 9, 1959 and on July 24, 1969 the new landlord gave a notice under section 106 of the Transfer of Property Act to the appellant determining the tenancy.
This notice, however, was subsequently withdrawn and after some correspondence with the appellant the rent was increased by the LIC from Rs. 55 to Rs. 125 per month.
Sometime towards the end of July 1966, the LIC gave a fresh notice under section 106 of the Transfer of Property Act purporting to determine the tenancy.
Thereafter, there were some parleys between the LIC and the appellant and ultimately the LIC agreed to accept the enhanced rent of Rs. 300 per month from the appellant with effect from December 1, 1976.
On April 23, 1977 the LIC gave another notice under section 106 superseding the previous notice and directing the appellant to vacate the premises on or before May 31, 1977.
As the appellant did not vacate the premises, the LIC filed a complaint with respondent No. 2, the Estate Officer, LIC under the provisions of the (hereinafter referred to as the 'Premises Act ').
Thereafter, the second respondent issued a notice to the appellant under section 4(1) of the Premises Act to show cause why the appellant be not evicted.
The appellant appeared before the Estate Officer and raised certain preliminary objections which having been decided against him, the appellant filed a writ petition in the Delhi High Court against the order of the Estate Officer and reiterated the preliminary objections taken by him before 501 the Estate Officer.
After considering the preliminary objections which mainly related to the question of jurisdiction of the Estate officer to proceed under the Premises Act, the High Court overruled all the objections and dismissed the writ petition in limine, though by a reasoned order.
Hence, this appeal to the Supreme Court.
Before dealing with the contention raised by counsel for the respondent we might mention that the proceedings before the Estate officer under the Premises Act have only been stayed and not yet decided on merits because the appellant wanted the Estate officer to decide the question of jurisdiction as a preliminary issue.
In support of the appeal, Mr. Parmeshwar Rao submitted three main contentions before us.
In the first place, he submitted that the provisions of the Premises Act would have no application to the present premises because the appellant could not be described as an unauthorised occupant as he had entered into possession of the premises long before they were purchased by the LIC.
It was argued that the condition precedent for the assumption of jurisdiction by the Estate officer was that the appellant must be an unauthorised occupant, and if the possession of the appellant was lawful, though the property changed hands subsequently, the appellant could not be dubbed as an unauthorised occupant.
In this connection, reliance was placed on a decision of this Court in Rajkumar Devindera Singh & Anr.
vs State of Punjab & Ors We have gone through the decision cited before us and we find that the provisions of the Punjab Act, which was the subject matter of interpretation by this Court in that case, were substantially and materially different from section 2(2)(g) of the Premises Act which defines unauthorised occupation.
Mr. Rao, however, strongly relied on the following observations made by this Court in the case supra: "If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises.
Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh.
The property was not public premises before it was sold to the Government.
" If these observations of this Court are torn from the context they may presumably support the argument of the appellant but we have to read these observations in the light of the specific provisions of the Punjab, Public Premises and Land (Eviction and Rent Recovery) Act, 502 1959 (hereinafter referred to as the 'Punjab Act ').
Relevant portion of section 3 of that Act may be extracted thus: "For purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises: (a) where he has whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant." [Emphasis Ours] It would be seen that before a person could be said to be in an unauthorised occupation, the Act required the following conditions: (1) that the occupant had entered into possession before or after the commencement of the Act.
(2) that he had entered into such possession otherwise than under and in pursuance of any allotment, lease or grant.
That Act, therefore, lays special stress on only one point, namely, the entry into possession.
Thus, if the entry into possession had taken place prior to the passing of the Act, then obviously the occupant concerned would not be an unauthorised occupant.
What made the occupancy unauthorised was his entry into possession at a particular point of time.
It was in construing these provisions that this Court held that if the appellants in that case were in possession before the sale of the property to the Government, their entry into possession could not be said to be unauthorised.
These observations, however, would have absolutely no application to the instant case where section 2(2)(g) defines unauthorised occupation thus: "unauthorised occupation ', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." To begin with, it is manifest that section 2(2)(g) does not use the word 'possession ' or the words 'entry into possession ' at any point of time at all.
The section merely requires occupation of any public premises.
Entry into possession connotes one single terminus, viz., the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises.
What is germane for the purpose of interpretation of section 2(2)(g) is whether or not the person concerned was in occupation of the public premises when the 503 Premises Act was passed.
In the instant case, it is not disputed that the appellant continued to occupy the property even after the Premises Act came into force and in fact accepted the LIC as his landlord.
In these circumstances, therefore, the case of the appellant squarely falls within the ambit of the definition of 'unauthorised occupation ' as contemplated by section 2(2)(g).
There is yet another aspect of the matter which distinguishes the present case from the language employed in the Punjab Act.
Section 2(2)(g) is an inclusive definition and consists of two separate limbs (1) where a person is in occupation in relation to any public premises without authority for such occupation, and (2) even if the possession or occupation of the tenant continues after the lease is determined.
In the instant case, the lease was doubtless determined by the landlord by a notice under section 106 of the Transfer of Property Act whose validity for purposes of deciding the question of law has not been questioned by the learned counsel for the appellant.
Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined.
The second limb mentioned in section 2(2)(g) is conspicuously absent from the provisions of the Punjab Act.
For these reasons, we overrule the first contention raised by the counsel for the appellant and we hold, agreeing with the High Court, that the appellant was undoubtedly in unauthorised occupation of the premises.
The second contention put forward by Mr. Rao was that in view of the provisions of the Rent Act which override the provisions of the Premises Act, section 14 of the Rent Act completely bars recovery of possession of any premises except in accordance with the procedure laid down in the Rent Act.
It was contended by Mr. Rao that although the Premises Act was passed in 1971, it has been given retrospective effect from 16th September 1958 and, therefore, should be construed as a law having been passed in 1958 and as the Rent Act was passed in 1959 it overrides the Premises Act.
We are, however, unable to agree with this argument.
In the first place, the Premises Act was passed in 1971 and came into force on the 23rd of August 1971, that is to say, long after the Rent Act was passed in 1959.
The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is to say August 23, 1971.
In these circumstances, therefore, the Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act.
It was further contended by Mr. Rao that the Rent Act being a special law as compared to the Premises Act, it will override the Premises Act without going into the question as to which of the two Acts were prior in point of time.
In support of his contention the 504 counsel relied on a decision of this Court in Sarwan Singh & Anr.
vs Kasturi Lal where this Court observed as follows: "When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation 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." (emphasis supplied) It is true that in both the Acts there is a non obstante clause but the question to be determined is whether the non obstante clauses operate in the same field or have two different spheres though there may be some amount of overlapping.
The observations cited above clearly lay down that in such cases the conflict should be resolved by reference to the object and purpose of the laws in consideration.
In Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd.,(2) this Court made the following observations: "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 underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.
" In the light of the principles laid down in the aforesaid cases we would test the position in the present case.
So far as the Premises Act is concerned it operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government.
Thus, the Premises Act has a very limited application.
Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves.
That the authorities to which the Premises Act applies are a class by themselves is not disputed by the counsel for the appellant as even in the case of Northern India Caterers Pvt. Ltd. & Anr.
vs State of Punjab & Anr.
such authorities were held to form a class and, therefore, immune from challenge on article 14 of the Constitution.
Similarly, the summary procedure prescribed by the Premises Act is also not violative of Art, 14 as held by this Court in 505 Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors.(1).
Thus, it would appear that both the scope and the object of the Premises Act is quite different from that of the Rent Act.
The Rent Act is of much wider application than the Premises Act inasmuch as it applies to all private premises which do not fall within the limited exceptions indicated in section 2 of the Premises Act.
The object of the Rent Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation nor Government or Corporate Bodies.
It would be seen that even under the Rent Act, by virtue of an amendment a special category has been carved out under section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity.
Thus, section 25B itself becomes a special law within the Rent Act.
On a parity of reasoning, therefore, there can be no doubt that the Premises Act as compared to the Rent Act, which has a very broad spectrum, is a Special Act and overrides the provisions of the Rent Act.
It was also suggested by Mr. Rao that in view of section 3(a) of the Rent Act, which is extracted below, it would appear that the intention of the legislature in passing the Rent Act was merely to exclude from its operation only premises belonging to the Government and if the intention was to exclude other premises belonging to corporate Bodies or Corporations, then section 3(a) should have been differently worded: "3.
Nothing in this Act shall apply: (a) to any premises belonging to the Government.
" This in our opinion, does not advance the case of the appellant any further because once the Premises Act becomes a special Act dealing with premises belonging to Central Government, Corporations and other statutory Bodies, the Rent Act stands superseded.
We have to consider the provisions of the two Acts, they having been passed by the same legislature, viz., Parliament, and the rule of harmonious construction would have to apply in such cases.
For these reasons, we overrule the second preliminary objection taken by the appellant.
Lastly, it was argued that apart from the Rent Act, section 19 of the (hereinafter referred to as the 'Slums Act '), which also would have to be construed as a Special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the 506 Rent Act and the Premises Act.
This argument appears to us to be without substance.
The Slums Act was passed as far back as 1956 and the Premises Act was subsequent to the Slums Act and would, therefore, prevail over the Slums Act.
Relevant portion of section 19 of the Slums Act may be extracted thus: "19.
(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 Clearance) Amendment Act, 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;" A perusal of section 19 of the Slums Act clearly shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in section 2 of the Premises Act.
The Premises Act being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act on the same lines of reasoning as we have indicated in the case of the Rent Act.
For these reasons, therefore, the last contention put forward by the counsel for the appellant is also overruled.
The High Court had also overruled all these preliminary objections more or less on the same reasons as given by us though not in such details.
It is, however, not necessary for us to remand the matter to the trial court for decision of the case on merits because the Solicitor General having agreed to give two years ' time to the appellant to vacate the premises on filing the usual undertaking, the appellant does not want to contest the proceedings before the Estate officer, LIC and has undertaken to give vacant and peaceful possession to the respondent on August 1, 1982.
Meanwhile, the appellant shall keep on paying the usual rent.
The appellant shall also file an undertaking accompanied by an affidavit to the effect that it shall hand over vacant and peaceful possession to the respondent on or before August 1, 1982 and shall not induct any tenant on the premises.
The undertaking shall be filed within three weeks from today.
The subject matter of the appeal is accordingly disposed of finally.
N.V.K. Appeal dismissed.
| IN-Abs | The L.I.C. (respondent No. 1) purchased a building at a court auction.
The appellant was inducted as a tenant by the prior owner of the premises.
The L.l.
C. gave notice under section 106 of the Transfer of Property Act directing the appellant to vacate the premises.
As the appellant did not vacate the premises the L.I.C. filed a complaint with the Estate Officer, L.I.C. (respondent No. 2) under the provisions of the Public Premises (Eviction of Unauthorised occupants) Act 1971, who issued a notice to the appellant under section 4(1) of the Act to show cause why the appellant be not evicted.
Before the Estate Officer the appellant raised preliminary objections which related to th equestion of jurisdiction of the Estate Officer to proceed under the Premises Act.
The Estate Officer decided the question against him and the High Court confirmed the order.
In appeal to this Court on behalf of the appellant it was contended: (1) The appellant could not be described as an 'unauthorised occupant ' within the meaning of section 2(2)(g) of the 1971 Act because he had entered into possession of the premises long before they were purchased by the L.I.C.; (2)(i).
The Premises Act of 1971 which had been given retrospective effect from the 16th September, 1958 should be construed as a law having been passed in 1958 and so construed the Rent Act (The Delhi Rent Control Act) passed in 1959 over rides the Premises Act; (ii) The Rent Act which is a special law would override the Premises Act and (iii) The intention of the Legislature in passing the Rent Act as seen from section 3(a) was merely to exclude from its operation only premises belonging to the Government and if the intention was to exclude other premises belonging to corporate bodies or Corporations then section 3(a) would have been differently worded.
Apart from the Rent Act section, Section 19 of the which is also a Special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the Rent Act and the Premises Act.
499 Dismissing the Appeal: ^ HELD: (1)(a) The appellant was undoubtedly in unauthorised occupation of the premises.
[503 D] (b) Section 2(2)(g) does not use the word 'possession ' or the words 'entry into possession ' at any point of time at all.
The section merely requires occupation of any public premises.
Entry into possession connotes one single terminus, viz., the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises.
[502 G H] In the instant case the lease was determined by the landlord by a notice under section 106 of the Transfer of Property Act.
Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined.
[503 Cl Raj Kumar Devendra Singh & Anr.
vs State of Punjab and Ors. ; distinguished.
2(i) The Premises Act was passed in 1971 and came into force on 23rd August, 1971 that is long after the Rent Act was passed in 1959.
The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is August 23, 1971.
The Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act.
[503 G] (ii) The scope and the object of the Premises Act is quite different from that of the Rent Act.
The Rent Act is of much wider application, inasmuch as it applies to all private premises, which do not fall within the limited exceptions indicated in section 2 of the Premises Act.
The object of the Rent Act is to afford special protection to all the tenants or private landlords who are neither a Corporation nor Government or Corporate Bodies.
Even under the Rent Act, a special category has been carved out by section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity.
Section 25B, therefore, becomes a special law within the Rent Act.
Therefore, the Premises Act as compared to the Rent Act, is a Special Act and overrides the provisions of the Rent Act.
[505 B C] Sarwan Singh & Anr.
vs Kasturi Lal ; & Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd. ; referred to.
(iii) once the Premises Act becomes a Special Act dealing with the premises belonging to the Central Government, Corporations and other statutory bodies, the Rent Act stands superseded.
[505 F] 3.
Section 19 of the Slums Act shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in section 2 of the Premises Act The Premises Act, being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act.
[506 D]
|
Civil Appeal No. 1163 1167 of 1973.
Appeal by Special Leave from the Judgment and order, dated 15 3 1971 of the Allahabad High Court in Wealth Tax Reference No. 232 of 1964.
section T. Desai and Miss A. Subhashini for the Appellant.
section N. Kacker, V. K. Pandita and E. C. Agarwala for the Respondent.
VENKATARAMIAH, J. These appeals by special leave under Article 136 of the Constitution are directed against the judgment, dated March 15, 1971 of the Allahabad High Court in Wealth Tax Reference No. 232 of 1964.
The facts of the case may be briefly stated thus: The Income tax Appellate Tribunal, Allahabad Bench, Allahabad referred under section 27 (1) of the (hereinafter referred to as `the Act ') to the High Court of Allahabad for its opinion the following question of law arising out of the assessment orders made under the Act in respect of the assessment years 1957 58 to 1961 62: Whether the interest of the assessee in the trust fund amounted to an annuity exempt under section 2 (e) (iv) of the ?" The assessee concerned in this case is Shri P. K. Banerji.
Under a deed of trust, dated October 26, 1937 executed by his father, Shri Pyarey Lal Banerji (hereinafter referred to as `the settlor ') the assessee became entitled to receive the income arising out of the trust fund during his (assessee 's) life time after the death of the settlor subject to the liability to pay out of such income certain specified sums periodically as mentioned in the deed to two other persons.
After the death of the assessee, the income of the trust fund was directed to be paid in equal shares to the two other persons referred to above and if either of them should die before the death of the asessee then the whole of such income had to be paid 659 to the survivor of them during his or her life.
There were certain other directions in the trust deed with regard to the disposal of the income arising out of the trust fund with which we are not concerned in this case.
The trust fund consisted of certain India Government loan bonds or securities issued from time to time under which certain specified interest was payable.
The total face value of such bonds amounted to Rs. 10 lacs.
The Imperial Bank of India, Calcutta (hereinafter referred to as `the trustee ') was appointed as the trustee under the trust deed and the Government loan bonds or securities referred to above were transferred and endorsed in favour of the trustee with a direction to discharge the obligations referred to in the trust deed.
Under clause (1) of the trust deed, the settlor directed the trustee to retain with it the said Government loan bonds or securities and upon redemption of any of them to invest the proceeds thereof in the purchase of three and a half per cent Government promissory notes (old issue) or if this was not practicable in any other security of the Government of India or if this too was not practicable then in any other securities authorised for the investment of trust funds by the or any statutory modification thereof and to hold and stand possessed of the Government loan bonds or securities referred to above or any other investments representing the same as the trust fund to be used in accordance with the directions contained in the deed.
The following are the relevant recitals of the trust deed, dated October 26, 1937 containing directions regarding the manner in which the income arising from the trust fund should be appropriated or spent: "(a) The Bank shall pay the net income of the Trust Fund to the settlor during his life and may instead of paying the same to him direct, credit the same to the current account of the settlor with the Bank, so long as there shall be any such current account.
(b) From and after the death of the settlor, the Bank shall pay the net income of the trust fund to the settlor 's son Pranab Kumar Banerji during his life, if he should survive the settlor subject to the payment there out every six months on the thirtieth day of April and thirty first day of October in every year of a sum of Rupees Nine hundred to the settlor 's son Sunab Kumar Banerji and a sum of Rupees six hundred to the settlor 's daughter in law Purnima Banerji during his or her life, if he or she shall survive the settlor.
(c) If the said Pranab Kumar Banerji shall predecease the settlor or if he should die after having survived the settlor, then 660 in the former case on and from the death of the settlor and in the latter case on and from the death of the said Pranab Kumar Banerji, the income of the trust fund shall be paid in equal shares to the said Sunab Kumar Banerji and Purnima Banerji (if he or she should be then alive) or the whole of such income to the survivor of them during his or her life.
(d) If the said Pranab Kumar Banerji, Sunab Kumar Banerji and Purnima Banerji shall predecease the settlor or if they or any one or more of them shall die after having survived the settlor then in the former case on and from the death of the settlor and in the latter case on and from the death of the survivor of the said Pranab Kumar Banerji, Sunab Kumar Banerji and Purnima Banerji, the Bank shall stand possessed of the trust fund and the income thereof UPON SUCH TRUSTS as the said Pranab Kumar Banerji by any deed or deed with or without power of revocation may appoint or by will or codicil shall at any time or times appoint AND IN DEFAULT of and so far as any such appointment shall not extend IN TRUST for the settlor 's nephew Manoj Kumar Banerji and the settlor 's niece Jhuni Banerji (now minors), if they are both alive, or such one of the two as may be alive and in default of both for the person or persons who under the law relating to intestate succession would on the death of the settlor have been entitled thereto, if the settlor had died possessed thereof and intestate.
" In exercise of the power that he had reserved to himself under the trust deed, dated October 26, 1937 to modify the terms thereof, the settlor executed another trust deed, dated April 28, 1950 by which clauses (b) and (c) of the trust deed, dated October 26, 1937 extracted above were substituted by the following clauses: (b) From and after the death of the settlor the Bank shall pay the net income of the trust funds to the settlor 's son Pranab Kumar Banerji during his life time, if he should survive the settlor.
(c) If the said Pranab Kumar Banerji shall predecease the testator or if he should die after having survived the settlor then in the former case on and from the death of the settlor and in the latter case on and from the death of the said Pranab Kumar Banerji, the income of the trust funds should be paid in equal shares to my son Sunab Kumar Banerji and my daughter in law Shakuntala Banerji (if he or she should be then alive) or the whole of such income to the survivor of them during his or her life.
" 661 The name 'Purnima Banerji ' occurring in clause (d) of the trust deed, dated October 26, 1937 was substituted by the name 'Shakuntala Banerji ' by the trust deed, dated April 28, 1950.
The resulting position was that the trustee was obliged to pay the net income of the trust fund to the settlor during his life time and after his death the trustee had to pay the net income of the trust fund to the assessee during his life time if he should survive the settlor.
If the assessee should pre decease the settlor then on and from the death of the settlor and if the assessee should die after the settlor on and from the death of the assessee, the income of the trust fund had to be paid in equal shares to Sunab Kumar Banerji, the other son of the settlor and Shakuntala Banerji, the daugther in law of the settlor (if he or she should be then alive) and the whole of such income had to be paid to the survivor of them during his or her life.
We are concerned in this case principally with the character of the benefit conferred on the assessee by clause (b) of the trust deed as substituted by the trust deed dated April 28, 1950.
The settlor died sometime in 1952 and since then the assessee was receiving the net income from the trust fund in accordance with the said clause as the sole beneficiary.
During the assessment proceedings under the Act relating to the assessment years in question, the assessee contended before the Wealth tax Officer, Allahabad that since the corpus of the trust fund was vested in the trustee and not in him, the value of the trust fund should not be included in his total wealth and that in any event as he had only the right to receive an annuity under the trust deed, the trust fund should not be taken into account by reason of section 2 (e) (iv) of the Act.
The Wealth tax Officer rejected the contentions of the assessee and included the full market value of the trust fund in the total wealth of the assessee in all the five assessment orders passed by him.
The appeals filed by the assessee before the Appellate Assistant Commissioner of Wealth tax, Allahabad were dismissed.
On further appeal, the Income tax Appellate Tribunal, Allahabad Bench, Allahabad confirmed the orders passed by the Wealth tax Officer and the Appellate Assistant Commissioner of Wealth tax in so far as the question of non applicability of section 2 (e) (iv) of the Act was concerned but it held that the inclusion of the entire value of the corpus in the computation of net wealth was not correct as the assessee had merely a life interest in it.
Accordingly it directed the Wealth tax Officer to modify the assessments valuing the life interest of the assessee according to recognised principal of valuation.
Thereafter at the instance of the assessee the common question of law set out above was referred to the High 662 Court of Allahabad under section 27 (1) of the Act.
All the five references relating to the five assessment years were heard together by the High Court in the year 1970.
Since the High Court was of the view that it was necessary to direct the Income tax Appellate Tribunal to submit a supplementary statement of the case on the following questions: "(1) Whether the right of the assessee to receive the amounts in terms of the deeds of trust, referred to above is an annuity" within the meaning of section 2 (e) (iv) of the Act? (2) if so, whether the terms and conditions relating to such annuity preclude the commutation of any portion thereof into a lump sum grant?" it directed the Tribunal by its order, dated February 27, 1970 to submit a supplementary statement of the case on the above questions.
In accordance with the directions of the High Court, the Tribunal submitted a supplementary statement of the case in August, 1970 stating that the asset in question was not an annuity referred to in section 2 (e) (iv) of the Act.
The cases were there after heard by the High Court.
By its judgment, dated March 15, 1971, the High Court answered the common question of law referred to it in the affirmative in favour of the assessee, holding that the interest of the assessee in the trust fund amounted to an annuity exempt under section 2 (e) (iv) of the Act.
Dissatisfied with the judgment of the High Court, the Department has come up in appeal to this Court.
There is no dispute that in the case of assets chargeable to tax under the Act which are held by a trustee under a duly executed instrument in writing whether testamentary or otherwise, wealth tax can be directly levied upon and is recoverable from the person on whose behalf the assets are held.
Section 3 of the Act creates the said charge in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and Company at the rate or rates specified in Schedule I to the Act. 'Net wealth ' according to section 2 (m) of the Act means the amount by which the aggregate value computed in accordance with the provisions of the Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under the Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than those debts referred to in subclauses (i) to (iii) thereof.
In section 2 (e) of the Act, the expression "assets" is defined as including property of every description, 663 movable or immovable but not including in relation to the assessment year commencing on the 1st April, 1969 or any earlier assessment year those items which are mentioned in sub clauses (i) to (v) of section 2 (e) (1).
Sub clause (iv) of section 2 (e) (1) of the Act which is relevant for the purpose of this case excludes from the definition of the word 'assets ' a right to an annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant.
In order to claim that an item of property should not be treated as an asset for purposes of the Act by virtue of sub clause (iv) of section 2 (e) (1), it has to be established (i) that it is an annuity and (ii) that commutation of any portion thereof into a lump sum grant is precluded by the terms and conditions relating thereto.
The property in question is the right of the assessee to receive the net income of the trust funds during his life time.
The primary facts that emerge from the orders of the Tribunal are (1) that under the trust deed, the settlor intended that after the settlor 's death, the assesee should be the sole beneficiary of the net income from the trust fund during his (assessee 's) life time (2) that the assessee had been treating himself as the owner of the trust fund for purposes of income tax payable by him and had been declaring the income of the trust as his own income and claiming in his own income tax returns deduction for tax paid at source by the trust; (3) that in fact the assessee was the sole beneficiary of the net income derived from trust fund; (4) that he had under the trust deed the right of appointment of his successors under certain circumstances and (5) that the trustees had the power to invest the proceeds of the Government loan bonds or securities which constituted the trust fund upon their redemption as provided in the deed and that therefore the net income realisable from the trust fund was subject to variation.
One of the significant features of the trust deed, dated October 26, 1937 is that what was payable to the assessee was not a periodical payment of a definite predetermined sum of money but only the net income of the trust funds, although it was possible to predicate at any given point of time such income with some certainty having regard to the fact that the trust fund in the instant case consisted of Government loan bonds or securities, the proceeds of which on redemption were liable to be invested in other securities as indicated in the trust deed, dated October 26, 1937.
The principal reason given by the High Court to arrive at the conclusion that the property in question was an annuity is set out in its judgment thus: 664 "In the case before us the property settled under the trust deed consists of Government securities, and it is apparent from the schedule appended to the deed that they bear interest at a fixed and determined rates.
The settlor conferred upon the trustee the power to redeem the government securities and to invest the proceeds in the purchase of 3 1/2% Government promissory notes (old issue) or in any other securities of the Government of India, or that if that was not practicable then in any other securities authorised for the investment of the trust fund by the .
There is nothing on the record before us to show that the original securities comprising the trust property were converted or replaced by securities not bearing a fixed rate of interest and returning a fixed and definite income.
Proceeding, therefore, on the basis that a definite and certain income is yielded by the securities, we have no hesitation in holding that what the assessee received was an amount which did not depend upon or was related to the general income of the estate in the sense that it fluctuated with a fluctuating income.
Having regard to the character and nature of the property settled under the trust, no question arises of a rise or fall in the amount of income produced by the trust property and, therefore, in a real sense what the assessee is entitled to is a definite and certain sum.
Also, having regard to the terms of the trust deed it is not possible to say that the interest of the assessee constitutes an interest in the capital of the trust fund.
Therefore, upon the test laid down by Jenkins L. J. in Duke of Norfolk: In re: Public Trustee vs Inland Revenue Commissioner , it cannot be described as a life interest.
We are fortified in the view we are taking by the decision, on somewhat comparable faces of the Andhra Pradesh High Court in Commissioner of Wealth tax vs Nawab Fareed Nawaz Jung & Ors., It is true that the assessee is entitled to the net income only and that because the trustee has the right to deduct from the gross income its remuneration, its annual income fee and the expenses in managing the trust estate, the net income may vary from year to year.
Yet even here the remuneration and the annual income fee can be charged by the trustee at a fixed rate only, and any variation in the net income may be attributed to the varying expenses from year to year in managing the trust estate.
We have already pointed out that freedom from variation is not an absolute test determining the character of an annuity.
We are of opinion that where it varies merely because 665 of the charges and expenses payable on account of the administration of the trust it does not lose its character as an annuity.
Upon the aforesaid consideration, it seems to us that the right of the assessee to the net income from the trust property under the trust deed can be described in law as a right to an annuity." The High Court appears to have felt that the facts of the case were distinguishable from the facts in Ahmed G. H. Ariff & Ors.
vs Commissioner of Wealth tax Calcutta(1) and the facts in Commissioner of Wealth tax, Gujarat II vs Mrs. Arundhati Balkrishna(2).
We shall presently deal with these two cases.
The word 'annuity ' is not defined in the Act.
In one of the earliest legal compilations of the English law, the term 'annuity ' has been explained as an yearly payment of a certain sum of money granted to another in fee or for life or for a term of years either payable under a personal obligation of the grantor or charged upon his pure personality, although it may be made a charge upon his freehold or leasehold lend in which latter case it is commonly called a rent charge (See Co. Litt 144b).
In Halsbury 's Laws of England, Third Edition (Vol. 32, page 534 para 899), the meaning of the said expression is given as a certain sum of money payable yearly either as a personal obligation of the grantor or out of property not consisting exclusively of land; it differs from a rent charge in that a rent charge issues out of land.
In Bignold vs Giles.(3) 'annuity ' is described thus: "An annuity is a right to receive de anno in annum a certain sum; that may be given for life, or for a series of years it may be given during any particular period, or in perpetuity; and there is also this singularity about annuities, that although payable out of the personal assets, they are capable of being given for the purpose of devolution, as real estate; they may be given to a man and his heirs, and may go to the heir as real estate; so an annuity may be given to a man and the heirs of his body; that does not, it is true, constitute an estate tail, but that is by reason of the Statute De Donis, which contains only the word 'tenements ' and an annuity, though a hereditament, is not a tenement; and an annuity so given is a base fee.
" 666 It is further observed in the above decision thus: "But this appears to me at least clear, that if the gift of what is called an annuity is so made, that, on the face of the will itself, the testator shows his intention to give a certain portion of the dividends of a fund, that is a very different thing; and most of the cases proceed on that footing.
The ground is, that the court construes the intention of the testator to be, not merely to give an annuity, but to give an aliquot portion of the income arising from a certain capital fund".
The three illustrations given under section 173 of the dealing with bequests of annuities also refer to the payment of certain definite sums periodically and they do not refer to periodical payments of income arising out of any trust fund.
It is against this background that this Court proceeded to decide the case of Ahmed G. H. Ariff (supra).
In that case, the Court was called upon to determine whether the benefits conferred on the appellants under a deed creating a wakf alal aulad were annuities or not.
The relevant part of the deed, which declared that the ultimate benefit in the case of complete intestacy of the descendants of the settlor was reserved for poor Musalmans of Sunni community deserving help, read thus: "After payment of all necessary outgoings such as establishment charges, collections charges, revenue taxes, costs of repairs, law charges and other expenses for the upkeep and management of the said wakf property, the mutawalli or mutawallis shall apply the net income of the said wakf property as follows, viz.: (a) in payment to me during the term of my life of one fifth of the said net income by monthly instalments; (b) in payment to each of my sons during the respective terms of their lives one sixth of the said net income by monthly instalments; (c) in payment to my wife, Aisha Bibi, during the term of her life one tenth of the said net income by monthly instalments.
The moneys payable as aforesaid to such of my sons as are minors shall until they attain the age of majority be respectively invested (after defraying the expenses of their maintenance and education) in proper securities or in landed property in Calcutta and such securities or property shall be 667 made over to the said sons on their respectively attaining the age of majority." This Court held that the right of the beneficiary to receive an aliquot share of the net income of the properties was an asset covered by the definition of section 2(e) of the Act and not a mere 'annuity ' and affirmed the decision of the Calcutta High Court in Ahmed G. H. Ariff vs Commissioner of Wealth Tax Calcutta.(1) In the case of Mrs. Arundhati Balkrishna (supra) to which one of us was a party, under two trusts created by the father of the assessee and one trust created by her mother in law, she was to be paid annually the net income of each of the trusts after deducting costs and expenses of administration of the trust.
Under the terms of the trusts, after the life time of the assessee, the corpus of the trust in each case had to be dealt with as provided in them.
Since the assessee was entitled to the whole residue of the income from the trust funds available after defraying expenses of the trust and not any specified or pre determined amount, the High Court of Gujarat held that the right of the assessee under each of the trust deeds was not an annuity but only amounted to a life interest.
The decision of the High Court of Gujarat was later affirmed by this Court in Commissioner of Wealth tax, Gujarat vs Arundhati Balkrishna(2) in which it was observed thus: "On an analysis of the relevant clauses in the three trust deeds, it is clear the assessee was given thereunder a share of the income arising from the funds settled on trust.
Under those deeds she is not entitled to any fixed sum of money.
Therefore, it is not possible to hold that the payments that she is entitled to receive under those deeds are annuities.
She has undoubtedly a life interest in those funds.
In Ahmed G. H. Ariff vs Commissioner of Wealth tax (1966) 59 I.T.R. 230 (Cal.), a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot share of the net income of the wakf property is an "asset" within the meaning of the , and the capital value of such a right is assessable to wealth tax.
Therein, the Court repelled the contention that the right in question was an "annuity".
This decision was approved by this Court in Ahmed G. H. Ariff vs Commissioner of Wealth tax Civil Appeals Nos.
2129 2132 of 1968 decided on 668 August 20, 1969) and the same is binding on us.
A similar view was taken by another Bench of the Calcutta High Court in Commissioner of Wealth tax vs Mrs. Dorothy Martin In that case under the will of the assessee 's father the assessee was entitled to receive for her life the annual interest accruing upon her share in the residuary trust fund.
The Wealth tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under section 16 (3) of the Wealth tax, 1957.
That order was confirmed by the Appellate Assistant Commissioner but the Tribunal in appeal excluded the same in the computation of the net wealth of the assessee.
On a reference made to the High Court, it was held that, on a construction of the various clauses in the will, the assessee was entitled to an aliquot share in the general income of the residuary trust fund and not a fixed sum payable periodically as "annuity" and, therefore, the value of her share was an asset to be included in computing his net wealth.
These decisions in our view correctly lay down the legal position.
In this view, it is not necessary to consider whether the income receivable by the assessee under those deeds, either wholly or in part, is capable of being commuted into a lump sum grant.
For the reasons mentioned above, we agree with the High Court that payments to be made to the assessee under the three trust deeds cannot be considered as annuities, and, hence, she is not entitled to the benefits of section 2(e) (iv).
" It is, however, contended on behalf of the assessee in this case that since the trust fund consisted of Government securities which were yielding definite annual income by way of interest and there was no evidence of the said securities having been converted into other securities yielding higher or lower income, it should be assumed that the benefit conferred on the assesee was only an 'annuity ' and not a life interest.
This contention has to be rejected for the very reason for which a similar contention was rejected by this Court in Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur(1) in the following words: "From these clauses it is clear that the intention of the Maharaja was that the assessee should get a half share in the income of the trust fund.
Neither the trust fund was fixed nor the amount payable to the assessee was fixed.
The only thing certain is that she is entitled to a 15/30 share from out 669 of the income of the trust fund.
That being so, it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fund.
Mr. Setalvad, learned counsel for the assessee, contended that during the year with which we are concerned, there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth tax, we would be justified in holding that the amount receivable by the assessee in the year concerned was an annuity.
We see no force in this contention.
The question whether a particular income is an annuity or not does not depend on the amount received in a particular year.
What we have to see is what exactly was the intention of the Maharaja in creating the trust.
Did he intend to give the assessee a pre determined sum every year or did he intend to give her an aliquot share in the income of a fund? On that question, there can be only one answer and that is that he intended to give her an aliquot share in the income of the trust fund.
An income cannot be annuity in one year and an aliquot share in another year.
It cannot change its character year after year.
From the facts found, it is clear that the assessee has life interest in the trust fund.
" The decision of the High Court of Andhra Pradesh in Commissioner of Wealth tax, A. P. vs Nawab Fareed Nawaz Jung &Ors.(1) on which the High Court has relied in this case to the extent it takes a contrary view must be held to be incorrect.
We may now to consider the decision in In re Duke of Norfolk: Public Trustee vs Inland Revenue Commissioner(2) on which the High Court relied heavily in arriving at its conclusion.
The point which arose for consideration in the above case was whether, where one continuing annuity for two or more lives was given to two or more persons in succession and charged on property, on the death of any annuitant, other than the last to die, estate duly was payable under section 1 of the Finance Act, 1894 on the footing that it was the annuity which passed on the annuitant 's death.
The estate duty authorities claimed estate duty on the death of an annuitant, who was not the last of the annuitants to die on the slice of the capital required to produce the annuity, on the footing that as annuitant, the deceased had an interest on the capital charged with the annuity and that cesser of that interest gave rise to a benefit taxable under 670 section 2(1)(b) of the Finance Act, 1894.
The Public Trustee, in whom the estate vested, claimed that estate duty became payable on the value of a continuing annuity for the life of the annuitant who succeeded to the annuity on the death of the deceased annitant.
Jenkins L.J. in the course of his judgment in the above case explained the difference between an annuity and a life interest thus: "An annuity charged on property is not, nor is it in any way equivalent to, an interest in a proportion of the capital of the property charged sufficient to produce its yearly amount.
It is nothing more or less than a right to receive the stipulated yearly sum out of the income of the whole of the property charged (and in many cases out of the capital in the event of a deficiency of income).
It confers no interest in any particular part of the property charged, but simply a security extending over the whole.
The annuitant is entitled to receive no less and no more than the stipulated sum.
He neither gains by a rise nor loses by a fall in the amount of income produced by the property, except in so far as there may be a deficiency of income in a case in which recourse to capital is excluded.
On the other hand, a life interest in a share of the income of property is equivalent to and indeed constitutes, a life interest in the share of the capital corresponding to the share of income.
The life tenant enjoys the share of income whatever it may amount to, and his interest, viewed as a life interest in capital, consists of a constant proportion of the whole property, whether the income is great or small, and whether the capital value of the property rises or falls.
The property which changes hands on his death (or in other words passed under section 1) thus clearly consists of the designated share of capital, which then passes from his beneficial enjoyment to that of another, an annuity cannot be so related to any fixed proportion of capital: See De Trafford vs Attorney General Evershed M. R. who delivered a separate judgment agreed with the observation and stated thus: "In the case of one who has enjoyed for his life (say) one fourth of the income of an estate, it seems to me in accordance with common sense and a natural use of language to say that he enjoyed for his life, that he was life tenant of, a fourth part of the (corpus of the) estate; and, accordingly, that upon his death a fourth part of the estate passed to the next successor.
But no such language can, in my judgment, appropriately be used in the case of an annuitant.
He is in no way concerned 671 with changes in the yield of the estate; his right to his annuity will continue whatever income the estate may produce or (unless he has a right to look income only) though the estate produce no income at all." The learned Master of the Rolls distinguished the cases of In re Northcliffe(1) and Christie vs Lord Advocate(2) from the case before him thus: "Both the two last mentioned cases were instances of dispositions of aliquot shares of the general income of an estate to be enjoyed in succession, as distinct from an annuity or yearly sum, which, even though variable (as in the case of In re Cassel (1927) 2 Ch.
275) is in no way dependent upon or related to the general income of the estate." Accordingly the contention of the Crown was rejected.
On going through the above decision carefully, we do not find any support for the contention urged on behalf of the assessee in the present case.
The decision is quite clear on the point that when the payment is dependent upon the income of the corpus, it cannot be called an annuity and that an annuity even though it may be variable as in the case of In re Cassel(3) can in no way be dependent upon or related to the general income of the estate.
The High Court was, therefore in error in relying upon the decision in Duke of Norfolk: In re.
Public Trustee (supra) for holding that notwithstanding the existence of the possibility of variation in the payment to be made in the above case to the assessee depending upon the income of the fresh securities to be acquired by the trustee on the redemption of any of the securities transferred at the time of the execution of the trust deed, the payment would amount to an annuity.
On a consideration of the decisions cited before us, we feel that in order to constitute an annuity, the payment to be made periodically should be a fixed or pre determined one, and it should not be liable to any variation depending upon or on any ground relating to the general income of the fund or estate which is charged for such payment.
In the instant case, as observed in the case of Her Highness Maharani Gayatri Devi of Jaipur (supra) what we have to see is the intention of the settlor, whether he wanted that the assessee should get a pre determined sum every year or whether the assessee 672 should get the whole net income of the trust fund.
Since the intention of the settlor was indisputably the latter one, the right of the assessee cannot be treated as an annuity.
An additional factor which requires us to take the same view is that under the trust deed the trustees had been given the power to reinvest the proceeds of the Government securities which leads to the possibility of variation of the income and consequently of the amount to be received by the assessee.
The fact that no such reinvestment had taken place during the relevant years is immaterial.
In view of the foregoing, the appeals are allowed, the judgment of the High Court is set aside and the question referred to the High Court under section 27(1) of the Act is answered in the negative and against the assessee.
In the circumstances of the case, the assessee shall pay the costs of the Department.
(Hearing fee one set).
Appeal allowed.
| IN-Abs | The respondent assessee, under a deed of trust dated October 26, 1937 executed by his father Pyarey Lal Banerji which was modified by another trust deed dated April 28, 1950, received "the net income of the trust funds" after the death of his father.
The assessee treated this amount as an annuity and claimed exemption under section 2(e)(iv) of the Wealth Tax Act, 1957.
The claim for exemption was negatived by all the authorities including the Appellate Tribunal, Allahabad Bench.
The Tribunal, however, holding that the inclusion of the entire value of the corpus in the computation of net wealth was not correct as the assessee had merely a life interest in it, directed the Wealth Tax Officer to modify the assessments valuing the life interest of the assessee according to recognised principles of valuation.
On a reference, at the instance of the assesee, the High Court held the interest of the assessee in the trust fund amounted to an annuity exempt under section (e)(iv) of the Wealth Tax Act.
E Allowing the appeal by special leave and answering against the assessee, the Court ^ HELD: (I) In order to claim that an item of property should not be treated as an asset for purposes of the Wealth Tax Act, by virtue of subclause (iv) of section 2(e)(1), it has to be established (a) that it is an annuity and (b) that commutation of any portion thereof into a lumpsum grant is precluded by the terms and conditions thereto.
[663 C] (2) It is true that the word "annuity" is not defined in the Act.
In order to constitute an annuity, the payment to be made periodically should be a fixed or pre determined one and it should not be liable to any variation depending upon or any ground relating to the general income of the fund or estate which is charged for such payment.
The intention of the settlor must be seen, whether he wanted that the assessee should get a pre determined sum every year or whether the assessee should get the whole net income of the trust fund.
[665 C, 671 G] In the instant case, since the interest of the settlor was that the whole net income of the trust fund should go to the assessee, the right of the assessee cannot be treated as an annuity.
The fact that under the trust deed the trustee had been given the power to reinvest the proceeds of the Government securities leads to the possibility of variation of the income and Consequently of the amount to be received by the assessee.
make it clear that it was not an annuity.
The fact that no such reinvestment had taken place during the relevant year is immaterial.
[671 H 672 B] 658 Ahmed G.H. Ariff & Ors.
vs Commissioner of Wealth tax, Calcutta, ; Commissioner of Wealth tax, Gujarat II vs Mrs. Arundhati Balkrishna, (1968) 70 I.T.R. 203, explained and applied.
Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur , followed.
Commissioner of Wealth tax, A.P. vs Nawab Fareed Nawaz Jung & ors. , overruled.
In re Duke of Norfolk: Public Trustee vs Inland Revenue Commissioners distinguished.
|
ition No. 444 of 1979.
(Under Article 32 of the Constitution) F. section Nariman & Anil B. Dewan, B. D. Barucha, Ravinder Narain and Talat Ansari for the Petitioner.
A. Subhashini for Respondent No. 1 Lal Narain Sinha, Att.
and U.P. Singh for the Respondents Nos.
Soli J. Sorabjee, V. K. Pandita and E. C. Agarwala for R.4.
Subrata Roy Chowdhury, Biswaroop Gupta, Bhaskar Gupta, Surhid Roy Chowdhury & D. N. Gupta for Respondent No. 5.
The Judgment of the Court was delivered by 675 GUPTA, J.
In this petition under Article 32 of the Constitution of India dealer seeks relief from the same sales being assessed to sales tax both under the Central Sales Tax Act and the U.P. Sales Tax Act.
The first petitioner Indian Oil Corporation Limited, IOC for short, are a government company incorporated under the engaged inter alia in the manufacture and marketing of petroleum products.
The second petitioner is the Managing Director and a shareholder of IOC.
Union of India has been impleaded as the first respondent in the petition.
The 2nd respondent is the Assistant Superintendent of Commercial Taxes, Central Circle, Bihar.
The 3rd and 4th respondents are respectively the State of Bihar and the State of U.P.
The 5th respondent Indian Explosives Limited are a company having their registered office at Calcutta; they have a factory at Panki, Kanpur in Uttar Pradesh manufacturing urea fertilizers.
IOC have a refinery at Barauni in the State of Bihar and also a depot at Panki, Kanpur.
In 1966 IOC completed pipeline from their refinery at Barauni in Bihar to Kanpur in U.P. through Patna in Bihar and Mughalsarai and Allahabad both in U.P.
At their Barauni refinery IOC manufacture naphtha which is the principal raw material for production of fertilizers.
On February 9, 1970 an agreement was entered into by and between IOC and the 5th respondent in terms of which IOC were to sell and the 5th respondent were to buy the entire quantity of naphtha required for the 5th respondent 's fertilizer factory at Kanpur.
Below is a summary of the different clauses of the agreement that are relevant for the present purpose; the numbers given to the different paragraphs in this summary follow the numbering of the corresponding clauses of the original agreement: 1.
The agreement shall be deemed to have come into force from September 10, 1969 [when the supply of naphtha commenced] and shall remain in force till December 31, 1980.
It shall continue to be in force thereafter unless terminated by either party giving to the other not less than one year 's prior notice of the intention to terminate the agreement.
The naphtha to be supplied shall be of the specification set out in Schedule I of the agreement.
(i) The quantity of naphtha that the 5th respondent agree to buy and IOC agree to sell shall be 2,50,000 tonnes per annum which is the maximum rate per annum.
(iii) The naphtha shall be supplied against the buyer 's indents in writing addressed to the seller at the seller 's Panki/Kanpur installation.
676 (iv) It is agreed that the buyer 's requirement of naphtha for the first four years shall be 95,000, 1,70,000, 2,00,000 and 2,25,000 tonnes respectively.
(viii) In case the buyer fails to take delivery during any year the quantities of naphtha as stipulated above for reasons other than Force Majeure at their Kanpur plant, the seller shall be entitled to sell the quantity which the buyer has failed to lift.
Similarly if the seller fails to deliver the stipulated quantities of naphtha during any year for reasons other than Force Majeure at their Barauni refinery and/or the transportation system from Barauni to their Panki installation, the buyer shall be entitled to purchase the quantity not delivered in that year from other sources.
The supply of naphtha to the buyer shall be made from the seller 's refinery at Barauni.
The price of naphtha shall be exclusive of transfer charges, excise duty and all other taxes levies which shall be recovered by the seller from the buyer at actual rates prevailing and levied by concerned agencies from time to time.
(i) Naphtha shall be supplied through a pipeline at the fence of the buyer 's fertilizer factory and the pipeline between the buyer 's and the seller 's fences shall be constructed by the buyer at their expense.
(ii) The cost of transferring naphtha by the pipeline from the point of its manufacture to the fence of the buyer 's fertilizer factory shall be borne by the buyer.
The seller shall provide at their cost storage facilities at the seller 's Panki/Kanpur installation of a capacity equivalent to not less than 30 days ' requirement of the buyer.
(iii) Three samples of naphtha for testing will be taken from the seller 's tank at their Panki/Kanpur installation prior to transfer in the presence of buyer 's representatives at such frequency as may be mutually agreed.
According to the 5th respondent, since the commencement of supply of naphtha under the aforesaid agreement IOC went on charging from them sales tax at the rate prescribed by the U.P. Sales Tax Act on the plea that the sales were chargeable under the said Act.
On or about March 16, 1974 the assessing authority under the U.P. Sales Tax Act assessed IOC to sales tax under the said Act on their total turnover for the assessment year 1969 70 including 677 the sales of naphtha to the 5th respondent.
The 5th respondent filed a writ petition in the Allahabad High Court challenging the assessment made on the basis that the sales were local and asserting that they were inter state sales.
Before the writ petition was disposed of the U.P. assessing authority assessed IOC for the assessment year 1970 71 treating the sale of naphtha to the 5th respondent as local sale.
On August 27, 1975 the Allahabad High Court allowed the said writ petition quashing the impugned order of assessment to the extent it sought to levy tax under the U.P. Sales Tax Act on the sales of naphtha to the 5th respondent.
The High Court held that the sales under the agreement dated February 9, 1970 were inter state sales.
IOC preferred an appeal against the order of assessment in respect of the assessment year 1970 71 and although the appeal was on grounds not relevant for the present purpose, it is necessary to refer to it because at a later stage IOC had the scope of the appeal enlarged, induced by the 5th respondent according to IOC, by including a ground that the sales of naphtha under the agreement were interstate sales.
On June 29, 1978 the 2nd respondent levied sales tax under the Central Sales Tax Act on the sales of naphtha by IOC to the 5th respondent for the assessment year 1970 71 treating them as inter state sales.
Under section 9 of the Central Sales Tax Act the tax levied under that Act is collected in the State from which the movement of the goods commenced; in this case the movement commenced from Barauni in Bihar.
IOC preferred an appeal against this order to the appellate authority.
For the assessment year 1971 72 the assessing authority under the U.P. Sales Tax Act treated the sales of naphtha to the 5th respondent as inter state sales presumably in view of the aforesaid judgment of the Allahabad High Court.
This assessment order was challenged by the Commissioner of Sales Tax, U.P. in revision before the appropriate authority.
For the same assessment year the Bihar authority assessed the sales on the basis they were inter state sales.
For the next assessment year 1972 73 the U.P. authority again treated the sales as inter state sales and again the order was challenged in revision by the Commissioner of Sales Tax, U.P.
The Bihar authority also treated the sales for that year as inter state sales.
Thereafter for the assessment years 1973 74 and 1974 75 somewhat surprisingly the U.P. assessing authority went back on the view taken in the immediately preceding two years and again treated the sales as local sales and the 5th respondent preferred appeals from these two orders of assessment.
In this confused situation IOC filed the instant writ petition in this Court on May, 1, 1979.
Meanwhile the appellate authority under the U.P. Sales Tax Act dealing with the appeal preferred by IOC against the order of assessment relating to 678 the year 1970 71 had remanded the case to the assessing authority and the assessing authority by his order dated December 20, 1979 held that the sales were local sales.
The 5th respondent had started several other proceedings to avoid the sale of naphtha to them under the agreement dated February 9, 1970 being assessed to sales tax under the U. P. Act.
On August 29, 1977 they filed a suit in the Calcutta High Court against IOC seeking to restrain IOC from collecting sales tax from them under the U.P. Sales Tax Act.
The 5th respondent also filed two writ petitions in the Allahabad High Court, Nos. 102 and 103 of 1978.
The first petition challenges the assessment order relating to the year 1970 71 made by the U.P. authority.
The second petition is directed against the revisional proceedings started by the Commissioner of Sales Tax, U.P. in respect of the assessment years 1971 72 and 1972 73.
All these proceedings are still pending.
The petitioners ' case in the present writ petition is that the sales of naphtha to the 5th respondent were local sales in Kanpur and as such they were assessable under the U.P. Sales Tax Act and that the assessment orders dated June 29, 1978 and November 30, 1978 respectively for the assessment year 1970 71 and 1971 72 made by the Bihar Sales Tax authority under the Central Sales Tax Act are in violation of the fundamental rights guaranteed under Articles 19 and 31 of the Constitution of India.
The petitioners seek a writ in the nature of certiorari for quashing the aforesaid assessment orders and a writ in the nature of mandamus directing the Bihar sales tax authority to forebear from assessing the sales of naphtha to the 5th respondent on the basis they were inter state sales.
Alternatively the petitioners pray, in the event it is held that "the sales are inter state sales and not intra state sales", for "appropriate reliefs, orders, and directions" directing the State of U.P. not to assess, levy or recover any sales tax on the sales of naphtha to the 5th respondent under the agreement dated February 9, 1970.
Section 3(a) of the provided that "a sale or purchase of goods shall be deemed to take place in the course of inter state trade or commerce if the sale or purchase occasions the movement of goods from one State to another".
It is now well settled by a series of decisions of this Court that a sale shall be an inter state sale under section 3(a) if there is a contract of sale preceding the movement of goods from one state to another and the movement is the result of a covenant in the contract of sale or is an incident of that contract; in order that a sale may be regarded as an inter state sale it is immaterial whether the property in the 679 goods passes in one state or another.
Some of these decisions are: Tata Iron & Steel Co. Ltd. vs section R. Sarkar ; , Kelvinator of India Ltd. vs The State of Haryana ; , Oil India Ltd. vs The Superintendent of Taxes & others ; , Balabhagas Hulaschand vs State of Orissa ; and Union of India and Anr.
vs K. G. Khosla & Co. (P) Ltd. & Ors.
[1979] 3 SCR 453.
In our opinion the terms of the agreement dated February 9, 1970 summarized above make it quite clear that the sales of naphtha to the 5th respondent were inter state sales.
Under clause 4 of the agreement seller is "to make the supply of naphtha to the buyer from its refinery at Barauni".
The source of supply is thus the seller 's refinery at Barauni in Bihar and the destination is the buyer 's factory at Kanpur.
This one clause alone is sufficient to prove that the sales in question were inter state sales.
However, on behalf of the petitioners and the State of U.P. it is contended that the sales were not inter state sales and were local sales within the State of Uttar Pradesh.
It is pointed out from clause 3(iii) that supplies of naphtha are made on the buyer 's indents in writing addressed to the seller at their Kanpur installation and not at their refinery at Barauni which, it is contended, shows that the supplies are made from IOC 's storage at Kanpur to the 5th respondent 's factory also at Kanpur.
It is also contended that the supply of naphtha to the buyer 's factory at Kanpur involves two movements, one from Barauni to Kanpur for storage at the seller 's depot, and the other from the depot to the buyer 's factory.
This contention is based on clause 7(i) of the agreement which states that naphtha shall be supplied at the fence of the buyer 's factory through a pipeline between the buyer 's and the seller 's fences constructed at the buyer 's expense.
It is argued that this stipulation shows that the movement of naphtha from Barauni is arrested at the seller 's Kanpur depot and is followed by another movement from there to the buyer 's factory which proves that the sales are local sales and not inter state because in an inter state sale the movement of goods is the immediate and direct result of the contract of sale.
Clause 3(iii) of the agreement which says that the naphtha shall be supplied against indents in writing addressed to the seller at their installation at Kanpur cannot be read in isolation.
Sub clause (iv) of clause 3 sets out the details of the buyer 's requirement for the first four years and thereafter.
Under clause 8 IOC are bound not only to bring the contractual quantity of naphtha from Barauni to the seller 's Kanpur installation but also to provide at their own cost storage facilities at Kanpur of a capacity equivalent to not less than 30 days ' requirement of the buyer.
The indents are therefore 680 not outside the agreement but are relatable to the buyer 's requirements under the agreement.
It is obvious that the sales under the agreement are not possible without inter state movement of naphtha.
Clause 3 read with clause 8 also proves that really thare are no two movements but only one movement from Barauni to Kanpur pursuant to the contract of sale and the agreement regarding storage facilities provided in clause 8 is only for operational convenience, it is only a mechanism devised to facilitate the transfer of naphtha through the seller 's pipeline to their depot at Kanpur and from there to the Buyer 's factory at Kanpur through the pipeline constructed at the buyer 's cost.
It is relevant in this connection to note that under clause 7(ii) the cost of transferring naphtha from Barauni to the buyer 's fence is to be borne by the buyer.
Each case turns on its own facts and the question is whether applying the settled principle which we have mentioned above to the facts of the present case the sales can be said to be inter state sales.
An attempt to show that some of the factors present in the instant case are present or absent in some case or other in which this Court held the sale to be a local sale or inter state sale hardly serves any useful purpose.
On the facts of the present case the sales are clearly inter state sales and the State of U.P. had therefore no jurisdiction to assess the petitioners to sales tax under the State Act.
As the movement of naphtha commences from Barauni in Bihar, the sales tax payable on the sales of naphtha under the agreement dated February 9, 1970 can be assessed and collected only by the authorities in the State of Bihar on behalf of the Government of India in view of section 9 of the .
On behalf of the State of Bihar a point was taken that the present petition under Article 32 of the Constitution of India complaining of violation of the fundamental right guaranteed by Article 31 of the Constitution was not maintainable after the repeal of Article 31 by the Forty Fourth Amendment of the Constitution with effect from June 20, 1979.
The petition however complains also of infringement of Article 19 and therefore does not cease to be maintainable.
Counsel for the 5th respondent sought to raise a question regarding the justification of treating freight as part of the sale price, but that is not a matter that arises for consideration on the present writ petition filed by IOC.
In the result the alternative prayer made in the writ petition succeeds, the assessment orders for the assessment years 1970 71, 1973 74 and 1974 75 passed by the Sales Tax Officer, U.P. and the revision proceedings initiated by the Commissioner of Sales Tax, 681 U.P. for the assessment years 1971 72 and 1972 73 are quashed and respondent No. 4, the State of Uttar Pradesh, is directed to refund to IOC the sales tax collected from them on the sales of naphtha to the 5th respondent under the agreement dated February 9, 1970 and, further, not to levy sales tax on the sales under the said agreement under the U.P. Sales Tax Act.
The writ petition is allowed as indicated above; in the circumstances of the case we make no order as to costs.
N.K.A. Petition allowed.
| IN-Abs | The Indian Oil Corporation was a manufacturer of naphtha with its works at Barauni in Bihar while the 5th respondent was a manufacturer of fertilizers with its factory at Kanpur.
The Indian Oil Corporation supplies naphtha to the 5th respondent 's fertilizer factory at Kanpur through a pipeline.
Both the buyer and the seller have their offices at Kanpur and indents are addressed by the buyer to the seller at their Kanpur office.
The pipeline from Barauni to the petitioner 's depot at Kanpur has been constructed by the petitioner, the pipeline between the buyer 's and the seller 's fences is however constructed by the buyer, the 5th respondent.
On the question whether the sale of naphtha should be taxed under the Central Sales Tax Act or under the U.P. Sales Tax Act, the U.P. authorities insisted that since the indent had been placed by the buyer on the seller at their Kanpur Office the sale was a local sale while the sale tax authorities in Bihar insisted that since there was transfer of goods from one State to another the sale was inter State chargeable to tax under the Central Sales Tax Act.
Allowing the petition, ^ HELD: On the facts of the present case the sales are clearly inter State sales and the State of U.P. had no jurisdiction to assess the petitioners to sales tax under the State Act.
As the movement of naphtha commences from Barauni in Bihar the sales tax payable on the sales under the agreement can be assessed and collected only by the authorities in the State of Bihar on behalf of the Government of India in view of section 9 of the Central Sales Tax Act.
[680E] It is now well settled by a series of decisions of this Court that a sale shall be an inter State sale under section 3(a) if there is a contract of sale preceding the movement of goods from one State to another and the movement is the result of a covenant in the contract of sale or is an incident of that contract; in order that a sale may be regarded as an inter State sale it is immaterial whether the property in the goods passes in one State or another.
[678H 679A] 674 Tata Iron & Steel Co. Ltd. vs section R. Sarkar ; ; Kelvinator of India Ltd. vs State of Haryana ; ; Oil India Ltd. vs Superintendent of Taxes ; Balabhagas Hulaschand vs State of Orissa ; ; Union of India vs K. G. Khosla & Co. (P) Ltd. [1979] 3 SCR 453, referred to.
The terms of the agreement make it quite clear that the sales of naphtha to the respondent were inter State sales.
The source of supply is the seller 's refinery at Barauni in Bihar and the destination is the buyer 's factory at Kanpur.
This clause alone is sufficient to prove that the sales in question were inter State sales.
[679B C] Clause 3(iii) of the agreement which says that the naphtha shall be supplied against indents in writing addressed to the seller at their installation at Kanpur cannot be read in isolation.
Sub clause (iv) of clause 3 sets out the details of the buyer 's requirement for the first four years and thereafter.
Under clause 8 Indian Oil Corporation are bound not only to bring the contractual quantity of naphtha from Barauni to the seller 's Kanpur installation but also to provide at their own cost storage facilities at Kanpur of a capacity equivalent to not less than 30 days ' requirement of the buyer.
The indents are therefore not outside the agreement but are relatable to the buyer 's requirements under the agreement.
It is obvious that the sales under the agreement are not possible without inter State movement of naphtha.
Clause 3 read with clause 8 also proves that really there are no two movements but only one movement from Barauni to Kanpur pursuant to the contract of sale and the arrangement regarding storage facilities provided in clause 8 is only for operational convenience, it is only a mechanism devised to facilitate the transfer of naphtha through the seller 's pipeline to their depot at Kanpur and from there to the buyer 's factory at Kanpur through the pipeline constructed at the buyer 's cost.
It is relevant in this connection to note that under clause 7(ii) the cost of transferring naphtha from Barauni to the buyer 's fence is to be borne by the buyer.
[679G H; 680A C]
|
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.